Interim Provisions on Prohibiting Acts of Abuse of a Dominant Market Position
Interim Provisions on Prohibiting Acts of Abuse of a Dominant Market Position
Interim Provisions on Prohibiting Acts of Abuse of a Dominant Market Position
Order of the State Administration for Market Regulation No.11
June 26, 2019
Article 1 In accordance with the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-Monopoly Law"), these Provisions are formulated with a view to preventing and stopping acts of abuse of a dominant market position.
Article 2 The State Administration for Market Regulation (hereinafter referred to as the "SAMR") shall be responsible for the work of anti-monopoly law enforcement on acts of abuse of a dominant market position.
In accordance with the provisions of Paragraph 2 of Article 10 of the Anti-Monopoly Law, the SAMR shall authorize the administrative departments for market regulation of provinces, autonomous regions and municipalities directly under the Central Government (hereinafter referred to as "provincial departments for market regulation") to be responsible for the work of anti-monopoly law enforcement on acts of abuse of a dominant market position within their respective administrative regions.
The anti-monopoly law enforcement agencies as used in these Provisions include the SAMR and the provincial departments for market regulation.
Article 3 The SAMR shall be responsible for investigating and dealing with the following acts of abuse of a dominant market position:
1. acts which span provinces, autonomous regions or municipalities directly under the Central Government;
2. acts which have fairly complicated cases or have a significant impact on the whole country; and
3. acts which the SAMR considers it necessary to investigate and deal with directly.
For the acts of abuse of a dominant market position listed in the preceding paragraph, the SAMR may designate provincial departments for market regulation to investigate and deal with them.
When provincial departments for market regulation investigate and deal with acts of abuse of a dominant market position in accordance with their authorization, they shall promptly inform the SAMR if they find that acts do not fall within their scope of investigation and dealing, or although acts fall within their scope of investigation and dealing, it is nevertheless necessary for them to be investigated and dealt with by the SAMR.
Article 4 When investigating and dealing with acts of abuse of a dominant market position, anti-monopoly law enforcement agencies shall treat all operators equally.
Article 5 "Dominant Market Position" refers to a market position where an operator can control the prices, volumes or other transaction conditions of commodities or services (hereinafter collectively referred to as "commodities") in a relevant market, or can obstruct or affect other operators' capability to enter into the relevant market.
"Other Transaction Conditions" as used in this Article refer to factors other than commodity price and volume that can have a substantive impact on market transactions, including commodity varieties, commodity quality, terms of payment, mode of delivery, after-sales services, transaction selection, technical constraints, and so on.
"Can obstruct or affect other operators from entering into the relevant market" as used in this Article includes excluding other operators from entering into the relevant market, or delaying other operators from entering into the relevant market within a reasonable period of time, or resulting in a situation where other operators can enter into the relevant market, but the cost of entry is substantially increased, so that they are thus unable to effectively compete with existing operators, and other situations.
Article 6 In the determination of the market share of an operator in a relevant market in accordance with Item 1 of Article 18 of the Anti-Monopoly Law, consideration may be given to the proportion of the amount of sales, the quantity of sales or other indicators of the operator's specific commodity in the relevant market within a certain period of time.
In the analysis of the status of competition in a relevant market, consideration may be given to the status of development of the relevant market, the number and market shares of existing competitors, the degree of commodity differentiation, innovation and technological changes, sales and procurement models, the situation of potential competitors, and other factors.
Article 7 In the determination of the capability of an operator to control a sales market or a raw material procurement market in accordance with Item 2 of Article 18 of the Anti-Monopoly Law, consideration may be given to the said operator's capability to control the upstream and downstream markets of the industrial chain, as well as sales or procurement channels, its capability to influence or determine prices, volumes, contract term or other transaction conditions, its capability to have prioritized access to the raw materials, semi-finished products, spare parts and related equipment essential for enterprises' production and operation and other resources that enterprises need to inject.
Article 8 In the determination of an operator's financial strength and technical conditions in accordance with Item 3 of Article 18 of the Anti-Monopoly Law, consideration may be given to the said operator's asset size, profitability, financing capability, R&D capability, technical equipment, capability of technology innovation and application, intellectual property rights owned and so on, as well as the way and degree by which the said financial strength and technical conditions can allow the said operator to expand business or consolidate or maintain its market position, and other factors.
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Order of the State Administration for Market Regulation No.11
June 26, 2019
Article 1 In accordance with the Anti-Monopoly Law of the People's Republic of China (hereinafter referred to as the "Anti-Monopoly Law"), these Provisions are formulated with a view to preventing and stopping acts of abuse of a dominant market position.
Article 2 The State Administration for Market Regulation (hereinafter referred to as the "SAMR") shall be responsible for the work of anti-monopoly law enforcement on acts of abuse of a dominant market position.
In accordance with the provisions of Paragraph 2 of Article 10 of the Anti-Monopoly Law, the SAMR shall authorize the administrative departments for market regulation of provinces, autonomous regions and municipalities directly under the Central Government (hereinafter referred to as "provincial departments for market regulation") to be responsible for the work of anti-monopoly law enforcement on acts of abuse of a dominant market position within their respective administrative regions.
The anti-monopoly law enforcement agencies as used in these Provisions include the SAMR and the provincial departments for market regulation.
Article 3 The SAMR shall be responsible for investigating and dealing with the following acts of abuse of a dominant market position:
1. acts which span provinces, autonomous regions or municipalities directly under the Central Government;
2. acts which have fairly complicated cases or have a significant impact on the whole country; and
3. acts which the SAMR considers it necessary to investigate and deal with directly.
For the acts of abuse of a dominant market position listed in the preceding paragraph, the SAMR may designate provincial departments for market regulation to investigate and deal with them.
When provincial departments for market regulation investigate and deal with acts of abuse of a dominant market position in accordance with their authorization, they shall promptly inform the SAMR if they find that acts do not fall within their scope of investigation and dealing, or although acts fall within their scope of investigation and dealing, it is nevertheless necessary for them to be investigated and dealt with by the SAMR.
Article 4 When investigating and dealing with acts of abuse of a dominant market position, anti-monopoly law enforcement agencies shall treat all operators equally.
Article 5 "Dominant Market Position" refers to a market position where an operator can control the prices, volumes or other transaction conditions of commodities or services (hereinafter collectively referred to as "commodities") in a relevant market, or can obstruct or affect other operators' capability to enter into the relevant market.
"Other Transaction Conditions" as used in this Article refer to factors other than commodity price and volume that can have a substantive impact on market transactions, including commodity varieties, commodity quality, terms of payment, mode of delivery, after-sales services, transaction selection, technical constraints, and so on.
"Can obstruct or affect other operators from entering into the relevant market" as used in this Article includes excluding other operators from entering into the relevant market, or delaying other operators from entering into the relevant market within a reasonable period of time, or resulting in a situation where other operators can enter into the relevant market, but the cost of entry is substantially increased, so that they are thus unable to effectively compete with existing operators, and other situations.
Article 6 In the determination of the market share of an operator in a relevant market in accordance with Item 1 of Article 18 of the Anti-Monopoly Law, consideration may be given to the proportion of the amount of sales, the quantity of sales or other indicators of the operator's specific commodity in the relevant market within a certain period of time.
In the analysis of the status of competition in a relevant market, consideration may be given to the status of development of the relevant market, the number and market shares of existing competitors, the degree of commodity differentiation, innovation and technological changes, sales and procurement models, the situation of potential competitors, and other factors.
Article 7 In the determination of the capability of an operator to control a sales market or a raw material procurement market in accordance with Item 2 of Article 18 of the Anti-Monopoly Law, consideration may be given to the said operator's capability to control the upstream and downstream markets of the industrial chain, as well as sales or procurement channels, its capability to influence or determine prices, volumes, contract term or other transaction conditions, its capability to have prioritized access to the raw materials, semi-finished products, spare parts and related equipment essential for enterprises' production and operation and other resources that enterprises need to inject.
Article 8 In the determination of an operator's financial strength and technical conditions in accordance with Item 3 of Article 18 of the Anti-Monopoly Law, consideration may be given to the said operator's asset size, profitability, financing capability, R&D capability, technical equipment, capability of technology innovation and application, intellectual property rights owned and so on, as well as the way and degree by which the said financial strength and technical conditions can allow the said operator to expand business or consolidate or maintain its market position, and other factors.
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