On September 18, according to the official website of Shaanxi Provincial Market Regulatory Bureau, in order to help relevant operators in the building materials industry better identify and prevent monopoly risks, the Bureau formulated the Guidelines for Anti-monopoly Compliance in the Building Materials Industry of Shaanxi Province (hereinafter referred to as the Guidelines). The term "building materials industry operators" as mentioned in
these Guidelines refers to natural persons, legal persons and non-legal organizations engaged in the production and operation of building materials such as clinker, cement, concrete, glass, sand and gravel aggregates, bricks, tiles and stones, or providing construction services.
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Article 2 Effectiveness
of the Guidelines These Guidelines only provide general guidance on the anti-monopoly compliance of operators in the building materials industry for reference. The contents of the legal provisions in the Guidelines are general and principled, and the specific provisions shall be subject to the legal provisions. Article
3 Basic Concepts
From the meaning of the legislative purpose of Article 1 of the Anti-monopoly Law, the Anti-monopoly Law does not oppose monopoly status, but monopolistic behavior. There are three types of monopolistic behavior in
China's Anti-monopoly Law: monopoly agreements, abuse of dominant market position, and concentration of undertakings that have or may have the effect of eliminating and restricting competition. In addition, administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs shall not abuse their administrative power to exclude or restrict competition. The term "building materials industry operators" as mentioned in
these Guidelines refers to natural persons, legal persons and non-legal organizations engaged in the production and operation of building materials such as clinker, cement, concrete, glass, sand and gravel aggregates, bricks, tiles and stones, or providing construction services. Article
4 Chapter VII of
the Anti-monopoly Law specifies the legal liability, which not only regulates the monopoly behavior of operators, but also regulates the abuse of administrative power by administrative organs to exclude and restrict competition, and not only regulates the organizations of trade associations to reach monopoly agreements with operators, but also regulates the monopoly behavior of operators. It also regulates the behavior of operators organizing other operators to reach monopoly agreements or providing substantive assistance, not only the operators who refuse and obstruct the investigation according to law, but also the individuals who refuse and obstruct the investigation according to law. Operators in the
building materials industry need to pay attention to the fact that the legal liability for monopolistic acts is more severe, such as the anti-monopoly law enforcement agencies for the implementation of monopoly agreements, abuse of market dominance, illegal concentration of operators and other acts, which can impose a fine of up to 10% of the sales of the operator in the previous year. If the circumstances are particularly serious, the impact is particularly bad, and the consequences are particularly serious, the Anti-monopoly Law Enforcement Agency of the State Council may determine the amount of the fine at a rate of not less than two times but not more than five times the amount of the aforementioned fine. The above provisions indicate that operators can be fined up to 50% of their sales in the previous year for monopolistic acts. Therefore, the operators of building materials industry should attach importance to anti-monopoly compliance management. Article
5 Principles
of Supervision The anti-monopoly law enforcement agencies shall adhere to the following principles in carrying out anti-monopoly supervision over the building materials industry:
(1) Promoting the healthy development of the industry. Anti-monopoly supervision promotes economic development, especially the development of real economy, by maintaining the competition order of building materials industry, promoting the optimization of resource allocation, technological progress and efficiency improvement, while striving to safeguard the legitimate rights and interests of all parties in the building materials industry. To realize the harmonious coexistence and healthy development of the building materials industry as a whole.
(2) Impartially supervise all kinds of subjects. We should treat all kinds of market players, such as state-owned and private, provincial and provincial, online and offline, domestic and overseas, equally, and strive to prevent and stop monopoly, protect fair competition in the building materials industry, promote high-quality development of building materials enterprises, and constantly enhance their competitiveness.
(3) Stimulating the innovation vitality of the industry. Fair and just competition order is conducive to giving full play to the decisive role of the market in the allocation of resources, better playing the role of the government, improving the efficiency of economic operation, attracting more investment, fostering the core competitiveness of the industry, stimulating the innovation and creativity of the industry, and promoting the development of the industry. It is conducive to guiding and encouraging the operators of the building materials industry to devote more resources to technological innovation, quality improvement, service improvement and mode innovation, to prevent and stop the elimination and restriction of competition, to inhibit the innovation power of the building materials industry, and to build new advantages and new momentum for the development of the building materials industry.
(4) Continuously improve governance capacity. The basic system, regulatory principles and analytical framework determined by the Anti-monopoly Law and relevant supporting regulations, rules and guidelines are applicable to all market players in the building materials industry. In practice, anti-monopoly law enforcement agencies will strengthen competition analysis and legal argumentation, constantly strengthen and improve anti-monopoly supervision, and enhance the pertinence and scientificity of anti-monopoly supervision according to the development status, law of development and characteristics of the building materials industry and the specific circumstances of the case. Article
6 The definition
of relevant market refers to the commodity scope and geographical scope in which operators compete for specific commodities or services in the building materials industry within a certain period of time. Defining the commodity market and regional market of building materials industry is a tool to analyze competitive behavior, which needs to follow the general principles determined by the Anti-monopoly Law and the Guidelines of the Anti-monopoly Committee of the State Council on the Definition of Relevant Markets, while taking into account the characteristics of the building materials industry and making specific analysis with individual cases. It should be noted that defining the relevant market is not a necessary condition for investigating monopoly cases, such as monopoly cases of horizontal price agreement type, which can not define the relevant market in practice.
(1) Relevant commodity markets. The basic method of defining the relevant commodity market of building materials industry is substitution analysis. When defining the relevant commodity market in the case, the demand substitution analysis can be conducted based on factors such as product characteristics, business model, application scenarios, and user groups; when the competitive constraints of supply substitution on the operator's behavior are similar to demand substitution, the supply substitution analysis can be considered based on factors such as market entry, technical barriers, and transfer costs.
(2) Relevant regional markets. Because of product characteristics and transportation costs, the products of building materials industry generally have regional characteristics. When defining the relevant regional market in a case, we can comprehensively evaluate and consider the actual area where most users choose commodities, the use habits of users, the provisions of relevant laws and regulations, and the degree of competition constraints in different regions. Chapter
II Monopoly Agreements
Article 7 On Monopoly Agreements
The Anti-monopoly Law prohibits operators from reaching and implementing monopoly agreements. The determination of monopoly agreements in the building materials industry shall be judged in accordance with the specific provisions of Chapter II of the Anti-monopoly Law, and the corresponding regulations are shown in the Provisions on the Prohibition of Monopoly Agreements. Monopoly agreements explicitly listed in Articles 17 and 18 of the Anti-monopoly Law shall be prohibited in accordance with the law; agreements that meet the conditions stipulated in Article 20 of the Anti-monopoly Law shall not be prohibited in accordance with the law. Article
8 The operators of the building materials industry shall pay attention to the form
of monopoly agreement. Monopoly agreement refers to the formation of agreements, decisions or other concerted actions between operators to exclude or restrict competition. Agreements and decisions can be written, oral and other forms. Other concerted acts refer to the acts in which the operators have not explicitly concluded agreements or decisions, but in essence there are concerted acts. Monopoly agreements can be generally divided into horizontal monopoly agreements and vertical monopoly agreements. Article
9 Horizontal monopoly agreements show that
building materials industry operators with competitive relations should avoid reaching fixed prices, changing prices, dividing markets, restricting production (sales), restricting new technologies (products), Horizontal monopoly agreements such as boycott transactions:
(1) exchanging sensitive information such as price, sales volume, cost and customers by means of industry meetings;
(2) communicating by means of technology;
(3) using data, algorithms, rules, platforms, etc. To achieve coordinated behavior;
(4) through the development of self-regulatory conventions, industry codes and other forms to achieve coordinated behavior;
(5) other ways to help achieve synergy. Operators in the
building materials industry need to pay attention to the fact that operators with competitive relations should avoid exchanging sensitive information such as price, output and sales in meetings or gatherings of the same industry, even if they have not explicitly signed a written agreement or reached an oral agreement, but after exchanging the above sensitive information, they should adjust commodity prices at a unified time. There is also the possibility of being identified as collaborative behavior. Article
10 Leniency System
The leniency system means that the anti-monopoly law enforcement agencies encourage the building materials industry operators participating in the horizontal monopoly agreement to report the relevant information of the horizontal monopoly agreement and provide important evidence on their own initiative, and at the same time stop the suspected illegal acts and cooperate with the investigation. The anti-monopoly law enforcement agencies may mitigate or exempt the penalties imposed on the operators who meet the lenient applicable conditions according to law. The specific standards and procedures for
building materials industry operators to apply for leniency shall be governed by the Provisions on the Prohibition of Monopoly Agreements and the Guidelines for the Application of the Leniency System in Horizontal Monopoly Agreement Cases of the Anti-Monopoly Committee of the State Council.Article
11 Vertical monopoly agreements indicate that
building materials industry operators and trading counterparts shall avoid reaching vertical monopoly agreements such as fixing resale prices and limiting minimum resale prices by the following means:
(1) fixing the price level of commodities resold to third parties, the range of price changes, The profit level or other expenses such as discounts and handling charges;
(2) setting the minimum price for the goods on resale to a third party, or setting the minimum price for the goods on resale to a third party by limiting the range of price changes, the profit level or other expenses such as discounts and handling charges;
(3) fixing the price of a resale commodity or setting the minimum price of a resale commodity by other means.
When building materials industry operators have certain market power, their behavior of requiring trading counterparts to provide trading conditions equal to or superior to other competitors in terms of commodity prices and quantities may constitute monopoly agreements or abuse of market dominance. Article
12 Organizing Monopoly Agreements
Operators in the building materials industry shall avoid organizing other operators to reach monopoly agreements or providing substantive assistance to other operators to reach monopoly agreements. Article
13 The associations of building materials industry should pay attention to the responsibility
of trade associations. Anti-monopoly supervision promotes the sustainable and healthy development of building materials industry by protecting the market order of fair competition. Trade associations should actively study the Anti-monopoly Law and relevant regulatory policies, effectively enhance the awareness and ability of anti-monopoly compliance, and promote it. Avoid organizing building materials industry operators to reach monopoly agreements prohibited by the Anti-monopoly Law. At the same time, trade associations should strengthen industry self-discipline, guide the operators of building materials industry to compete according to law, operate in compliance with regulations, and jointly maintain the market order of fair competition. Chapter
III Abuse of Market Dominant Position
Article 14 On Abuse of Market Dominant Position
The Anti-monopoly Law prohibits operators with market dominant position from abusing market dominant position. Chapter III of the Anti-monopoly Law and the Provisions on the Prohibition of Abuse of Market Dominant Position shall apply to the determination of abuse of market dominant position in the building materials industry. Usually, first of all, define the relevant market, analyze whether the operator has a dominant position in the relevant market, and then analyze whether it constitutes an abuse of market dominance according to the specific circumstances of the case. Article
15 The concept
of dominant market position Article 22 of the Anti-monopoly Law stipulates that a dominant market position refers to a market position in which an operator has the ability to control the price, quantity or other trading conditions of a commodity in the relevant market, or to hinder or affect the ability of other operators to enter the relevant market. Article
16 Determination and presumption
of dominant market position The anti-monopoly law enforcement agency shall, in accordance with the provisions of Articles 23 and 24 of the Anti-monopoly Law and in light of the characteristics of the building materials industry, determine or presume whether the operator has a dominant market position. In practice, anti-monopoly law enforcement agencies can judge whether the relevant operators have a dominant market position either by identification or by presumption. Operators in the
building materials industry need to pay attention to the fact that when their size and scale reach a certain level, such as market share exceeding 50%, they should pay more attention to the compliance management of anti-monopoly related parties than ordinary operators, and regulate their own business practices.
It should be noted that market share is an important indicator for determining and presuming whether an operator has a dominant market position, but it is not the only criterion. Even if the market share of an operator in the relevant market is less than 50%, it does not necessarily exclude the possibility that the operator has a dominant market position. Article
17 Manifestations
of abuse of dominant market position Building materials industry operators with dominant market position shall avoid engaging in the acts specified in Article 22 of the Anti-monopoly Law:
(1) Selling goods at unfair high prices or purchasing goods at unfair low prices;
(2) selling a commodity at a price below its cost without a valid reason;
(3) refusing to deal with the other party without a valid reason;
(4) To restrict the trading counterpart to trade only with them or only with the operators designated by them without justified reasons;
(5) To tie in the sale of commodities without justified reasons, or to attach other unreasonable trading conditions to the transaction;
(6) without any justifiable reason, to discriminate against trading counterparts with the same conditions in terms of trading price and other trading conditions;
(7) other acts of abusing the dominant market position as determined by the State Administration of Market Supervision and Administration. Operators in the
building materials industry need to pay attention to whether they have legitimate reasons and need to make statements and defenses in accordance with the Anti-monopoly Law and the Provisions on Prohibiting Abuse of Market Dominant Position. Chapter
IV Concentration
of Business Operators Article 18 On Concentration
of Business Operators The Anti-monopoly Law prohibits business operators from carrying out concentrations that have or may have the effect of eliminating or restricting competition. In accordance with the Anti-monopoly Law, the Provisions of the State Council on the Standards for the Declaration of Concentration of Operators and the Provisions on the Examination of Concentration of Operators, the anti-monopoly law enforcement agencies shall conduct prior examination of the concentration of operators and investigate and deal with the illegal implementation of the concentration of operators. Article
19 Concept
of concentration of business operators Concentration of business operators refers to the following circumstances:
(1) Merger of business operators;
(2) Business operators acquire control over other business operators by acquiring equity or assets;
(3) The operator obtains control over other operators or can exert decisive influence on other operators by means of contract or other means. Article
20 Operators of
building materials industry who meet one of the following standards shall declare in advance. A concentration of undertakings shall not be implemented without declaration:
(1) The total global turnover of all undertakings participating in the concentration in the previous fiscal year exceeds 10 billion yuan, and the turnover of at least two of the undertakings in China in the previous fiscal year exceeds 400 million yuan;
(2) The total turnover of all operators participating in the concentration in China in the previous fiscal year exceeds 2 billion yuan, and the turnover of at least two operators in China in the previous fiscal year exceeds 400 million yuan. If the concentration of undertakings in the
building materials industry fails to meet the declaration standards prescribed by the State Council, but there is evidence to prove that the concentration of undertakings has or may have the effect of eliminating or restricting competition, the Anti-monopoly Law Enforcement Agency of the State Council may require the undertakings to declare. Article
21 The applicable standards
for simple cases of concentration of business operators: a case of concentration of business operators that meets the following conditions is a simple case:
(1) In the same relevant market, the sum of the market shares of all business operators participating in the concentration is less than 15%;
(2) The business operators involved in the concentration with an upstream and downstream relationship account for less than 25% of the upstream and downstream markets;
(3) The business operators involved in the concentration who are not in the same relevant market and have no upstream and downstream relationship account for less than 25% of each market related to the transaction;
(4) The operator involved in the concentration establishes a joint venture outside China, and the joint venture does not engage in economic activities in China;
(5) The operator involved in the concentration purchases the equity or assets of an overseas enterprise, and the overseas enterprise does not engage in economic activities in China;
(6) a joint venture jointly controlled by two or more operators is controlled by one or more of them through concentration.Article
22 The exceptions
that cannot be applied to simple cases of concentration of business operators conform to Article 21 of these Guidelines, but the cases of concentration of business operators under the following circumstances shall not be regarded as simple cases:
(1) Joint ventures jointly controlled by two or more business operators. Controlled by one of the undertakings through concentration, the undertaking and the joint venture are competitors in the same relevant market, and the sum of their market shares exceeds 15%;
(2) The relevant market involved in the concentration is difficult to define;
(3) The concentration may have an adverse impact on market access and technological progress;
(4) The concentration of business operators may have an adverse impact on consumers and other relevant business operators;
(5) The concentration of business operators may have an adverse impact on the development of the national economy;
(6) Other circumstances that the State Administration of Market Supervision and Administration considers may have an adverse impact on market competition. Article
23 In cases of concentration of business operators whose declaration methods
meet the declaration standards, business operators shall make online declaration in advance through the anti-monopoly business system of concentration of business operators (hereinafter referred to as the business system). Since August 1, 2022, the website of Article 24 of the https://jyzjz.samr.gov.
has been entrusted with the examination
of simple cases of concentration of operators. The State Administration of Market Supervision and Administration entrusts the Market Supervision and Administration of Shaanxi Province to contact the relevant regions of Shaanxi, Gansu, Qinghai, Ningxia and Xinjiang to be responsible for the anti-monopoly review of the cases applicable to the summary procedure of concentration of undertakings that meet one of the following criteria:
(1) At least one declarer is domiciled in the relevant region;
(2) The operator acquires the control right of other operators by purchasing equity, assets or contracts, and the domicile of other operators is in the relevant area;
(3) The operator establishes a new joint venture, and the domicile of the joint venture is in the relevant area;
(4) The relevant regional market of the concentration of undertakings is a regional market, and the relevant regional market is wholly or mainly located in the relevant region;
(5) Other cases entrusted by the State Administration of Market Supervision and Administration.
The pilot period is from August 1, 2022 to July 31, 2025. Article
25 Procedures for
the examination of simple cases of concentration of pilot entrusted operators (1) Declaration and negotiation. For cases that meet the requirements of entrustment, the declarer shall report to the State Administration of Market Supervision and Administration. If negotiation is required before declaration, the declarer may apply to the State Administration of Market Supervision and Administration for negotiation, or to the Shaanxi Provincial Market Supervision and Administration for negotiation.
(2) Examination and acceptance of materials. The Shaanxi Provincial Market Supervision and Administration shall be responsible for the examination and verification of the case materials, accept the documents and materials that meet the requirements of the Regulations on the Examination of Concentration of Operators on the date of receipt, and notify the declarer through the business system. On the day of filing the case, the case was examined on the official website of Shaanxi Provincial Market Supervision and Administration (http://snamr.shaanxi.gov.
(3)). Shaanxi Provincial Market Supervision and Administration shall carry out the examination of entrusted cases in accordance with the Provisions on the Examination of Concentration of Operators, submit the examination report to the State Administration of Market Supervision and Administration, and put forward suggestions for the examination.
(4) Examination and decision. After the State Administration of Market Supervision and Administration has made a review decision, the Shaanxi Provincial Market Supervision and Administration will send the review documents such as the review decision to the declarer through the business system, and publicize the unconditionally approved cases of concentration of operators on the official website of the Shaanxi Provincial Market Supervision and Administration.
(5) Acceptance of objections. The State Administration of Market Supervision and Administration uniformly accepts third-party objections during the period of publicity of simple cases of concentration of operators. The acceptance mailbox is: jyzjz@samr.gov.
Chapter V Abuse of Administrative Power to Eliminate and Restrict Competition
Article 26 Fair Competition Review
Administrative Organs and Laws, Organizations authorized by laws and regulations with the function of managing public affairs shall formulate regulations, normative documents, other policy documents and specific policies and measures in the form of "one case, one discussion" concerning the economic activities of the main body of the building materials industry market, and shall conduct fair competition review in accordance with Article 5 of the Anti-monopoly Law. Article
27 Abuse of Administrative Power to Eliminate and Restrict Competition
The Anti-monopoly Law prohibits administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs from abusing administrative power to eliminate and restrict competition. For the corresponding regulations, see the Provisions on Stopping Abuse of Administrative Power to Eliminate and Restrict Competition. For the abuse of administrative power to exclude or restrict competition in the building materials industry, the anti-monopoly law enforcement agencies shall investigate according to law, and the relevant units or individuals shall cooperate. Article
28 Abuse of administrative power to exclude or restrict competition is manifested
in the following acts by administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs to exclude or restrict competition in the building materials market. May constitute an abuse of administrative power to exclude or restrict competition:
(1) Restricting or disguising the operation, purchase or use of commodities provided by the designated building materials industry operators by units or individuals;
(2) Obstructing other operators from entering the relevant market or giving unequal treatment to other operators by signing cooperation agreements and memorandums with the operators of the building materials industry, so as to exclude and restrict competition.
(3) Setting discriminatory standards and implementing discriminatory policies for foreign building materials industry operators, adopting administrative licensing and filing specifically for foreign building materials industry operators, obstructing and restricting the entry of foreign building materials industry operators into the local market, and obstructing the free circulation of commodities between regions;
(4) Excluding or restricting foreign building materials industry operators from participating in local bidding and other business activities by setting discriminatory qualification requirements, evaluation criteria or not releasing information in accordance with the law;
(5) Exclude, restrict or force non-local operators to invest or set up branches in the local area by means of unequal treatment with local operators;
(6) Force or force in disguised form the operators of the building materials industry to engage in monopolistic acts stipulated in the Anti-monopoly Law;
(7) The administrative organ shall, in the form of regulations, measures, decisions, announcements, notices, opinions, minutes of meetings, etc. To formulate and promulgate regulations, normative documents and other policy documents concerning the economic activities of the main market players in the building materials industry, such as market access, industrial development, investment attraction, tendering and bidding, government procurement, business behavior norms and qualification standards, as well as specific policies and measures in the form of "one case, one discussion". Chapter
VI Investigation
of Suspected Monopolistic Acts Article 29 With regard to reporting
of suspected monopolistic acts, any entity or individual shall have the right to report to the Anti-monopoly Law Enforcement Agency. The anti-monopoly law enforcement agency shall keep the informant confidential. Where the
report is made in written form and the facts and evidence are provided, the Anti-monopoly Law Enforcement Agency shall conduct the necessary investigation. Article
30 Investigation Measures
of the Anti-monopoly Law Enforcement Authority The Anti-monopoly Law Enforcement Authority may take the following measures in accordance with the law when investigating suspected monopolistic acts:
(1) Entering the business premises or other relevant premises of the business operator under investigation for inspection;
(2) Inquiring the business operators, interested parties or other relevant units or individuals under investigation and requiring them to explain the relevant information;
(3) Consulting and copying relevant documents, agreements, accounting books, business letters and telegrams, electronic data and other documents and materials of the business operators, interested parties or other relevant units or individuals under investigation;
(4) Sealing up and detaining relevant evidence;
(Five) inquire about the bank account of the operator.Article
31 Obligation
to cooperate in the investigation The operators of the building materials industry shall pay attention to the fact that the operators, interested parties or other relevant units or individuals under investigation shall cooperate with the anti-monopoly law enforcement agencies in performing their duties in accordance with the law, and shall not refuse or obstruct the investigation of the anti-monopoly law enforcement agencies. Where
operators, administrative organs and organizations authorized by laws and regulations with the functions of managing public affairs are suspected of violating the provisions of the Anti-monopoly Law, the anti-monopoly law enforcement agencies may interview their legal representatives or persons in charge and require them to propose improvement measures. Chapter
VII Compliance Construction
Article 32 Necessity
of Anti-monopoly Compliance Operators in the building materials industry need to pay attention to the fact that anti-monopoly law is an important policy tool for market economy countries to regulate and control the economy. The formulation and implementation of anti-monopoly law is a common practice in most countries or regions in the world to protect fair market competition and maintain market competition order. Whether operating in China or abroad, the operators of the building materials industry should abide by the relevant national anti-monopoly regulatory policies. Article
33 Anti-monopoly compliance construction
The anti-monopoly law enforcement agency encourages the operators of the building materials industry to establish a competition compliance system including anti-monopoly, and to carry out anti-monopoly compliance work by setting up a compliance management system, clarifying the key points of compliance risks, carrying out compliance risk management, and improving the guarantee of compliance management. Specific rules may refer to guidelines and guidelines such as the Guidelines for Anti-monopoly Compliance of Operators and the Guidelines for Overseas Anti-monopoly Compliance of Enterprises. Chapter
8 Interpretation
of Article 34 of the Guidelines for Supplementary Provisions
These Guidelines shall be interpreted by the Shaanxi Provincial Market Supervision and Administration Bureau and shall come into force as of the date of promulgation.
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