28 November, 2015
On 15 October 2015, Mofcom and the European Commission (“EC”) entered into a best practices framework for cooperation in reviewing mergers.
The framework marks growing cooperation between regulators handling multinational transactions. In practice, this means:
Parties to multinational transactions should develop and deploy a consistent story to those agencies charged with reviewing a transaction. To the extent that substantive differences are warranted (for example, with respect to market definition, theories of harm or efficiency arguments), the parties and their legal advisors will need to ensure that these are explained.
Bilateral cooperation agreements do not override each authority’s duty to keep filing materials provided to it confidential (in fact, this recent framework strengthens confidentiality). But authorities will often ask for “waivers” to allow such materials to be shared, for example between Mofcom and the EC. Parties should consider offering these at an early stage, where inter-agency cooperation may be helpful.
Such contacts may ultimately benefit merging parties, allowing for issues to be dealt with more efficiently, as well as allowing Mofcom to further develop and build its expertise in handling large and complicated deals.
BACKGROUND
The EC and Mofcom have been steadily increasing the scope of their cooperation in recent years. In 2004, DG Competition concluded Terms of References on the EU-China Competition Policy Dialogue with Mofcom.
All three China Antimonopoly Enforcement Agencies have signed a joint memorandum with the US Federal Trade Commission (“FTC”).
Officials from both the EC and FTC have referred to effective cooperation with Mofcom in a number of prior merger decisions, including
Thermofisher / Life Technologies.
The new cooperation agreement
The framework is short (a mere three pages).
Confidentiality: The EC and Mofcom agree that, where confidential information is shared between the regulators pursuant to a waiver, each side will ensure the protection of business secrets and other confidential information. When information is provided to either the EC or Mofcom, it will typically contain extensive information about the parties to the transaction, much of which is confidential and/or constitutes business secrets. In the EU and in China, the EC and Mofcom are obliged to keep this confidential, and only use it for the purpose for which it was provided (i.e. reviewing the transaction in their own jurisdiction) .[1] The framework, like other cooperation agreements, does not override this duty. However, in practice, both authorities may ask for waivers which allow this information to be exchanged. Whilst technically voluntary, such waivers are normally given as a means of demonstrating effective cooperation
Liaison: the EC and Mofcom may designate a liaison offer regarding case cooperation. When grating waiver requests, in practice, it is normal to designate the Case Manger (at the EC) and the case handler (at Mofcom).
It remains to be seen how big an impact the framework will have. One potential barrier to effective cooperation at present is timing.
Historically, personnel shortages at Mofcom have led to protracted reviews and an asymmetric review timetable with other major jurisdictions, including the EU. For example, the Glencore/Xstrata acquisition was cleared unconditionally in the US in July 2012, conditionally in the EU in November 2012, and then by Mofcom in April 2013. Recent procedural and structural changes to Mofcom are aimed at improving review times in China, and this may – ultimately – disappear as a practical issue.
THE BROADER COOPERATION LANDSCAPE
China’s two other antimonopoly enforcement agencies, the National Development and Reform Commission (“NDRC”) and the State Administration for Industry and Commerce (“SAIC”) have separate agreements with the EU Commission.
In addition, both agencies have signed new bilateral agreements in the previous months. The NDRC signed an MOU with the Japan Fair Trade Commission (13 October), and with the Australian Competition and Consumer council on 5 November. SAIC signed an MOU with the Russian Federal Antimonopoly Service in September this year. These join a long list of similar cooperation agreements (see the Annex for a complete list).
These agreements demonstrate that China’s competition agencies value international cooperation, and intend to benefit from, and shape, multinational investigations in years to come.
As with the framework, these agreements generally cover high level aspects of potential cooperation, including:
- Keeping each other informed of significant competition policy and enforcement developments in their respective jurisdictions;
- Enhancing each agency’s capabilities with appropriate activities related to competition policy and law such as training programs, workshops, study missions and internships;
- Exchanging experiences on competition law enforcement;
- Seeking information or advice from one another regarding matters of competition law enforcement and policy if appropriate;
- Providing comments on proposed changes to competition laws, regulations, rules and guidelines; and
- Exchanging views with respect to multilateral competition law and policy; and
- Safeguarding confidentiality.
To date, there is no public information available as to whether, and how often, the NDRC and SAIC have cooperated with the EC and other overseas regulators on specific matters. Last year, the NDRC imposed fines in two autoparts cases where the companies were subject to proceedings in other jurisdictions (alternators and starters, as well as ball bearings).
ANNEX: INTERNATIONAL COMPETITION ENFORCEMENT COOPERATION BETWEEN CHINA AND OTHER JURISDICTIONS
| FOREIGN JURISDICTION | CHINA COMPETITIONAUTHORITIES | DATE |
|---|---|---|
| Australia (ACCC) | Mofcom | 20 May 2014 |
| SAIC | 18 September 2012 | |
| NDRC | 5 November 2015 | |
| Austria (the Austrian Federal Competition Authority) | Mofcom | 14 August 2015 |
| Brazil (Administrative Council for Economic Defence) | SAIC | 13 September 2012 |
| Canada (Competition Bureau) | SAIC | March, 2015 |
| Mofcom | May, 2015 | |
| EU (European Commission) | NDRC/SAIC | 20 September 2012 |
| Mofcom | 15 October 2015 | |
| Japan (JFTC) | NDRC | 13 October 2015 |
| Kenya (Competition Commission) | Mofcom | 13 June 2014 |
| Korea (Korea Fair Trade Commission) | SAIC | 30 May 2012 |
| NDRC | 30 May 2012 | |
| Mongolia (The Fair Competition and Consumer Protection Bureau) | SAIC | 21 September 2009 1 August 2013 |
| Portugal (Competition Bureau) | SAIC | 15 November 2013 |
| Romania (Competition Commission) | SAIC | 13 April 2010 |
| Russia (the Federal Antimonopoly Service) | SAIC | September 2015 |
| 13 October 2014 | ||
| UK(the Office of Fair Trading, now the Competition & Markets Authority) | SAIC | 21 March 2011 |
| NDRC | 10 January 2011 | |
| US (Department of Justice, “DOJ” and FTC | Tripartite MOU including Mofcom, NDRC and SAIC. | 27 July 2011 |
| Vietnam | SAIC | 27 March 2009 |
[1] In China, this obligation is reflected in Article 41 of the Antimonopoly Law, as well as Article 17 of the Rules for the Notification of Concentrations of Undertakings. In EU law, this obligation is enshrined in Article 17 of the EU Merger Regulation.
For further information, please contact:
Stephen Crosswell, Partner, Baker & McKenzie
stephen.crosswell@bakermckenzie.com
