Answer ... Notification is mandatory, except in the cases outlined in question 2.7.
Answer ... It is possible to discuss a planned transaction with the Anti-monopoly Bureau of the State Administration for Market Regulation (SAMR), through a process known as pre-notification consultation. However, this is not mandatory.
The consultation may cover the following issues, on which the SAMR may provide the parties with guiding opinions:
- whether the proposed transaction must be notified;
- the documents and information required in the notification;
- specific legal and factual issues, such as market definition and whether the simplified procedure is available;
- guidance on the notification and review procedures; and
- other relevant issues
Answer ... According to Article 13 of the Guiding Opinions on Notifications of Concentrations between Undertakings, where a concentration is implemented by means of merger, all merging parties are obliged to file the notification. Where a concentration is implemented by other means (ie, share or asset transfer or establishment of a joint venture), the acquirer is responsible for filing the notification and the other parties must cooperate with the notifying party in submitting filing materials. If two or more parties are required to notify a transaction, the parties can agree to appoint one party to submit the filing. However, if the appointed party fails to notify the transaction, the other parties participating in the concentration may make the notification.
Answer ... No fee is charged by the SAMR for merger filing and review under China’s merger control regime.
Answer ... According to the Anti-monopoly Law and the Guiding Opinions on Notifications of Concentrations between Undertakings, the following documents and information are required in filing a notification:
- the notification form;
- proof of identity or registration certificate of the notifying parties;
- a description of the impact of the concentration on competition in the relevant markets;
- the concentration agreements;
- the financial and accounting reports of each party to the concentration for the preceding fiscal year, as audited by accounting firms; and
- other documents and materials that may be required by the SAMR.
Answer ... There is no specific deadline for filing the notification under the Chinese merger control regime. However, as notifiable transactions cannot be implemented before obtaining clearance from the SAMR, in practice, the notifying party will generally submit the filing to the SAMR immediately after signing the transaction documents, to avoid the risk of a delay to completion.
Answer ... A party can submit the filing prior to signing a definitive agreement. However, the SAMR may not formally accept the filing until the parties have provided the formal executed transaction documents.
Answer ... Yes – notifiable transactions cannot be implemented before obtaining clearance from the SAMR.
Answer ... The notification will not be publicly announced by the SAMR in full. However, if a transaction is notified under the simplified procedure, the parties will need to submit a public notice form, which states the names and brief introductions of the parties and the transaction. In addition, if the parties have chosen the first and/or second reason for applying for simplified review – that is, their combined market share is less than 15% and/or their market shares are less than 25% in the upstream and downstream markets, for parties with a vertical relationship – definitions of the relevant product markets and geographical markets, as well as the respective market shares of the parties in each, will be needed. In such case the parties are allowed to specify their market shares in ranges.
The notification will be kept strictly confidential by the SAMR. As the SAMR will sometimes need to consult relevant government agencies and/or other stakeholders, to preserve confidentiality, the notifying parties can provide non-confidential versions of the notification with sensitive information redacted.