Antitrust review 8 years only two times rejected the merger and acquisition of the best step by step?2016-08-07 14:34:25 312 ℃
In fact, with Chinese state-owned enterprises reform and mixed ownership advance and innovation to grow and expand rapidly, the number of mergers and acquisitions of Chinese enterprises are gradually increasing, this also means that the concentration of business operators review highlight the growing importance of anti monopoly review.
The director - General of the Anti Monopoly Bureau of the Ministry of Commerce of the original, the State Council antimonopoly Committee Office Director Shang Ming told the China business signs up for "the reporter:" Ministry of commerce is responsible for mergers and acquisitions to declare the review, a qualified merger, must be approved to implementation and operation, which is a mandatory obligation. "
Shortly before the convening of the Forum on intellectual property rights, the public said: now there are a lot of companies do not declare the completion of the merger, this phenomenon is not uncommon. We tried to make a lot of efforts, but the results did not reach, so here hope with you for once, when your company in line with the "anti-monopoly law" provisions of the concentration of business operators conditions, we have to declare. Otherwise, you a offenders. "
Eight years only shoot two case.
"In our China one of the illegal this thing, a lot of people do not think, typical to run a red light, for example, do not know is to protect their personal safety. "Anti trust law" is the same, it is not a rigid restrictions on the enterprise, it is to protect the rights of enterprises, is to create a fair competitive environment for the market, the legal basis." Shang Ming told reporters.
In fact, according to the Ministry of Commerce statistics, after the concentration of business operators to review the declaration, 97% will be approved. "Even if less than 3%, it is not a stick killed say no. We see 2008 Ministry of Commerce from the Anti Monopoly Bureau since its establishment, eight years of law enforcement practice only shoot in two cases, one is Coca Cola's acquisition of Huiyuan, the meaning of these two cases is very important. In addition, there are more than and 20 cases, there is a problem of damage to the competition, additional restrictive conditions, the company also completed the acquisition." Shang Ming said.
Although the vast majority of cases will be able to focus on the review, but it should be applied for the delay has not yet applied for enterprises will be affected by the investigation, even a serious impact on the entire process of mergers and acquisitions.
For example, in July 27th, the United States was the health of the Ministry of Commerce antitrust investigation, the Ministry of Commerce antitrust bureau issued a "alleged failure to report the business operators to focus on file for investigation. Its background is March 1 this year, the United States in a large Health announced to issue shares to buy stake in the corresponding final Ciming medical 100% of the shares, this is a direct threat to competitors ikang. Thereupon, the latter report said the acquisition of behavior, a serious violation of the "anti-monopoly law" and the Ministry of Commerce of the relevant provisions, to break the current competition of China's private medical market.
It is not difficult to see that in the fierce competition in the market, some of the industry, the number of enterprises in the merger, is bound to cause the attention of the same industry competition. Even if the supervision department of the Ministry of Commerce antitrust bureau did not notice, competitors also initiate the report, in a sense, this further strengthen the necessity of centralized review of the operators.
The application relates to diagnostic data requirements
An unnamed industry experts told reporters: "there is a process of industry data accumulation in various countries of the anti-monopoly legislation. From the Ministry of Commerce and other departments for you timely filed for review, the purpose is not block a merger or an impact on enterprise business process, more important is that the industry thoroughly, only the data of each industry establish clear data model, and ultimately to the fair market construction plays a positive role in promoting. "
Indeed, in the "China business newspaper" reporter for the past few years, in an interview with the antitrust issues, many lawyers and experts have mentioned the relevant market, the calculation of the problem. How to define the relevant market directly determines whether the merger transaction needs to be reviewed by the concentration of business operators. The statistics of industry data thoroughly will undoubtedly contribute to the "relevant market".
Antitrust experts, Beijing Gaopeng law firm on runner lawyer told reporters: "market statistics has been is anti antitrust investigation of the problem, in foreign countries have special third party institution engaged in this business, while the domestic is more in the beginning and accumulation stage."
According to the "Regulations" of the State Council on the standard for declaration of concentration of business operators, meet one of the following standards of concentration of business operators, concentrated before should be declared in advance to the competent department of Commerce of the State Council: one is the worldwide sales of all business operators involved in the concentration of the last accounting year total more than 10 billion yuan, and at least two operators on Accounting in the territory of the China annual turnover exceeded 400 million yuan; the two is all business operators involved in the concentration on a fiscal year in Chinese domestic total turnover of more than 2 billion yuan, and at least two operators on a fiscal year in the territory of the Chinese turnover exceeded 400 million yuan.
However, how to calculate the turnover, it relates to the definition of the relevant market issues. With Google's acquisition of Motorola as an example, the two companies although are multinationals, although Google in 2010 will search business moved to Hong Kong, but the company still in China, carry out other business, so the acquisition to after the Ministry of Commerce of the people's Republic of China Anti Monopoly Bureau to review the assessment. And whether it can be passed, it relates to the definition of the relevant market.
Again to drops and excellent step merger transactions, for example, why drops and excellent step began will think you do not need to review, and said, "we believe that the current drops and excellent step China were not profitable and excellent step China in a fiscal year turnover did not reach reporting standards". The Ministry of Commerce said it was difficult to go down without a review of the transaction.
Extension of fair competition review policy
In fact, the concentration of business operators of antitrust investigation is directly related to the extension of the review policies of fair competition, if the fair competition policy review is ex ante constraint, so the anti monopoly law on competition policy implementation is afterwards constraint mechanism.
2015, the CPC Central Committee and the State Council issued a progressive establishment of competitive policy based positioning, in June 2016, a fair competitive review system introduced. In this regard, anti monopoly law experts, when Jianzhong, vice president of China University of political science and law said: "the establishment of competition policy plays an important role in the means of our economic policy goal is to spend time transformation, economic policy operating mechanism to change. Means that the relationship between competition policy and industrial policy, competition policy and investment policy and financial policy, trade policy, employment policy, consumption policy and so on the relationship to change, the allocation of resources to change. "
However, it is worth noting that, as the supreme legal authority of the competition law, the anti-monopoly law does not make specific provisions on these issues.
Shang Ming pointed out: "competition law is the market economy of the Great Charter, the status is very high, very authoritative. In "anti monopoly law" legislation, anti monopoly legislation are "anti-monopoly law" is the highest authority of law, related to competition things else should be subordinated to it, but in the end did not do is not only dealing with intellectual property and antitrust relationship, also includes the relationship between including processing and industrial sectors, no account, leaving only the practice to solve. "
Obviously, concentration of business operators of anti monopoly review for the anti monopoly regulation and industry convergence and difference to Administration for Industry and commerce is responsible for the abuse of market power, the national development and Reform Commission is responsible for the anti price monopoly, on the concentration of business operators review more help in the industry data thoroughly, and competition policy and industrial policy coordination to provide support.
Thus, as is still clear, from the perspective of the establishment of a fair competitive market, the initiative to apply for a review of the rights of enterprises is a kind of protection.
Simple review and conditional pass
In general, some of the reasons for the merger is not willing to submit a review of the reasons for the review so that it missed a favorable business opportunities, because once the regulatory authorities involved in the review, there will certainly be a time on the issue.
Longan senior partner at the law firm, longan law firm Shanghai branch business lawyer Qiu Shaoming said: "operators of the law focused on the trial is 30 days, if necessary for further investigation can be extended for another 90 days. This period is not short, but the key is that there is still time to prepare the material, the Ministry of commerce is the time from the beginning of a complete range of materials, while the material is complete and relevant departments have a lot of discretion."
According to Qiu Shaoming lawyer's argument and operator's general centralized review from the preparation of the material to the end of the review, 9 months to 1 years of time. This time to some enterprises caused by psychological pressure.
However, the Ministry of Commerce antitrust bureau is precisely the consideration of this issue, the introduction of a centralized summary of the operator to review the program, there are one or more of the following circumstances, you can apply for a simple review of the procedures. For example, in the same market, all the business operators involved in the concentration of market share of less than 15%; there is the relationship between the upstream and downstream operators involved in the concentration, which occupies in the downstream market share is less than 25%; in the same market, there is no relationship between the upstream and downstream business operators involved in the concentration for, in each trading related market share is less than 25%; participate in the establishment of a joint venture in Chinese overseas undertakings, the joint venture is not engaged in economic activities in the territory of China; undertakings involved in the acquisition of shares or assets of overseas enterprises, the overseas enterprise does not engage in economic activities in Chinese territory; joint venture joint control by the operators of more than two, the focus is one or more than one operator control."
In addition to the summary procedure, the conditional operator's centralized review case also finds a balance between the enterprise merger and the establishment of a fair market order.
September 11, 2014, Shang Ming in a press conference at the State Department had said: "6 years, the Ministry of Commerce unconditional approval of 849 cases, accounting for about 97% of all of the cases which are concluded; conditional approval of four pieces of prohibited 2, the two add up to about 3 per cent of all of the cases which are concluded."
After a lapse of two years, the latest data show that the new data show that the conditional approval of the case reached 20 a few pieces, is still prohibited 2". Two data comparison, it is not difficult to see, in recent years to be attached by the case showed a increasing trend, and two years to prohibit the case without a case.
However, in the case of the merger of additional restrictive conditions, once the competition environment or competition conditions change, the additional restrictive conditions will be lifted. For example, on June 8 this year, the Ministry of Commerce Announcement 2016 No. 23 "on the lifting of Wal Mart's acquisition of 33.6% yihaodian executive stock ownership concentration limits condition announcement lifted when mergers and acquisitions in the review additional restrictive conditions.
The necessary patent problem in the standard is difficult.
In fact, compared to the current general concern of the current acquisition of the turnover problem, the anti-monopoly or the concentration of the operator to focus on the issue of intellectual property rights issues more prominent.
Shang Ming told reporters: in the review of corporate mergers and acquisitions may arise some problems, the intellectual property is often very important factor. For example, structural problems in mergers and acquisitions, the so-called structural problems is two enterprise production products, to strengthen the market forces you, feel the market is too big, maybe in the future it will hinder others from entering the field, or a monopoly behavior is also good, it's necessary to carry out the structural stripping, the spin off sometimes intellectual property is as a delaminated unidirectional, some and products, together with the peel. "
"For example, we have stripped a pig Mycoplasma hyopneumoniae vaccine, the vaccine has long been dominated by foreign pharmaceutical companies, we only in Nanjing a company. Finally, we will in which a vaccine production stripping, and stripped of all the manufacturing technology and intellectual property rights, and you want to to ensure the future purchase of the vaccine production, can make the vaccine survived. This is a very typical case of intellectual property rights."
There Microsoft acquisition of NOKIA, where the head of the standard need to have the possibility of abuse of patents, but also related to the ban on the issue, but also related to the principles of standardization organizations. In addition, it also involves a very interesting phenomenon, that is, when Microsoft's acquisition of Microsoft, NOKIA through mergers and acquisitions, the acquisition of NOKIA's manufacturing sector, which expands the power of its own mobile phone manufacturing. But Nokia is a intellectual property patent technology and manufacturing technology company, was once the world's largest mobile communications business, which sold the manufacturing technology later became the pure patent holders, people call it the patent giant, also call it patent trolls.
"The biggest problem is that between the patent technology of mobile phone is give each other reciprocal concessions, including like now of Huawei Company, you buy my patent, I bought your hedge. When you don't make a mobile phone, your patent pure is to sell others. So called giant or, called rogue or, from this point of view, you do not have to bargain with others, you can have the impulse and the possibility of price increases. This is the case of intellectual property rights, Nokia is a sell manufacturing technology company, so we in the review to a Guilong over regulation, to prevent them from being unscrupulous patent fees. " Shang Ming said.
(China business report)
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