A few days ago, there were media reports that the Legislative Affairs Office of the State Council had removed the anti-administrative monopoly from the Anti-Monopoly Law (draft) in a recent legislative amendment, and quoted experts’ comments as saying that this move indicates Legislators will try to focus anti-monopoly content on anti-economic monopolies. This has caused concern about the topic of the Anti-Monopoly Law.
On February 27, the reporter called the Legislative Affairs Office of the State Council. The above-mentioned statement on the deletion of the anti-administrative monopoly was not confirmed, but the relevant person of the Legislative Affairs Office disclosed another news to the reporter: According to the 2006 legislation promulgated by the Standing Committee of the National People's Congress at the beginning of the year. The plan has arranged for the preliminary review of the Anti-Monopoly Law (draft), which was not considered at the end of last year, according to the plan. According to the work arrangement, the Legislative Affairs Office will submit the draft law in May this year.
The reporter immediately called the Department of Law and Law of the Ministry of Commerce. An official of the department who asked not to be named told the reporter that the "Anti-Monopoly Law" (draft) is still in the legal system. It seems that it has not changed since it was submitted at the end of last year. The person also analyzed that according to the general procedure of the Third Reading of the National People's Congress (that is, three trials and three meetings of the Standing Committee), the possibility of submitting it from the Legislative Affairs Office in May should be very high.
This means that if the submission is successful, the "Anti-Monopoly Law", which is of great concern to all parties, is expected to be introduced at the end of the year. The amount of M&A filings is expected to increase from 300 million yuan to 1.5 billion yuan. In fact, whether the legislators will try to focus anti-monopoly content on anti-economic monopoly, the content of economic monopoly in the Anti-Monopoly Law (draft) has been receiving much attention. In particular, it is about the regulations on mergers and acquisitions.
According to the above-mentioned Ministry of Commerce, in the "Anti-Monopoly Law" (draft) of the Legislative Affairs Office, there are two types of corporate mergers and acquisitions that need to be declared: First, the concentrated transaction volume in China exceeds 1.5 billion yuan; Concentrate on the transaction amount, but the total assets of the parties in China or the total sales in the previous year exceeded RMB 5 billion.
In contrast, the reporter noted that in the revised draft of the Anti-Monopoly Law (draft) formed in late July 2005, the types of mergers that need to be declared are classified according to the following criteria: one is the transaction in China. The amount is more than 300 million yuan; the other is in the relevant domestic market, the total assets or total sales in the previous year ranked among the top 15 operators or merged with other operators, the transaction amount or total sales Meet the reporting standards set by the State Council.
The threshold for M&A filings has changed, and all parties are concerned about this. An official of the State Administration for Industry and Commerce, who asked not to be named, told reporters. The person participated in the revision of the Anti-Monopoly Law (draft). This person told reporters that one of the obvious changes is that the declared amount has changed from 300 million yuan to 1.5 billion yuan.
We think that the more reasonable M&A reporting standards are at least higher than they are now. A private enterprise boss said. He told reporters that for private enterprises with a certain scale, mergers and acquisitions of 200 million to 300 million yuan often occur. If the threshold is too low, according to the original standard of 300 million yuan, these mergers and acquisitions must be reported, it will be very troublesome. The behavior of the company also lost its meaning.
Some multinational companies such as Microsoft, Kodak, Intel, General Electric, Caterpillar, etc. have repeatedly stated that domestic regulations on mergers and acquisitions are stricter and inconsistent with international mergers and acquisitions practices. They believe that if the threshold for reporting is too low, the administrative agency will control many market mergers that are not subject to censorship, which will result in the declaration of the situation and the efficiency of the market.
However, it is reasonable to decide how much the M&A reporting standard is, and there is a big controversy. This is indeed a problem. If the threshold is too high, it may miss the review of some market behaviors that hinder competition. If it is too low, it will increase the cost of law enforcement and damage the economic efficiency of mergers and acquisitions. The key is to find a balance point. The official of the State Administration of Industry and Commerce told the reporter, but whether it is 500 million yuan, 1 billion yuan, or 2 billion yuan is reasonable, no one can say it, and even experts have proposed 5 billion yuan, 20 billion yuan.
It is also understood that the draft new law has been simplified in the procedures for mergers and acquisitions, and the maximum period for the prescribed merger and acquisition review has been reduced by 40 working days. The reporter found that in the draft of July last year, the time limit for the anti-monopoly agency to review the merger was 30 working days, the substantive examination was 120 working days, and the special circumstances could be extended by 30 working days.
In terms of M&A review, the EU has set a waiting period of 30 working days, and a substantive review period of 90 days to 4 months. Other countries have similar settings. As a country with anti-monopoly legislation, China’s anti- The review of mergers and acquisitions in the Monopoly Law, the amount of mergers and acquisitions, time and procedures, are in line with international standards, will not increase the burden of enterprises, and will not make the mergers and acquisitions of enterprises in an unsafe state. The official of the State Administration for Industry and Commerce said, but he also said that the current draft has not been reviewed, and there are variables in everything.
According to the relevant person, according to the Anti-Monopoly Law (draft), it is very likely that an anti-monopoly agency of the State Council will be established to coordinate anti-monopoly law enforcement.
The reporter learned that China currently lacks a unified and systematic anti-monopoly law. The current anti-monopoly laws are scattered in the "Price Law," "Anti-Unfair Competition Law," "Tendering Law," and "The State Council prohibits the market." Among the administrative regulations such as the Regulations on the Implementation of Regional Blockades in Economic Activities and the Decision on Regulating and Regulating the Market Economic Order, these legal systems are not sufficient to assume the heavy responsibility of the economic constitution. At the same time, there is no independent and authoritative anti-monopoly law enforcement agency. At present, in the actual work of anti-monopoly law enforcement, there are several departments similar to the functions of the anti-monopoly agency of the State Council to be established, including the Anti-monopoly Office of the State Administration for Industry and Commerce, the National Development and Reform Commission, and the System Department of the Market System Construction Department of the Ministry of Commerce.
Man Qing, deputy director of the Research Center for Multinational Corporations of the Ministry of Commerce, pointed out that in recent years, about 70% of foreign mergers and acquisitions in China are strategic industrial mergers and acquisitions, that is, long-term investment in the nature of global distribution. The direct consequence of such mergers is that China loses its leading position in the industry. The control of enterprises also threatens the domestic industry to face the monopoly of foreign capital. Therefore, it is necessary to set up a special anti-monopoly agency to effectively regulate the monopolistic risks that foreign capital may cause.
Monopoly status is not illegal, and the law does not object to it. The law opposes the use of monopoly status to prevent market competition, crowd out competitors and undermine market competition order. Therefore, how to judge the fact that it constitutes a monopoly will be very complicated, involving the economy. In terms of laws, accounting, and other aspects, the anti-monopoly authority's law enforcement ability is very high. The official of the State Administration for Industry and Commerce pointed out.
In addition, anti-monopoly law enforcement involves the significant interests of the company in the market and has an important impact on the behavior of the enterprise market. If the behavior that may constitute a market monopoly is not dealt with in a timely manner, it will bring damage to the market, but if the anti-monopoly is used indiscriminately, it will also pose a threat to the market mechanism. Therefore, it is very important to set up an inter-departmental anti-monopoly law enforcement agency to conduct anti-monopoly law enforcement objectively and cautiously.
The official of the Department of Law and Law of the Ministry of Commerce, who asked not to be named, also told reporters that to solve the current anti-monopoly law enforcement problem and to guarantee independent and fair ruling on anti-monopoly cases, while avoiding interference from administrative power, it is necessary to set up a special Antitrust agency. But the official also pointed out that how to ensure the independence of law enforcement by antitrust agencies is a big problem.
Foreign experience may give us some inspiration. For example, the Japan Fair Trade Commission is such an independent, quasi-judicial antitrust agency. Unlike the Japanese parliamentary cabinet system, which is composed of members of the Diet, the members of the Fair Trade Commission are not members of Congress, so they can Maintain the independence of anti-monopoly law enforcement.
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