Yes. The merger control regime is set forth in the China Antimonopoly Law ("AML") and relevant provisions. 

The national regulatory agency is the State Administration of Market Regulation ("SAMR”). For the sake of completeness, SAMR launched a pilot program on 1 August 2022, delegating its merger review power for simplified procedure cases to the provincial Administration for Market Regulation (“local AMR”) in Beijing, Shanghai, Guangdong, Chongqing and Shaanxi for three years (to be ended on 31 July 2025).

No, there is not a supranational agency that has, or may have exclusive competence. 

Yes. The merger filing requirements are set out in the AML and the Provisions on the Review of Concentrations of Business Operators ("Review of Concentration Provision”). Filing thresholds are also set forth in the Provisions of the State Council on Thresholds for Prior Notification of Concentrations of Business Operators ("Filing Thresholds Provision”).

Under the AML, the following types of transactions will be deemed a “concentration of business operators” and caught by the merger control regime:

1. a merger;
2. an acquisition of control of another party through an asset or equity acquisition; and
3. possession of control or “decisive influence” over another party by contract or otherwise.

The new establishment of a jointly-controlled joint venture falls within the scope of scenario 3 and is also caught by the AML. 

If the minority shareholder has gained control over the other business operator, the minority investment will constitute a "concentration" and a notification will be required if the relevant turnover thresholds are met. 

Yes, foreign-to-foreign transactions are captured as long as such transactions meet the local nexus test. The local nexus test requires that the China and global turnover of the parties to the concentration meet the filing thresholds. 

A Concentration that meets one of the following thresholds will trigger the filing obligation:

1. The combined worldwide turnover of all the business operators concerned in the preceding financial year is more than RMB 10 billion, and the nationwide turnover within China of each of at least two of the business operators concerned in the preceding financial year is more than RMB 400 million; or
2. The combined nationwide turnover within China of all the business operators concerned in the preceding financial year is more than RMB 2 billion, and the nationwide turnover within China of each of at least two of the business operators concerned in the preceding financial year is more than RMB 400 million.

The filing is mandatory to the extent that the filing thresholds are met. 

Notifiable transactions are subject to pre-closing filings. The filings must be made after the formal transaction documents are executed (except for certain scenarios, such as a transaction in the way of tender offer) and clearance must be obtained prior to closing. 

Legally speaking, there is an automatic waiting period but in practice, formal decisions will be issued at the expiry of the review period. 

The filing should be made via the online filing system in the form of a "Notification Form". The "Notification Form" requires extensive information/documents, such as general information about the parties, information of shareholders and ultimate controller, information on affiliated companies information regarding the transaction (such as transaction value, transaction description, transaction structure, and rationale of the transaction), information on the relevant market including the relevant market definition, market situation and the effects of the merger, and efficiencies, among other details.

There is a short form notification (a notification requiring less detailed information where competition issues are unlikely). 

No, there are not filing fees. 

The AML stipulates three phases of the review period as a preliminary review period (“Phase I”), a further review period (“Phase II”) and a 60-calendar-day extended review period (“Phase III”).

The time limit of Phase I is 30 calendar days, during which the authority shall conduct a preliminary review of the filing materials and decide whether to conduct a further review by or before the end of Phase I.

The time limit of Phase II is 90 calendar days. If a further review is decided, the authority shall complete the review by or before the end of Phase II.

Under certain circumstances where the review cannot be completed within Phase II, the review period may be extended for another 60 calendar days (Phase III). The authority shall complete the review by or before the end of Phase III.

There is no further extension permitted by the AML beyond Phase III.  The authority will stop the clock under certain circumstances, and the review will only be resumed once such circumstances for suspension are eliminated. There is no statutory time limit on the period of suspension.

It is worth noting that the submission of the filing materials to the authority does not mean that the Phase I review period starts immediately. There is a preliminary review period after the initial submission and before the start of Phase I, during which the authority will check and confirm the completeness of the filing materials. There is no statutory time limit on such a preliminary review period.

The review can be completed at any time within the review period.

The test is whether a proposed merger or acquisition has a substantial anticompetitive effect on any relevant market. 

Depending on the specific circumstances and characteristics of a concentration of business operators, the following factors shall be taken into consideration comprehensively when reviewing the concentration:

1. The market shares of the business operators participating in the concentration in the relevant market and their market power in the relevant market;
2. The degree of market concentration in the relevant market;
3. Impact of the concentration on market entry and technology progress;
4. Impact of the concentration on the consumers and other business operators;
5. Impact of the concentration on the national economic development. 

To assess whether a concentration may affect the market competition, the ability, motive and possibility of relevant business operators to exclude or restrict competition solely or jointly may also be considered. And the following factors shall be taken into consideration comprehensively when assessing whether the business operators participating in the concentration would obtain or reinforce their market power: 

1. The market share of business operators participating in the concentration in the relevant market and the competition status of the related market;
2. The substitution level of the products or services of the business operators participating in the concentration;
3. Production capacities of the business operators in the relevant market that are not participating in the concentration, and the substitution level between the products or services of the non-participating business operators and those of the participating business operators;
4. The ability of the business operators participating in the concentration to control the sales market or the raw material procurement market;
5. The ability of the customers of the business operators participating in the concentration to switch suppliers;
6. The financial strength and technical capabilities of the business operators participating in the concentration; and
7. Purchasing power of the downstream customers of business operators participating in the concentration. The anti-competitive effects can be rebutted by “efficiency”, "countervailing buyer power" or “failing firm” arguments but is difficult in practice.

The authority may grant unconditional clearance, conditional clearance (i.e. subject to remedies), or prohibit the transaction.

Yes, early engagement with the authority on remedies is allowed. In cases where there are severe substantial concerns, some parties choose to discuss the possible level of remedies with the authority early on.

Sanctions for not filing: pursuant to Article 58 of the AML, for the concentration that has no effect of eliminating or restricting competition, the parties will be imposed a fine of up to RMB 5 million. For the concentration that has or may have the effect of eliminating or restricting competition, the transaction parties will be ordered to stop the concentration, dispose of shares or assets, or transfer the business or adopt other necessary measures to restore the market situation before the concentration within a time limit, and will be imposed a fine of not more than 10% of its sales amount in the previous year. There are no sanctions for the individuals. There are no sanctions for filing an incorrect/incomplete notification. 

The penalties are the same as these for not filing. 

Yes. If there is evidence proving that the concentration has or may have the effect of eliminating or restricting competition, the authority is entitled to require the parties to make the filing in written form. If the concentration has not been implemented, the parties shall not implement the concentration before making filing and obtaining approval from the authority. if the concentration has been implemented, the parties shall make a declaration within 120 days of the date of receipt of the written notice, and take necessary measures such as suspending the implementation of the concentration to reduce the adverse effects of the concentration on competition. In practice, the authority may not actively review or challenge mergers that are not notifiable but will initiate formal/informal investigations upon third-party complaints. 

For a transaction that meets the filing thresholds or the filing is required by the authority in written form but fails to file before implementation, the authority shall initiate an investigation subject to preliminary facts and evidence, and order the parties to submit documents and materials relating to whether the transaction constitutes a concentration, whether the concentration reaches the filing thresholds, whether the concentration has been filed, and whether the concentration has been implemented in violation of the law within 30 calendar days. The authority shall complete the preliminary investigation into whether the transaction under investigation is a concentration of business operators that has been illegally implemented within 30 days from the date of receiving the above documents and materials.  If it is determined that the concerned concentration has been implemented illegally, the authority shall decide to carry out further investigation within the time limit of 120 calendar days.

China has undergone a milestone regarding the antitrust legislative regime. The first amendment of AML has been taken into effect in August 2022, followed by the formal implementation of multiple related provisions. Under such background, we have observed the following worthing noting trends:

First, several significant procedural changes including the Stop-the-Clock mechanism, the local pilot review system, and the amended intervention into transactions below the filing thresholds, come into being from the milestone. SAMR also makes efforts in the process of drafting multiple guidelines that related to the newly implemented laws and regulations, so that to enable the newly updated or introduced mechanisms to be applied smoothly as soon as possible.

Second, the legal liability has been significantly strengthened under the new AML, as the penalty amount for the illegal implementation of concentration has been increased 10 times or more compared to the old law. SAMR is also paying more attention to complex or high-profile transactions regarding specific industrial sectors including the pharmaceutical industry, platform economy and semiconductor industry.

Therefore, it is expected that the legislation and enforcement of the antitrust regime in China is still under continuous development, and thus close attention should be paid, and a cautious approach should be taken. 

In the absence of some key legal concepts, such as "control definition", there would be uncertainty or ambiguity in the filing assessment.

Accompanied by the legislation milestone, SAMR has also published a draft for comments version of the amendment of the Filing Thresholds Provision, where the filing turnover thresholds are revised as below:

1. The combined worldwide turnover of all the business operators concerned in the preceding financial year is more than RMB 12 billion, and the nationwide turnover within China of each of at least two of the business operators concerned in the preceding financial year is more than RMB 800 million; or
2. The combined nationwide turnover within China of all the business operators concerned in the preceding financial year is more than RMB 4 billion, and the nationwide turnover within China of each of at least two of the business operators concerned in the preceding financial year is more than RMB 800 million.

In addition to the turnover filing thresholds, the draft also introduced a new hybrid threshold based on turnover and deal value, for the purpose of catching and reviewing “killer acquisitions”.

The above amendment is likely to be formally published within the year 2023.