Anti-monopoly Law of the People’s Republic of China Ⅱ

Article 28 Where the concentration of business operators will or may eliminate or restrict competition, the Anti-monopoly Law Enforcement Agency under the State Council shall make a decision to prohibit the concentration. However, if the business operators concerned can prove either that the favorable impact of the concentration on competition obviously exceeds the adverse impact, or that the concentration is in harmony with the public interests, the Anti-monopoly Law Enforcement Agency under the State Council may decide not to prohibit the concentration.

Article 29 Where the concentration of business operators is not prohibited, the Anti-monopoly Law Enforcement Agency under the State Council may decide to attach restrictive conditions for reducing the adverse impact of such concentration on competition.

Article 30 The Anti-monopoly Law Enforcement Agency under the State Council shall timely publicize a decision on prohibiting the concentration of business operators or a decision on attaching restrictive conditions to the concentration of business operators.

Article 31 Where a foreign investor participates in the concentration of business operators by merging or acquiring a domestic enterprise or by any other means, and national security is involved, besides the examination on the concentration of business operators in accordance with this Law, the examination on national security shall also be conducted according to the relevant provisions of the State.

Chapter V
Abuse of Administrative Power to Eliminate or Restrict Competition

Article 32 No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative power to limit, or limit in a disguised form, entities or individuals to the business operation, purchase or use of commodities provided by business operators designated by it.

Article 33 No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative power to block the free commodity circulation among different regions by:

1. Setting discriminatory charge items, implementing discriminatory charge rates, or fixing discriminatory prices for non-local commodities;

2. Imposing technical requirements or inspection standards on non-local commodities that are different from those on their local counterpart, or taking discriminatory technical measures, such as repeated inspections or repeated certifications on non-local commodities, so as to restrict the entry of non-local commodities into the local market;

3. Adopting the administrative licensing aimed at non-local commodities, so as to restrict the entry of non-local commodities into the local market;

4. Setting up barriers or adopting any other means to block either the entry of non-local commodities or the exit of local commodities; or

5. Blocking otherwise the free commodity circulation among different regions.

Article 34 No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative power to reject or restrict the participation of non-local business operators in local tendering and bidding activities by imposing discriminatory qualification requirements or assessment standards or by failing to publicize information according to law.

Article 35 No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative power to reject or restrict either investment in its jurisdiction or the establishment of local branches by non-local business operators by imposing unequal treatments on them that are different from those on the local business operators.

Article 36 No administrative organ or organization empowered by a law or administrative regulation to administer public affairs may abuse its administrative power to compel business operators to engage in monopolistic activities that are prohibited by this Law.

Article 37 No administrative organ may abuse its administrative power to formulate
provisions on eliminating or restricting competition.

Chapter VI
Investigation into Suspicious Monopolistic Conduct

Article 38 The Anti-monopoly Law Enforcement Agency shall investigate any suspicious monopolistic conduct according to law.

An entity or individual shall be entitled to tip off any suspicious monopolistic conduct to the Anti-monopoly Law Enforcement Agency. The Anti-monopoly Law Enforcement Agency shall keep the informer confidential.

The Anti-monopoly Law Enforcement Agency shall conduct necessary investigations, where the tip-off is made in written form and supported by relative facts and evidence.

Article 39 When investigating a suspicious monopolistic conduct, the Anti-monopoly Law Enforcement Agency may take the following measures:

1. Conducting the inspection by entering into the business premises of business operators under investigation or by entering into any other relevant place;

2. Inquiring of the business operators under investigation, interested parties, or other relevant entities or individuals, and requiring them to explain the relevant conditions;

3. Consulting and duplicating the relevant documents, agreements, account books, business correspondences and electronic data, etc. of the business operators under investigation, interested parties and other relevant entities or individuals;

4. Seizing and detaining relevant evidence; and

5. Inquiring about the bank accounts of business operators under investigation.

Before any of the measures prescribed in the previous paragraph is adopted, a written report shall be submitted to the principal of the Anti-monopoly Law Enforcement Agency for approval.

Article 40 When investigating a suspicious monopolistic conduct, there shall be at least two law enforcers, and they shall present their law enforcement certificates.

The law enforcers shall make notes on the inquiry and investigation, which shall bear the signatures of the persons under inquiry or investigation.

Article 41 The Anti-monopoly Law Enforcement Agency and its functionaries shall keep confidential the business secrets they have access to during the process of law enforcement.

Article 42 The business operators, interested parties and other relevant entities or individuals under investigation shall assist the Anti-monopoly Law Enforcement Agency in performing its functions; and shall not refuse or obstruct the investigation conducted by the Anti-monopoly Law Enforcement Agency.

Article 43 The business operators and interested parties under investigation shall be entitled to make statements. The Anti-monopoly Law Enforcement Agency shall verify the facts, reasons and evidence presented by the business operators and interested parties under investigation.

Article 44 Where the Anti-monopoly Law Enforcement Agency deems that a monopolistic conduct is constituted after investigating and verifying a suspicious monopolistic conduct, it shall make a decision on how to deal with the monopolistic conduct, and may publicize its decision.

Article 45 As for a suspicious monopolistic conduct that the Anti-monopoly Law Enforcement Agency is investigating, if the business operators under investigation promise to eliminate the effects of the conduct through the use of concrete measures within the time limit prescribed by the Anti-monopoly Law Enforcement Agency, the Anti-monopoly Law Enforcement Agency may decide to suspend the investigation. The decision on suspending the investigation shall state the concrete measures as promised by the business operators under investigation.

Where the Anti-monopoly Law Enforcement Agency decides to suspend the investigation, it shall supervise the implementation of the promise by the relevant business operators. If the business operators implement the promise, the Anti-monopoly Law Enforcement Agency may decide to terminate the investigation.

However, under any of the following circumstances, the Anti-monopoly Law Enforcement Agency shall resume the investigation:

1. The business operators fail to implement the promise;

2. Significant changes have taken place to the facts, on the basis of which the decision on suspending the investigation was made; or

3. The decision on suspending the investigation was made on the basis of incomplete or inaccurate information submitted by the business operators.