Discussion On The Anti-monopoly Review Standard Of Undertakings Concentration

Since Anti-monopoly Law of China (AML) implemented in 2008, Ministry of Commerce (MOFCOM) has received hundreds of notification cases, and according to AML, MOFCOM publicized 6 cases of prohibition and conditional approval. There was a notification case on the first day after execution of AML, and AML will have great and profound influence on Chinese market economy. One of the most important questions is what standard will be adopted by Chinese anti-monopoly review of undertakings concentration, clear definition of review standard will be helpful for undertakings to forecast whether to violation of AML, and also be good for the stability of AML, and the review standard will put great influence on the M&A of the international firms and cooperation of global economy. The current two international accepted standards are structural standard (Market Dominance test) and effect-lead standard (American Substantial Lessening of Competition standard and European Union Significantly Impedes Effective Competition standard), the effect-lead standard is more popular, and this thesis will make research and comparison on the American and European Union effect-lead standards. After setting up new concentration controlling council regulation of European Union in 2004, European Union established the Significantly Impedes Effective Competition standard, it tended to be similar with the American standard, and both of European Union and American standards are effect-lead standards. The two standards tend to be similar in unilateral effects, analysis factors and analysis structure etc. China may draw lessons from the two international accepted standards of America and European Union. The review standard of Chinese undertakings concentration is specified in Article 27 and 28 of AML with other regulations issued presently, and the Chinese review standard is also effect-lead. But the Chinese standard is vague and simple, and it needs to set up new regulations to clear analysis factors, unilateral effects and analysis structure etc. This thesis also makes a brief discussion on two important issues of review exemption and efficiency defense, in order to effectively understand the Chinese review standard. The development and enforcement of the concentration review standard will be influenced by all kinds of factors, and this thesis will make a brief discussion from four aspects. The evolvement of the concentration review shows the uncertainty of anti-monopoly or antitrust law. According to the development history of global competition law, the establishment and the enforcement of the review standard shows phasic characteristic and it should accord with the strategic economy develop of the country. Since Chinese industrial policy is powerful now, China should take the experience of Japanese industrial policy development and let the competition policy prier to the industrial policy. In addition, China shall pay attention to coordinate with other countries on the review standard in order to reduce unnecessary international conflicts. Generally speaking, the undertakings concentration AML review standard will develop with the development of the economy and politics, and China may establish the review standard on the basis of the situation of the whole country in order to sustainable development of economy and society.