On 21 September 2011, Mr. Shang Ming, Director General of MOFCOM's Anti-Monopoly Bureau revealed the most recent legislative plan of MOFCOM' at the BRICS International Competition Conference 2011 held in Beijing.
According to Mr. Shang, MOFCOM will promulgate 3 new rules on merger control within this or next year. The 3 new rules are: Rules on Imposing Restrictive Conditions on Concentration of Operators (the "Rules on Remedies"), Rules on the Investigation and Handling of Violation of Notification Obligations for Concentration of Operators (the "Rules on Violation of Notification Obligations"), and Rules on the Investigation and Handling of the Concentration of Operators below the Notification Thresholds with Monopoly Suspicion (the "Rules on Mergers Below Thresholds").
MOFCOM has been preparing these rules for quite a while. The draft of the Rules on Mergers Below Thresholds has been published by MOFCOM on 6 February 2009 for comments; and the draft of Rules on Violation of Notification Obligations was published for comments on 13 June 2011 (see our article entitled " MOFCOM publishes draft rules on investigation procedures re failure to notify on concentrations"). One thing in common for the three new rules is that they all involve different kinds of "sanctions" to be imposed on the operators. Compare with the rules dealing with technical or procedural issues, the three new rules seem to be much more sensitive. This may be one of the reasons why it took longer for MOFCOM to finalize these rules.
It is expected that the three new rules may provide guidance as to:
- how MOFCOM would choose between structural and behavioral conditions;
- how MOFCOM would treat a concentration that does not reach the notification thresholds but has or may have the effect of eliminating or restricting competition;
- whether and how MOFCOM would impose sanctions on a concentration that does not reach the notification thresholds but has or may have the effect of eliminating or restricting competition;
- what conducts would constitute pre-mature implementation of a concentration;
- how MOFCOM would impose sanctions on operators for violation of notification obligations.
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