The State Administration for Market Regulation (SAMR), China's antitrust enforcer, has announced a raft of antitrust-related measures to address COVID-19, ranging from fast-tracking transactions to looking more favourably at competitor collaborations targeted specifically at the COVID-19 pandemic.
China joins several other jurisdictions, including the EU, UK and US, among others, in efforts to respond to the crisis proactively and responsively.
On the merger control front, SAMR is proposing to speed up its review of transactions intended to tackle COVID-19. Examples include emergency production JVs to ramp up production of critical supplies (eg drugs, medical instruments or equipment), transactions designed to facilitate food supply and security, to support sectors heavily affected by the crisis (eg food and beverage, hospitality, tourism, etc), or to stimulate recovery and production.
Transactions that would ordinarily qualify for simple case treatment (eg if the 15 per cent and 25 per cent market-share thresholds are not tripped) can be expected to be waived through relatively quickly.
It currently takes SAMR roughly two to three months from filing to clear a simple case. A COVID-19-badged deal can expect to see this timetable shortened based on SAMR’s stated commitment.
Unlike transactions notified under the standard case procedure, SAMR does not normally consult individual stakeholders (which can take time) when reviewing a simple case. It relies instead on a 10-day public notice process, during which any third party can comment on a notified transaction. It does not need to wait for individual stakeholders’ comments as in standard cases, so it has greater control over the timetable and can move faster to clear a deal.
In cases outside the simple case remit, given the need to consult broadly, transactions with no, or with some but resolvable issues, can take up to four to five months to be cleared.
Of course, it can take considerably longer – upwards of nine-plus months – to clear complex transactions involving remedies. It remains to be seen just how quickly SAMR can move in COVID-19-badged deals within the standard case realm, especially if it needs to wait for and consider the views of individual stakeholders.
Absent complaints and/or high market shares, we would expect such deals to be fast-tracked. And, in cases with potential issues, the stated policy intent suggests that there will need to be greater emphasis on efficiencies to facilitate clearance of a COVID-19-badged deal on an expedited basis.
Separately, SAMR has been accepting filings electronically since early February following its return from the extended Chinese New Year break. A welcome development, it is hoped that electronic filings will continue post COVID-19.
In the conduct arena, SAMR has indicated that it will waive through certain competitor collaborations arising from the crisis to the extent they protect the consumer interest, facilitate public interest goals (eg disaster relief), support technological progress and/or improve efficiency.
Examples include: collaborations designed to improve or develop new vaccines, medical equipment or diagnostic test kits; or those intended to support SMEs. It will do so under its existing power to exempt certain anti-competitive agreements from the anti-monopoly law’s prohibitions if, among others, the agreement is indispensable, it generates efficiencies, consumers benefit and there is no significant impact on competition.
The signaled relaxation of the antitrust rules does not mean SAMR will not take action in appropriate cases. In fact, its policy statement makes clear that it will keep a close eye on commercial practices related to the availability and supply of certain products and services. This includes critical supplies for managing the COVID-19 crisis (eg drugs, masks, disinfectants, medical equipment, and APIs or other inputs needed for their production), public utilities (eg gas, water and electricity) and other essential supplies that affect consumers’ daily lives and livelihood.
Conducts that are on top of their agenda range from monopoly agreements, such as price-fixing, output restriction, market segmentation, joint boycott, and resale price maintenance, to potential abusive conducts, such as selling at unfairly high price, refusal to deal, and exclusive dealing.
SAMR has indicated that it, and its local branches, are happy to assist businesses and to provide guidance on complying with the AML. This invitation mirrors the one in its draft guidance on antitrust compliance published earlier this year when it encouraged businesses to consult SAMR on compliance questions. Businesses are not obliged to take up the offer, and there is no indication currently that they will somehow be penalized if they do not.
Clearly, SAMR intends to continue its robust enforcement of the AML. This means that transactions or competitor collaborations which are not specifically targeted at addressing the COVID-19 pandemic will continue to be scrutinised in the same manner.
For transactions and competitor collaborations designed to tackle the crisis, SAMR’s stated intention of fast-tracking its review and favourable treatment is welcome as businesses grapple with the crisis.
The policy is of course temporary and businesses will need to be ready to scale back and/or otherwise amend arrangements that are not appropriate or necessary in a post-COVID-19 world.
We will continue to keep you informed on how authorities are responding to the COVID-19 crisis.
In the meantime, please visit our coronavirus alert hub's antitrust page, which contains resources relating to issues that may arise in antitrust.