China: Recent Development in China’s New Energy Auto Industry and M&A of Foreign Investors

Last Updated: 17 August 2014
Article by George Zhao and Dai Mu

In China, the new energy automobiles (NEAs) are currently defined as vehicles utilizing advanced technical know-how, new technologies and new structures, which use unconventional vehicle fuel as the power source (or conventional vehicle fuel but new in-vehicle power devices). The NEAs are defined as vehicles that integrate advanced technologies in power control, including hybrid electric vehicles, battery electric vehicles (BEV, including solar energy vehicles), fuel cell electric vehicles (FCEV), hydrogen engine vehicles, other new energy vehicles (e.g., efficient energy storage device and methyl ether), and products enumerated in China's industrial policies1.

NEAs are of tremendous significance to the sustainable development of China's auto industry, contributing to the alleviation of environmental and resource burdens, and the enhancement of national competition2 at a global level3. In accordance with applicable Chinese industrial policies and economy development plans, NEAs are considered as: (1) an important part of China's auto industry, under which strict legal restrictions4 and limitations5 are imposed on foreign investment, from design, manufacture to sales; (2) strategic emerging industry in China6, receiving governmental preferential treatment regarding tax and financing7; also a critical path8 to realizing national energy conservation and emission reduction goals9; and (3) involving various other fields such as R&D10, manufacturing, supporting facilities, and power battery recycling, each of which is subject to different regulatory regimes in China that investors should beware of.

  1. Market access for foreign investment in NEA industry

Foreign investors intending to acquire domestic NEA companies shall be subject to the statutory requirements set out in the relevant industrial policies. According to the Catalogue of Industries for Guiding Foreign Investment, NEA components (i.e. power battery) belong to encouraged investments. However, foreign investors may only set up joint ventures with Chinese partners and foreign investors' equity in the joint ventures may not exceed 50 percent. At the same time, manufacturers must comply with the requirements set out in the Policy on Development of the Automotive Industry and the Rules on the Production, Admission, and Administration of New Energy Automobiles. In order to manufacture NEAs, foreign-invested enterprises shall obtain admission qualifications for both the enterprise and final products.

The overall regulatory environment of China's automobile industry can be characterized as follows: the government restricts investments in whole vehicle manufacturing, while encouraging investments in auto parts and components manufacturing. With respect to foreign investment in the NEA sector, besides the equity restrictions imposed on power battery manufacturing joint ventures, critical parts and components manufacturing is permitted for wholly foreign-owned enterprises. According to the State Council's Catalogue of Investment Projects Subject to Government Verification (2013 Version), new projects for components manufacturing are only subject to the filing procedures and no longer require governmental verification. Since the motors of NEAs are different from traditional engines, they need to meet the new national technical standards for electric motors11.

However, since the 2004 amendments to the Catalogue of Industries for Guiding Foreign Investment, the whole vehicle manufacturing industry is no longer a category for encouraged investments and now receives strict regulatory oversight. Foreign capital entering into the NEA manufacturing sector must be in the form of joint ventures and Chinese equity interest shall not hold less than 50 percent of the registered capital. When foreign investors intend to enter the Chinese market via acquisitions, they are not allowed to invest in more than two joint venture manufacturers that produce vehicles in same category12. Investors should note that, new NEA manufacturing is allowed only if it has been approved by the Ministry of Industry and Information Technology of the PRC ("MIIT"). If newly-established vehicle enterprises or existing vehicle enterprises intend to produce other types of NEAs beyond their existing product line, they shall first go through the verification or filing procedure for new projects in accordance with the regulatory requirements for such investment13.

  1. National security review

For the time being, China's national security review of foreign investments is led by the Ministry of Commerce ("MOFCOM") and the National Development and Reform Commission ("NDRC"), and is mainly administered through the Inter-Ministerial Joint Meeting. According to the Interim Provisions on the Takeover of Domestic Enterprises by Foreign Investors, Notice on the Establishment of the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors and other regulations, foreign investment in the following sectors shall be subject to national security review: investment in "key industries", industries that "may affect national economic security", enterprises that " have well-known trademarks or time-honored brands", and enterprises " that involve important agricultural, energy and resources, infrastructure, transportation services, key technologies, critical equipment manufacturing, etc. "

As NEA manufacturers must satisfy the equity ratio limitations set out in the industrial policies, the foreign acquisition of equity interests in Chinese auto makers may trigger national security reviews. In designing a deal structure, investors shall bear in mind the likelihood of obtaining such regulatory approvals. At the same time, foreign investors shall carefully consider the appropriate acquisition form (i.e. spin-off, reorganization) and shareholding structure on the basis of the evaluation of a target company's outstanding debt and risks in taxation as well as in other areas.

According to the Catalogue of Key Technology and Products subject to Independent Intellectual Property Rights14, NEA, its key parts and its supporting facilities are classified as technologies that are significant to economic development, industry upgrading and national security. In the event of foreign acquisitions of the above-mentioned technologies, equities or assets, national security review will potentially be triggered15. Since key parts of new energy vehicles are not clearly defined in the above-mentioned catalogue, relevant authorities will use their discretion in determining whether a proposed transaction is subject to such a review. For transaction parties, it is necessary to make suitable arrangements with the Chinese partners in terms of technology center setup, patent licensing and trade secrets protection.

  1. Preferential policies for foreign investment

At the national level, NEA enterprises as well as NEA products will be subject to the catalogue management regime ("Catalogue of Recommended Models for the Project of Energy Conservation and New Energy Automobile Demonstration", "the Catalogue"). Chinese government conducts dynamic management on vehicles and enterprises in the Catalogue: the industry regulatory authority will conduct sample tests of listed autos to verify their real-time operation status in pilot cities, and remove unqualified NEA products and their manufacturers16. Only listed ones may enjoy governmental subsidies.

According to the Notice on Further Carrying Out the Promotion and Application of New Energy Automobiles17 released in 2013, which clearly states "the scope of the vehicles which enjoy central government subsidies should be limited to pure electric vehicles, plug-in hybrid vehicles and fuel cell vehicles". Furthermore, when calculating the average fuel consumption, the NEA emissions are largely based on the foregoing three types. The subsidy policies enjoyed by foreign investors engaged in the production of NEAs would be identical to those enjoyed by domestic manufacturers.

At the local level, the pilot cities adopted local financial subsidy policies to support this industry. For example, Beijing's local policy clearly demonstrates that the product range of demonstration of the new energy minibus will be limited to the scope of the Catalogue18. Beijing also introduced a series of "Beijing Municipal Catalogue for New Energy Minibus Models and Manufacturers". According to the provisions of the Municipal Rule on Subsidy Management, only the new energy minibus listed in Beijing's local catalogue may enjoy subsidiary funds from the Beijing government. The Shanghai Economic and Information Commission also introduced its own catalogue series (Shanghai Municipal Catalogue for new energy minibus models and manufacturers), such that only the products and enterprises included in this catalogue could enjoy Shanghai's preferential policies. According to a recently released regulation19 by State Council, "local variants" of the NEA catalogue will be replaced by a national one.

  1. NEA promotions and encouragement

As the government policy of auto procurement shows its preference towards NEAs, relevant manufacturers may adjust their existing product lines to seize such opportunity. According to the Circular on Continuing Launching the Promotion and Application of New Energy Automobiles jointly released by MOF, MOST, MIIT and NDRC, the requirements for pilot cities and areas shall include: during 2013-2015, the cumulative amount of NEAs should not be less than 10,000 in mega-cities or the key areas, and the cumulative number for other cities or regional areas should not be less than 5,000; government agencies, public institutions and other departments shall take NEAs as a prior option for procurement; and, the ratio of newly procured or upgraded NEAs in public transportation, official service, the logistics industry, and sanitation services shall not be less than 30 percent of the total procurement20.

NEAs will create a huge impact on public transportation and car rental industry. According to the Circular on Initiating Pilot Subsidy Program of Purchasing New Energy Auto for Individual Use jointly released by MOF and MOFCOM, enterprises engaged in car rental and power battery rental will enjoy central government subsidies just as individual purchasers of NEAs, from which the customers can benefit the subsidized price. According to available online information, the Shanghai Transportation Committee recently launched a research project on NEAs in Shanghai's car rental market. The low renting and running cost of NEAs helps raise awareness among consumers of this type of cars and thereby helps increase its popularity. Also, Beijing, Hefei (in Anhui province), and other China cities have purchased large numbers of NEAs for taxi companies. This is undoubtedly a great development for the NEA industry.

  1. Conclusion

For foreign enterprises intending to enter China's NEA industry, a more realistic transactional path is to form joint ventures with existing domestic automobile manufacturers or to make equity and asset acquisitions. In terms of green field investment in NEAs and parts manufacturing, foreign investors can enjoy the commensurate preferential policies with domestic enterprises in many areas. However, in order to realize synergies from acquisitions and ensure success in the NEA business, foreign investors need to be aware of the legal risks, regulatory requirements, and technical standards governing the design, production, sales and maintenance of NEAs in China.


1Access Management Rules for New Energy Vehicle Production Enterprises and Products released by Ministry of Industry and Information Technology, effective as of July 1, 2009

2Circular on Guidance Opinions of Expediting and Cultivating Superiority Position in International Cooperation and Competition released by the General Office of State Council, effective as of May 24, 2012

3Notice of the State Council on Issuing the Planning for the Development of the Energy-Saving and New Energy Automobile Industry released by State Council, effective as of June 28, 2012

4Such policies may include PRC regulations on Auto industry development plan, foreign investment in auto industry, auto taxation, auto financial and credit services, etc.

5Circular on Opinions of Adjustment to Auto Industry Structure released by NDRC, effective as of December 20, 2006

6Decision on Accelerating the Fostering and Development of Strategic Emerging Industries released by State Council, effective as of October 10, 2010

7Guiding Opinions on Further Doing a Good Job in Supporting the Restructuring and Revitalization of Key Industries and Curbing Overcapacity in Some Industries through Financial Services jointly released by PBOC, CBRC, CSRC and CIRC, effective as of December 22, 2009

8Notice on Issuing the Energy Conservation and Emission Reduction Plan during the "Twelfth Five-Year Plan" Period released by State Council, effective as of August 06, 2012

9Industrial action plan to address climate change (2012-2020) jointly released by MIIT, NDRC, MOST and MOF, effective as of December 31, 2012

10General Planning for Technological Innovations of Industries during the 12th Five-Year Plan Period released by MIIT, effective as of November 04, 2011

11This technical standard is still under draft, the draft GB/T 18488.1—201× will replace GB/T 18488.1-2006 and GB/T18488.2-2006

12Policy on Development of Automotive Industry, Article 48, "...The same foreign investor may establish no more than (including two) two joint venture enterprises in China that undertake the production of the same kinds (the classes of passenger cars, commercial cars and motorcycles) of whole automobile products. If the foreign investor merges other automobile production enterprises in China together with the Chinese joint venture partner, it may not be restricted by the said two joint ventures..."

13Admission Management Rules on NEA Manufacturer and Products chapter 3, specify the entry management and requirement for NEA manufacturers and products

14See the Catalogue of Key Technology and Products subject to Independent Intellectual Property Rights.

15In 2007, a Germany company (Schaeffler)'s proposed acquisition of Luoyang Bearing Co., Ltd. had been rejected by the Chinese government, refusing to approve any proposal regarding acquiring of 100% equity interest or controlling equity interest of that company. Please note that Provisions on the Implementation of the Security Review System for Mergers and Acquisitions of Domestic Enterprises by Foreign Investors had not released by MOFCOM at that time.

16Notice on Further Promoting the Pilot Program for Energy Conservation and New Energy Automobile Demonstration and Popularization jointly released by MOF, MOST, MIIT and NDRC, effective as of October 14, 2011

17Notice of the Ministry of Finance, the Ministry of Science and Technology, the Ministry of Industry and Information Technology and the National Development and Reform Commission on Continuing on the Promotion and Application of New Energy Automobiles, effective as of September 13, 2013

18Beijing Municipal Provisions on Management of Approval and Recording for Demonstration New Energy Minibus Manufacturers and Products Article 4

19Guiding Opinions on Accelerating the Promotion of the Application of New Energy Vehicles released by General Office of the State Council, effective as of July 14, 2014

20Guiding Opinions on Accelerating the Promotion of the Application of New Energy Vehicles released by General Office of the State Council, effective as of July 14, 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions