Dawn of a New Era in Chinese Merger Control?
14 May 2018
The Chinese merger control landscape evolves as MOFCOM is replaced by the newly created State Administration for Market Regulation (SAMR) as the country’s merger control agency. This change becomes fully effective on 14 May 2018 as merger control officials join SAMR, which becomes the single Chinese antitrust enforcement agency. While in the short term the impact on enforcement is predicted to be minimal, given that the officials responsible for policy and casework remain unchanged, the longer term picture is as yet unclear.
Since implementation in August 2008, China’s Anti-Monopoly Law (AML) has been enforced by three different agencies: the Anti-Monopoly Bureau of the Ministry of Commerce (MOFCOM) for merger control; the Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission (NDRC) for price-related infringements of the AML; and the Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau of the State Administration for Industry and Commerce (SAIC) for other infrigements of the AML.
Combining these three agencies had long been discussed yet seemed a remote prospect until very recently. To the surprise of market observers, plans to put them under one roof were announced by Prime Minister Li Keqiang on 13 March 2018 and adopted swiftly by the People’s Congress on 24 March 2018. These plans have since then proceeded at a fast pace.
The State Administration for Market Regulation (SAMR) was officially created at the end of March 2018. Using the former SAIC as its backbone, SAMR is designed to consolidate multiple market supervision functions in addition to antitrust enforcement, including in relation to intellectual property, food and drugs, and quality supervision, inspection and quarantine.
A new – and decisive – step has now been taken with the effective move to SAMR of the merger control officials previously attached to MOFCOM. These officials have formally been acting under SAMR since early May, whilst in practice operating from their offices at MOFCOM. They will start working from SAMR’s premises on 14 May 2018. All administrative and procedural steps in relation to merger control (including filing of notification forms and documents) will be undertaken from these premises. No meaningful evolution of merger control practice is expected in the short term though since the same officials effectively remain in charge of actual cases and merger policy.
Looking at the medium to longer term, it is still too early to predict what the results of the combination of the three Chinese antitrust agencies will likely be. Final arrangements remain pending as numerous administrative, logistical, and hierarchical challenges raised by this government reshuffle need to be addressed. These may have a significant impact on the regulatory climate, the adoption of secondary legislation and guidelines (e.g., on merger filings, leniency applications, or the interplay between antitrust and intellectual property rights), and the resources devoted to antitrust enforcement in China. We will continue to monitor these developments closely.
It is the end of an era. Deal-making companies and their advisers had – by necessity – become familiar with MOFCOM. One can only expect that SAMR will equally and rapidly make its mark on the global M&A scene.