NDRC circulates draft guidelines on monopoly agreement exemptions | Practical Law

NDRC circulates draft guidelines on monopoly agreement exemptions | Practical Law

The National Development and Reform Commission has circulated a draft set of guidelines that address the conditions and procedures for applying for an exemption from the prohibitions on monopoly agreements set forth in the Anti-monopoly Law of the People’s Republic of China 2007.

NDRC circulates draft guidelines on monopoly agreement exemptions

Practical Law UK Legal Update 3-628-5665 (Approx. 3 pages)

NDRC circulates draft guidelines on monopoly agreement exemptions

by Practical Law China
Published on 25 May 2016 • China
The National Development and Reform Commission has circulated a draft set of guidelines that address the conditions and procedures for applying for an exemption from the prohibitions on monopoly agreements set forth in the Anti-monopoly Law of the People’s Republic of China 2007.
On 12 May 2016, the National Development and Reform Commission (NDRC) circulated for public comment the Guidelines on the General Conditions and Procedures for Monopoly Agreement Exemptions (Draft to Solicit Comments) (Monopoly Agreement Exemptions). The draft guidelines represent another in a series of draft guidelines circulated by the NDRC and China’s other competition regulators in recent months in an attempt to flesh out various provisions of the Anti-monopoly Law of the People’s Republic of China 2007 (AML).
The draft guidelines specify the conditions and procedures for applying for an exemption under Article 15 of the AML from the prohibited types of monopoly agreements set forth in Articles 13 and 14 of the AML. Specifically, the draft guidelines:
  • Permit operators and industry associations to apply to an anti-monopoly enforcement agency for exempt status where all of the following conditions exist:
    • The agreement has been concluded.
    • An anti-monopoly enforcement agency (AMEA) has initiated an investigation.
    • That investigation is not completed.
    (Article 5, Monopoly Agreement Exemptions).
  • Require applicants for an exemption, among other things:
    • To identify in the application all applicants and all operators affected by the agreement.
    • To prove a significant, causal relationship between the implementation of the agreement and a specific reason for exemption enumerated under Article 15 of the AML.
    (Articles 6 and 7, Monopoly Agreement Exemptions).
  • Identify the major factors to be considered in determining whether the agreement:
    • Will not seriously restrict competition in the relevant market.
    • Will enable society and consumers to share in the benefits of the agreement.
    (Articles 8 and 9, Monopoly Agreement Exemptions).
  • Stipulate the conditions and procedures for obtaining feedback from interested parties and issuing, publicising and subsequently revoking or invalidating an exemption decision.
    (Article 11, Monopoly Agreement Exemptions).
The draft guidelines also describe the limited circumstances where operators may seek "exemption advice" from an AMEA before an agreement is concluded and an investigation is initiated, that is, where an agreement has cross-border effects and the parties to the agreement plan to seek an exemption in one or more foreign jurisdictions, or where the agreement has a general and significant impact on an entire sector of the Chinese economy.
The period for submitting feedback on the draft guidelines will end 1 June 2016.
Source: NDRC solicits public opinions on the Guidelines for General Conditions and Procedures of Monopoly Agreement Exemption (Draft for Comments)(Chinese) (国家发展改革委就《关于垄断协议豁免一般性条件和程序的指南》（征求意见稿）公开征求意见)