Cartel leniency in China: overview

A Q&A guide to cartel leniency law in China.

The Q&A gives a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities. In particular, it covers the conditions to be satisfied, the method of making an application, availability of immunity from civil fines to individuals, the scope of leniency, circumstances when leniency may be withdrawn, leniency plus, confidentiality and disclosure, and proposals for reform.

To compare answers across multiple jurisdictions visit the Cartel leniency Country Q&A tool.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Cartel Leniency Q&As visit www.practicallaw.com/leniency-guide.

For a full list of jurisdictional Competition Q&As, which provide a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures in multiple jurisdictions, visit www.practicallaw.com/mergercontrol-guide and www.practicallaw.com/restraintsoftrade-guide.

Contents

Regulation

1. What laws provide for a leniency programme and which regulatory authority administers it? Is there any published guidance?

Applicable laws and guidance

Article 46 of China's Anti-Monopoly Law provides the general rules of the leniency programme. Under this Article, the regulatory authority can, at its discretion, reduce or waive the sanctions imposed on a business operator for its participation in a monopoly agreement (see Question 2) if the operator has voluntarily reported the relevant facts of entering into a monopoly arrangement and provided important evidence to the regulatory authority.

The National Development and Reform Commission (NDRC) and the State Administration for Industry and Commerce (SAIC) have each issued more detailed provisions regarding their own leniency programme, including:

  • Procedural Rules on Administrative Enforcement regarding Anti-Price Monopoly (issued by the NDRC on 29 December 2010, effective as of 1 February 2011).

  • Rules of Administration for Industry and Commerce on the Prohibition of Monopoly Agreement (issued by the SAIC on 31 December 2010, effective as of 1 February 2011).

  • Procedural Rules of Administration for Industry and Commerce on Investigating Cases of Monopoly Agreements and Abuse of Dominant Market Position (issued by the SAIC on 26 May 2009, effective as of 1 July 2009).

Regulatory authority

The three authorities that are responsible for ensuring fair competition are the:

  • Ministry of Commerce (MOFCOM).

  • NDRC.

  • SAIC.

MOFCOM is in charge of merger control, and the NDRC and SAIC are responsible for regulating monopolistic conducts. The NDRC is responsible for price related violations and the SAIC is in charge of non-price related violations. Currently each authority operates its own leniency programme (see Question 4).

The NDRC delegates its authority to the provincial level Development and Reform Commissions/Price Bureaus. The SAIC can delegate its authority to the provincial level Administrations for Industry and Commerce. In practice, many cases are handled by provincial level enforcement agencies authorised by the NDRC or SAIC.

See also Question 9, Relevant authority.

According to the working arrangement made by the Anti-Monopoly Commission under the State Council, the NDRC is drafting a unified guideline regarding the leniency programme. On 2 February 2 2016, the NDRC issued the Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines) to seek public opinions. The Draft Leniency Guidelines intend to provide clarifications on the leniency programme both substance-wise and procedural-wise. In particular, the Draft Leniency Guidelines introduce the marker system into the Chinese AML regime, for the first time. The Draft Leniency Guidelines can be further refined by the NDRC based on the opinions it has received.

 

Scope of application

2. What infringements of competition law does the leniency programme cover?

The leniency programme only covers monopoly agreements, which include agreements, decisions or other concerted actions that eliminate or restrict competition (Anti-Monopoly Law (AML)). The leniency programme does not apply to cases concerning abuse of dominance. Article 46 of the AML does not distinguish between horizontal and vertical agreements, but rather refers to "monopoly agreements" generally. In practice, the National Development and Reform Commission (NDRC) has applied its leniency programme to both cartel and resale price maintenance cases. The Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines), however, are formulated to be applied to horizontal monopoly agreements (that is, cartels) only.

The AML only provides for administrative liability, not criminal liability. The leniency programme therefore only covers immunity from, or a reduction of monetary punishment.

The regulators can impose three types of administrative penalty on parties to monopoly agreements, that is (AML):

  • Ordering the relevant undertakings to stop the violations.

  • Confiscating illegal gains.

  • Imposing a fine of 1% to 10% of the party's turnover in the preceding year. In the authors' experience, this refers to the undertaking's turnover generated in China in relation to the affected products, although this is not specified in the AML.

The State Administration for Industry and Commerce (SAIC) rules explicitly indicate that the leniency programme only covers immunity from or a reduction of fines. This means that the SAIC may still decide to confiscate the undertakings' illegal gains under the AML. The NDRC rules make no specific provision in this regard, its practice appears to be consistent with that of the SAIC. However, according to the Draft Leniency Guidelines, to encourage business operators to voluntarily report monopoly agreements and provide important evidence, the AML enforcement agencies may consider exempting or mitigating the confiscation of illegal gains.

 

Recent cases

3. What notable recent cases have applied the leniency programme?

National Development and Reform Commission (NDRC)

The NDRC applied the leniency programme in the following two cases (among others).

The pure car carriers cartel case. On 31 December 2015, the NDRC published its final decision on its website against eight pure car carriers for their participation in an international cartel, where the NDRC found that during 2008 to the September 2012, the pure car carriers had frequently conducted bilateral or multilateral communications via phone calls, meetings, social gathering and special visits and exchanged sensitive information, discussed prices, allocated customers and lanes, and therefore reached and implemented agreements on prices quoted to certain roll-on/roll-off cargo manufacturers regarding businesses in relation to China maritime transportation. The NDRC concluded that the above mentioned behaviour of the eight pure car carriers constituted a violation of Article 13(1) on monopoly agreements on price fixing and Article 13(3) on allocation of sales market of the AML. Therefore, the NDRC imposed the penalties on the eight pure car carriers as follows:

  • Applied leniency treatment to the first three applicants, who had seriously violated the law and should had been fined for 10% of their turnover in relation to China in 2014. The first applicant received full immunity, the second applicant received a 60% fine reduction and was imposed a fine of 4% of the company's turnover in relation to China in 2014, the third applicant received a 30% fine reduction and were imposed a fine of 7% of the company's turnover in relation to China in 2014.

  • For the companies that seriously violated the law but confessed illegal behaviour and submitted evidence regarding the facts that were not found by the NDRC, they received a certain fine reduction due to their co-operation and received a fine of 9% of company turnover and 8% of company turnover respectively.

  • For the companies that were only involved in relatively less infringements and played a minor role in the conclusion of the monopoly agreements, they were respectively fined by 6%, 5% and 4% of company turnover.

The Japanese auto parts cartel case On 18 September 2014, the NDRC published its final decision in the Japanese auto parts case. In this case, a total of 12 Japanese auto parts suppliers were fined a total amount of RMB1.24 billion for their participation in cartels. In its final decisions published, the NDRC found that the collusion between competitors had:

  • Eliminated and restricted competition regarding the pricing of bearings and other auto parts in the Chinese domestic market.

  • Harmed the legitimate rights of downstream manufacturers and the interests of consumers.

Taking into account the fact that the parties had executed the monopoly agreements for over ten years, which constituted a serious violation, the NDRC decided to impose the highest possible fines on all 12 Japanese auto parts suppliers (that is, 10% of a company's turnover in the previous year).

However, all 12 companies applied for leniency, and the NDRC granted leniency based on their co-operation during the proceedings. Specifically, the NDRC granted full immunity to two companies, as they were the first to voluntarily make a report to the NDRC and provide important evidence for each category of products (that is, bearing and other auto parts). The other ten companies were granted a reduction of fine of between 20% and 60%.

State Administration for Industry and Commerce (SAIC)

On 29 July 2013, the SAIC held a press conference to announce the launch of a platform for the publication of anti-trust enforcement decisions. The final penalty decisions in all closed cases (a total of 36 as of 19 May 2016) have been published on the SAIC's website, including 21 cartel cases. Among the cartel cases handled by the SAIC and its local branches, the agency only explicitly mentioned that it has applied the leniency programme and granted full immunity to the leniency applicant in one case, which is the Yongzhou concrete cartel case closed in November 2015.

 

Availability of leniency

Administrative liability

4. Is full immunity from administrative penalties available? What conditions must be met for immunity to be granted?

Full immunity from administrative fines is available under the leniency programmes of both the National Development and Reform Commission and the State Administration for Industry and Commerce. However, the detailed rules of the two authorities' leniency programs differ in several aspects, such as the sliding scale of fine reductions and treatments to the organiser/ringleader of a cartel.

The Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines) is expected to unify the differences between the programmes. As stipulated by the Draft Leniency Guidelines, the first leniency applicant will receive no less than a 80% fine reduction or full immunity, the second applicant will receive a 30% to 50% fine reduction, and the subsequent applicants will receive no more than a 30% fine reduction.

To apply for a leniency programme, the Draft Leniency Guidelines requires that, in addition to voluntarily reporting the facts of a monopoly agreement and providing important evidence, the applicants should also fulfil the following obligations:

  • Timely stop the suspected illegal conducts.

  • Co-operate with the Anti-Monopoly Law (AML) enforcement agencies in the investigation in a prompt, continuous, comprehensive and faithful manner.

  • Properly keep and provide evidence and information, and not conceal, destroy, transfer evidence or submit false material and information.

  • Not disclose information about the leniency application without prior approval of the AML enforcement agencies.

  • Not engage in any other conduct that may affect the enforcement of the AML.

The unified rules provided by the Draft Leniency Guidelines are that the business operator that coerces or organises other business operators to participate in the conclusion and implementation of the monopoly agreements will generally not be granted full immunity, but that the operator can receive certain reduction of penalties.

 
5. Is there a sliding scale of available leniency from administrative penalties?

The National Development and Reform Commission's programme provides a sliding scale of leniency as follows:

  • The first applicant may be granted full immunity.

  • The second applicant may be granted a fine reduction of no less than 50%.

  • The third and subsequent applicants may be granted a maximum 50% fine reduction.

The State Administration for Industry and Commerce's (SAIC's) programme provides no guidance on the sliding scale of leniency. It only indicates that the administrative fines imposed on the applicants other than the first one may be reduced at the discretion of the SAIC.

The Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements provide a sliding scale different from the above programmes so that the first leniency applicant will receive no less than a 80% fine reduction or full immunity, the second applicant will receive a 30% to 50% fine reduction, and the third applicant will receive no more than a 30% fine reduction.

 
6. Is immunity or leniency for administrative penalties available to individuals? If so, what conditions apply?

No liability of any kind (whether administrative or criminal) will be imposed on managers or employees of an undertaking that is a party to monopoly agreement. Therefore, the leniency programme does not apply to managers and employees of an undertaking.

However, under Article 12 of the Anti-Monopoly Law (AML), an individual who engages in producing commodities, operating or providing services is also considered as an "undertaking". The AML does not distinguish between "individual" and "company" undertakings. The conditions for an individual undertaking to apply for leniency are therefore the same as for a company (see Question 4).

Criminal liability

7. Is immunity or leniency available for companies and/or its employees in relation to criminal prosecution? What are the implications for employees when an undertaking has been granted immunity or leniency?

Circumstances

There are no criminal penalties under the Anti-Monopoly Law (AML). Immunity or leniency in relation to criminal prosecution is therefore not available under the AML regime.

Proceedings against employees

Not applicable (see Question 6).

Employees' interests

Not applicable (see Question 6).

 

Application proceedings

8. When should an application for leniency be made?

The Anti-Monopoly Law does not provide when an application for leniency should be made. In practice, it can be made either before or after the investigation is launched. For example, in the Japanese auto parts case (see Question 3, National Development and Reform Commission ), some companies that were granted immunity or fine reductions applied before the investigation had been launched while some others applied after the investigation had been initiated. The Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements take the same attitude in this regard. In general, an undertaking that decides to apply for leniency is advised to do so as soon as possible (see Questions 4 and 5).

 
9. What are the procedural rules for leniency applications?

Relevant authority

See Question 1, Regulatory authority.

The power to investigate monopoly agreements is shared by the National Development and Reform Commission (NDRC) and the State Administration for Industry and Commerce (SAIC), depending on whether the case is price-related or not. In practice, there may be cases where the relevant monopoly agreements have both price and non-price related features, and therefore fall within the jurisdictions of both the NDRC and the SAIC. In these circumstances, the applicant may need to decide which agency it would file the leniency application with. According to the Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines), if business operators file the leniency application with both NDRC and SAIC regarding the same monopoly agreement and the agencies so accept the leniency application, the case will be dealt with by the NDRC and SAIC through consultation. In the situation where one agency has already taken any investigation measures under Article 39 of the Anti-Monopoly Law (AML), the business operator may file the leniency application with the agency that is investigating into the case.

Applicant

An applicant for the leniency programme is a business operator that has reached or implemented a monopoly agreement. :

In practice, the following individuals can report a monopoly agreement on behalf of the business operator:

  • The legal representative of the undertaking.

  • An authorised legal counsel.

  • An employee who has specific authorisation to make the application.

Informal/confidential guidance

The AML and relevant NDRC and SAIC rules do not specify whether the business operator can seek guidance from the AML enforcement agencies. In practice, it is understood that the business operator can always consult with the AML enforcement agencies, however, the opinions given are not legally binding.

The Draft Leniency Guidelines also stipulate rules on the prior communication with the AML enforcement agencies. According to Article 5 of the Draft Leniency Guidelines, in order to encourage business operators to report information regarding monopoly agreements as early as possible, business operator can communicate, orally or in writing, with the AML enforcement agency (anonymously or by name) before applying for leniency. However, the Draft Leniency Guidelines do not provide what information should be communicated to the authorities or what response the AML enforcement agencies should give. They also do not clarify the legal effect of prior communication.

Form of application

According to the AML, to apply for leniency treatment, the business operator should both:

  • Submit a report stating the relevant facts of the monopoly agreement.

  • Provide important evidence to support its statement.

Although there is no standard application form for the application, the Draft Leniency Guidelines provides for the following elements to be included in the report:

  • Participants to the monopoly agreement and their basic information (including the names, addresses, contact information and representatives).

  • Details of the communications under the monopoly agreement (including the time, place, content of communication, and participants).

  • The products or services, prices and quantity that are involved in the monopoly agreement.

  • The regions and market scale affected by the monopoly agreement.

  • The duration of the monopoly agreement.

  • The explanation on the evidence submitted by the business operator.

As for the important evidence, the Draft Leniency Guidelines require that it should be sufficient to enable the AML enforcement agency to initiate an investigation if the AML enforcement agency has not yet obtained clues or evidence of the case. In addition, if the AML enforcement agency has started an investigation, the important evidence must refer to the evidence, with significant value added for the ultimate determination of the monopoly agreement, including:

  • Evidence with greater probative force or supplementary probative value regarding the conclusion and implementation of the monopoly agreement.

  • Evidence with supplementary probative force concerning contents of the monopoly agreement, the time of reaching and implementing of the monopoly agreement, products or services involved, and relevant participants.

  • Other evidence that can enhance the probative force of the evidence regarding the monopoly agreement.

Markers

There is currently no marker system for leniency applications under the AML or under the relevant implementation rules of the NDRC and SAIC. The Draft Leniency Guidelines, if adopted, will for the first time introduce a marker system into Chinese leniency programme.

According to the Draft Leniency Guidelines, if the business operator cannot provide all materials and information at the time it files for leniency, the operator can first submit a preliminary report to mark its ranking with the AML enforcement agency. In the preliminary report, the business operator must explicitly admit its involvement in the monopoly agreement and give a brief description of the conclusion and implementation of the monopoly agreement, including information as to the relevant participants, the products or services involved and time of conclusion and implementation. The AML enforcement agency will then issue a written opinion, requesting the business operator to supplement relevant materials within a limited period of time (no more than 30 days or 60 days, in special cases). If the business operator can supplement the requested materials within the time limit, the AML enforcement agency will regard the time when the business operator submits the preliminary report as the time when the business operator files the leniency application.

Information/evidence

The AML only requests that when filing a leniency application, the business operator must voluntarily report the relevant facts of the monopoly agreement and provide important evidence. However, the AML and the NDRC and SAIC rules fail to specify what the important evidence is.

The Draft Leniency Guidelines provides a unified standard regarding the important evidence submitted at different stage of the investigation (see Question 9, Form of application)

Oral statements

The AML and relevant rules do not exclude oral applications. The Draft Leniency Guidelines state that the leniency application report and the preliminary report can be made both orally or in writing. For oral report, the AML enforcement agencies must make written records, which must be signed by the authorised representatives of the business operator.

Short-form applications

Not applicable.

 
10. What are the applicable procedures and timetable?

There are currently no detailed rules on the procedures and timetable of the leniency programme. In practice, procedures and timetable vary from case to case, ranging from several months to a few years. There are no rules requiring the regulators to close a case or finish certain procedures within a certain period of time. The regulators have discretions in this regard.

 

Withdrawal of leniency

11. In what circumstances and at what stage of the proceedings can leniency be withdrawn? What implications does the withdrawal of leniency from one company have for other applicants?

There are currently no detailed rules on the withdrawal of leniency. According to publicly available information, there are no cases where applicants withdrew their leniency applications or where the authorities decided to withdraw leniency from one undertaking.

 

Scope of protection

12. What is the scope of leniency protection after it has been granted?

To be eligible under the leniency programme, an applicant must report the relevant facts of entering into (and implementing) a monopoly arrangement and provide important evidence to the regulatory authority. Leniency protection only covers the infringing activities that are revealed in the information provided by the applicant. In practice, it is not unusual for the National Development and Reform Commission (NDRC) to collect further evidence in addition to the evidence submitted by an applicant. If the NDRC considers that the quality of an applicant's evidence is not fully satisfactory, it may reflect this in the level of fine reduction granted.

 
13. Does the competition authority offer any further reduction in fines for an undertaking's activities in one market if it is the first to disclose restrictive agreements and practices in another market (leniency plus)?

There is currently no leniency plus or amnesty plus system under the Anti-Monopoly Law. However, under the Administrative Penalty Law, the regulators may consider the applicant's disclosure as deserving a lighter or mitigated penalty.

 
14. Does the grant of leniency affect a third party's ability to bring a follow-on damages action against a leniency applicant?

The Anti-Monopoly Law (AML) and the relevant rules are silent on whether a third party can bring a follow-on damages action against a successful leniency applicant. The Provisions on Several Issues Concerning the Application of Law in Hearing Civil Cases Caused by Monopolistic Conduct (Judicial Interpretation) issued by the Supreme People's Court, which took effect on 1 June 2012, do not address this issue either.

There is no provision in the AML that grants special treatment to leniency applicants in respect of follow-on damages actions. It is the authors' view that follow-on damages actions are generally allowed.

 

Confidentiality and disclosure

15. What are the rules relating to confidentiality during a leniency application?

Identity disclosure

Although there is no specific guidance in this respect, in practice the National Development and Reform Commission (NDRC) and the State Administration for Industry and Commerce keep the identity of the leniency applicant confidential during an investigation. The applicants' identities may be revealed in the authorities' final decisions.

Information disclosure

The currently applicable rules offer no particular guidance relating to confidentiality during a leniency application. The only requirement is for the Anti-Monopoly Law (AML) enforcement agencies to keep confidential both:

  • Trade secrets known to them during the investigation.

  • The identity of the person reporting the suspicious monopolistic conduct.

The regulatory authorities otherwise have discretion as to whether certain information is confidential. In practice, information related to a leniency application is generally kept confidential. However, for the purpose of verifying facts relating to a monopoly agreement, the regulators may disclose information that they obtain from one leniency applicant to another, to ensure that the applicants' statements are consistent.

The Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines) impose a more stringent confidentiality obligation on the AML enforcement agencies, which stipulates that all reports submitted and documents generated under the Draft Leniency Guidelines will be kept in special archives by the AML enforcement agencies and must not be disclosed to any third party without the consent of the business operator concerned. No other agencies, organisations or individuals can get access to this information. In the meanwhile, according to the Draft Leniency Guidelines, the documents will not be used as evidence in relevant civil proceedings, unless otherwise stipulated by the laws. In addition, if the AML enforcement agency decides not to grant leniency to a business operator, the agency must not use the documents submitted as evidence to prove the business operator's involvement into the monopoly agreement.

Confidentiality requests

There are no procedures for a leniency applicant to request anonymity or confidentiality of information provided (see above, Information disclosure). In practice, before NDRC publishes its decision on its website, the agency will firstly consult with the relevant business operator if there is any information in the final decision that the business operator would like to keep confidential. However, the NDRC has the discretion as to what information to be kept confidential in the public version.

 
16. What are the rules concerning disclosure of statements made in support of a leniency application?

Domestic submissions and domestic discovery

The applicable rules do not contain provisions concerning disclosure of statements made in support of a leniency application. In practice, statements submitted are kept confidential.

In addition, the Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines) further clarifies that all the reports submitted and documents generated under them must not be used as evidence in relevant civil proceedings unless otherwise stipulated by the laws (see Question 15, Information disclosure).

Domestic submissions and foreign discovery

In theory, foreign courts may request assistance from the Chinese Government for the disclosure of evidence submitted in China under multilateral or bilateral treaties between China and their countries.

However, the Draft Leniency Guidelines provides that without the business operator's consent, the Anti-Monopoly Law enforcement agency will not disclose the reports submitted and documents generated under the Draft Leniency Guidelines to any third party, including any government agencies (see Question 15, Information disclosure).

Foreign submissions and domestic discovery

In theory, as for information submitted in China (see above, Domestic submissions and foreign discovery), Chinese courts may request the disclosure of evidence submitted in other jurisdictions through the mechanisms provided by multilateral or bilateral treaties between China and the relevant countries. However, due to a lack of precedents, it is not clear how Chinese courts' requests will be handled in practice if they concern information submitted during anti-trust investigations in other jurisdictions.

 

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities from other jurisdictions in relation to leniency? If so, what is the legal basis for and extent of co-operation?

The three Chinese Anti-Monopoly Law (AML) enforcement authorities (that is, the Ministry of Commerce (MOFCOM), the National Development and Reform Commission (NDRC) and the State Administration for Industry and Commerce (SAIC)) have signed memorandums of understandings (MoUs) with their counterparts in various foreign jurisdictions. 

For example, in July 2011, the MOFCOM, NDRC and SAIC signed MoUs with the US Federal Trade Commission (FTC) and Department of Justice (DoJ), laying out the framework for long-term co-operation between these anti-trust agencies.

In September 2012, the NDRC and the SAIC signed MoUs with the Directorate General for Competition of the European Commission to enhance the co-operation and co-ordination on anti-trust matters between the EU and China.

In addition, the NDRC has separately entered into MoUs with the:

  • The Competition Bureau of Canada.

  • Australian Competition and Consumer Commission (ACCC).

  • Japan Fair Trade Commission.

  • UK Office of Fair Trading (OFT)

  • Korea Fair Trade Commission (KFTC).

The SAIC has signed MoUs with the:

  • OFT.

  • KFTC.

  • ACCC

  • Competition authority of Russia.

  • Portuguese Competition Authority.

  • Brazilian Counsel for Economic Defence.

Under some MoUs, such as those with the US and the EU, the signatories agree to exchange information and/or directly co-ordinate their enforcement activities. However, it remains unclear how these provisions may affect the leniency programme in China. In the Qualcomm investigation, an abuse of dominance case, it is reported that the NDRC and the KFTC exchanged experience and information related to their investigations into the company. However, to date, according to publicly available information, there has been no case of co-operation between the NDRC or the SAIC and foreign regulatory authorities in a monopoly agreement investigation.

 

Proposals for reform

18. Are there any proposals for reform?

According to the working arrangement made by the Anti-Monopoly Commission under the State Council, the National Development and Reform Commission (NDRC) is now drafting a unified guideline regarding leniency programme. On 2 February 2016, the NDRC issued the Draft Guidelines for the Application of the Leniency Program to Cases Involving Horizontal Monopoly Agreements (Draft Leniency Guidelines) to seek public opinions.

Besides the Draft Leniency Guidelines, the NDRC is also drafting another five guidelines respectively on auto industry, abuse of IP rights (State Administration for Industry and Commerce, Ministry of Commerce and the State Intellectual Property Office are also involved), commitment programmes, exemptions and calculation of penalties and illegal gains. It is believed that these guidelines will provide more clarification to the general provisions under the current Anti-Monopoly Law regime.

 

Online resources

Chinese Central Government

W www.gov.cn

Description. This is the official website of the central government, where the official Chinese version of the Anti-monopoly Law, National Development and Reform Commission and State Administration for Industry and Commerce rules can be found.

Supreme People's Court of The People's Republic of China

W www.court.gov.cn

Description. This is the official website of the Supreme People's Court of China, where the official Chinese version of the Judicial Interpretation can be found.

National Development and Reform Commission (NDRC)

W www.ndrc.gov.cn

Description. This is the official website of the National Development and Reform Commission, where the official Chinese version of the authority's penalty decisions can be found.

State Administration for Industry and Commerce (SAIC)

W www.saic.gov.cn

Description. This is the official website of the State Administration for Industry and Commerce, where the official Chinese version of the authority's penalty decisions can be found.



The regulatory authority

Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission (NDRC)

Head. Mr ZHANG Handong

Contact details. #38 South Yuetan StreetXicheng District, Beijing 100824PR China

T +86 10 6850 1554
E jjj@ndrc.gov.cn
W http://jjs.ndrc.gov.cn (www.practicallaw.com/3-517-6021)

Responsibilities. The Bureau of Price Supervision and Anti-Monopoly is responsible for:

  • Drafting administrative laws and regulations on price supervision and inspection.

  • Guiding and organising price supervision and inspection.

  • Handling activities and cases related to commodity price, service price and fee collection involving violations of price-related laws by central government agencies.

  • Handling price-related monopoly activities.

  • The administrative review of cases and appeals against penalties for price violations.

Person/department to apply to. The First Division of Anti-Price Monopoly and the Second Division of Anti-Price Monopoly are responsible for NDRC's anti-trust investigations. However, no person/department is specifically designated for the purpose of the leniency programme.

Procedure for obtaining application documents. Not applicable. There is no standard application form.

Anti-Monopoly and Anti-unfair Competition Enforcement Bureau of the State Administration for Industry & Commerce (SAIC)

Head. Ms REN Airong

Contact details. 8 Sanlihe DongluXichengquBeijingChina100820

T +86 10 8865 0507
E df@saic.gov.cn
W www.saic.gov.cn/english/aboutus/Departments/index.html

Responsibilities. The Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau of the SAIC is the regulatory authority in charge of enforcing the provisions against monopoly agreements, abuses of dominant position and abuses of administrative power (except price-related monopoly practices). It is also responsible for drafting specific rules on anti-monopoly and anti-unfair competition, and for undertaking enforcement actions.

Person/department to apply to. The Anti-Monopoly Enforcement Division and the Anti-Monopoly Legal Guidance Division are in charge of SAIC's anti-trust investigations. However, no person/department is specifically designated for the purpose of the leniency programme.

Procedure for obtaining application documents. Not applicable. There is no standard application form.



Contributor profiles

Susan Ning, Senior Partner

King & Wood Mallesons

T +86 10 5878 5010
F +86 10 5878 5599
E susan.ning@cn.kwm.com
W www.kingandwood.com

Professional qualifications. China, 1988

Areas of practice. Anti-trust and competition; international trade.

Recent transactions

  • Advised on anti-trust and competition law issues under the Anti-Monopoly Law (AML) and the Unfair Competition Law and various competition provisions spread over several pieces of legislation.

  • Assisted various clients to cope with anti-trust investigations launched by the National Development and Reform Commission and the State Administration for Industry & Commerce. Assisted clients to apply for leniency treatment before the AML enforcement authorities.

  • Advised on merger clearance before the Ministry of Commerce (MOFCOM) and advising on AML compliance issues.

  • Represented clients in private litigations under the AML.

  • Undertaken more than 200anti-trust merger control filings on behalf of various clients, comprising mostly multinational companies.

  • Established the Anti-trust and Competition Group in King & Wood Mallesons.

Languages. Mandarin, English

Professional associations/memberships. Currently chairs the Antitrust Committee of the Inter-Pacific Bar Association and is an active participant of the American Bar Association's anti-trust forum.

Publications. Has published a number of textbooks and articles including the following:

  • China Anti-Monopoly Law Guide, published by CCH Hong Kong Limited, 2010 (textbook).

  • China's Anti-Monopoly Law: Retrospect and Prospect on the Fourth Anniversary, Asian Legal Business, August issue, 2012 (article).

  • Judicial interpretation of the Supreme Court is having a significant impact on Chinese Anti-Monopoly cases, IFLR, online, 2012 (article).

Kate Peng, Partner

King & Wood Mallesons

T +86 10 5878 5071
F +86 10 5878 5599
E pengheyue@cn.kwm.com
W www.kingandwood.com

Professional qualifications. China, 2004; New York, US, 2012

Areas of practice. Anti-trust and competition; intellectual property.

Recent transactions

  • Represented domestic and multinational companies in competition investigations and leniency applications before the NDRC and SAIC.

  • Advised clients on reviewable practice under the AML, especially on their practice in the IP field.

  • Represented clients in anti-trust litigations.

  • Handled numerous merger control filings before MOFCOM.

Languages. Mandarin, Cantonese, English

Sibo Gao, Associate

King & Wood Mallesons

T +86 10 5661 2483
F +86 10 5878 5599
E gaosibo@cn.kwm.com
W www.kingandwood.com

Professional qualifications. China, 2014

Areas of practice. Anti-trust and competition.

Recent transactions

  • Advised domestic and multinational companies in competition investigations and leniency applications before the NDRC and SAIC.

  • Advised clients on merger clearance.

Languages. Mandarin, English


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1247448362877", "objName" : "Cartel Leniency China", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/4-504-9363?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-34f33658:15b1ff6cd04:-73cc", "analyticsSessionCookie" : "2-34f33658:15b1ff6cd04:-73cb", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }