The Research On The Antitrust Review Procedure Of Concentration Of Undertakings

Antitrust review process of concentration of undertakings means to regulate the action of anti-trust review institution and undertakings. It is in the nature of administrative procedures, and its legislative activities should be guided by the principle of public procedure, the principle of due process, the efficiency principle and the principle of participation of the parties in order to restrict the expansion of administrative power and protect the right of the parties. EU and U.S. have extensive experience in legislation and practice about the antitrust review procedures of concentration of undertakings. By comparing the two procedures, we can find that they also set good safeguards for the public procedures. The authorities also make the information they get public to the parties and so on. It's very flexible but not public enough for the unofficial process, that means EU and U.S. prefer to the efficiency. EU's security system of the right of parties'defense is more robust, including the oral hearing and the right of accessing to files. But U.S. focuses the equal status of the institution and the parties in the investigation. The time system EU adopts is stricter than U.S.'for improving efficiency, which is equipped with relevant communication mechanism. The time system U.S. adopts is more flexible and loose. So a strong professional ability to analyze and judge lots of information in short term is requested.Our country's antitrust review system of concentration of undertakings has established step by step from the framework of the anti-monopoly law to the detailed implementation proclaimed by Department of commerce. However, there is something imperfect in three aspects:the procedural openness, due procedure and efficiency system. Through the analysis and comparison of EU and U.S.'system, we can absorb and learn from their experience to improve the relevant procedures. At the same time some conditions like low rate of notification, lack of antitrust enforcement experience and low degree of discipline, should be considered. So we should:provide the third party and the public as the open objects, and disclose the decision and basis of Department commerce's review in order to ensure the participation of the parties; improve the administrative hearing process, guarantee the neutrality of hearing office and make the hearing deposition'effect stronger than normal investigation'; supplement the provisions of right of access to files with giving the parties opportunity before the hearing or after Department commerce's opposition notice; remove the provision that reveal all the details to increase certainty and predictability, and develop guidelines of the information request of further review; make the institutionalization of pre-merger consultation procedure to achieve the openness and transparence through regulating the conduct of the parties and Department commerce; shorten the extension period of review, and provide the suspension of period result on the delay in information submission if it can attribute to the declarant.