A Study On The Substantial Examination Standard Of Concentration Of Undertakings

The regulation of concentration of undertakings has developed nearly one hundred years in the western countries.This system and the prohibition to monopoly agreements as well as the system of prohibition abuse of market dominance are known as the three entities pillars of anti-monopoly law.However,the legislative experience of our count ry on the undertakings concentration is insufficient.The relevant law,Chinese Antimonopoly Law,came into force for less than ten years from August 2008.As for the substantive examination standard that the Anti-monopoly law enforcem ent agency has applied to exam ine the undertakings concentration,Chinese Antimonopoly Law has only published very fe w clauses to stipulate principally and synoptically,while the relevant legislations which has come into force later could not give a p recise explanation either.In December 2012,the Ministry of Comm erce of the People's Republic of China held a c onference named “The legislation and the development of the anti-m onopoly examination for the undertakings concentration”.This conference proposed that it is necessary for the legislature to take the implem entation of the anti-monopoly examination for the concentration of undertakings into consideration,and to detail standards to reduce the law enf orcement risk.But un til now,the relevant department has not yet issued an operational guideline of examination.Under this situation,this paper will base on the deconstruction of the current law,emphasizing on the analyze of reviewed cases announced by the Anti-m onopoly bureau under Ministry of Commerce.T o find the problem in practice,besides,this paper will also study on the comprehensive research of the substantial examination standards of the concentration of undertak ings so as to im prove this standard and provide practical operational guidelines for the law enforcement department.This thesis consists of five parts.The first part of this work is an overview of the substan tial examination standard of concentration of undertakings,making a definition of the concentration.On the basis of that the statement of the concentration was as same as that of mergers and acquisitions,this paper introduces the curr ent international substantial examination standards,and then m ake a analysis between overseas and domestic relevant standards.The second part is form ulated from the legislative level,after sorting out the current legal process of the substantial exam ination standard of the undertakin gs concentration,this part deconstructs domestic substantial examination standard of concentration of undertakings by emphasizing on the 27 and 28 clauses of Chinese Antimonopoly Law,complemented by relevant documents,analyzing the important fa ctors that have influences on the custom er,other relevant operators and the national economy,which includes the relevant market,market share,m arket concentration,market entry and technical progress.The third part is formulated from the practical level,counting and exploring the cases of anti-monopoly examination of concentration of undertakings announced by the Ministry of Commerce since Chinese Antimonopoly Law came into force,detecting law enforcem ent status and existing problem s of the Minist ry of Commerce by concluding the significant factors in practice.The forth part is the validity analysis and experience learni ng from anti-m onopoly examination of the undertakings co ncentration in foreign countries,introducing the historical development of that of examination in America and EU respectively.Besides,to providing the experience for our country to enact domestic applicable guidelines,this paper will analyze the latest guidelines in Am erica and EU,including Horizontal Merger Guidelines in 2010 and Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Undertakings in 2004.The last part proposes suggestions f or China based on the discussion above and m ature experiences of EU and America.First,developing our Substantial examination standard with international standards by revising Chinese Antimonopoly Law,it will be more suitable for the current developing trend of ec onomic market.Secondly,the re levant department will be suggested to issue the Antimonopoly examination of undertakings concentration Guideline and refine specific factors in practice,thus providing operable models for the law-executor.