Shanghai SAMR issued Anti-Monopoly Compliance Guide
By Jianwei (Jerry) Fang Yuan (Joe) Wang Rui (Tricia) Wu
Shortly before the end of 2019, the Shanghai Administration for Market Regulation released for the first time its Anti-Monopoly Compliance Guide for Business Operators (the “Guide”).
The Guide aims to educate a wide range of business operators in Shanghai and enable their internal checks on compliance management in competition law areas. Specifically, the Guide enriches business operators’ awareness and understanding about monopolistic unlawful acts and improves their abilities to prevent and deal with anti-monopoly law non-compliance activities, through which the legal risks arising from business operators’ potential violation of the country’s Anti-Monopoly Law (“AML”) are expected to be more effectively averted and minimized.
The major contents of the Guide include (i) the legislative status of China’s AML, its related rules and regulations, and legal liabilities in aspects of administrative, civil and criminal for a business operator’s violation of the AML; (ii) how to establish and implement an effective anti-monopoly compliance strategy and program within a business operator; (iii) the identification and prevention of the four major categories of monopolistic unlawful activities as stipulated in the AML; and (iv) a step-by-step guide on how to effectively respond to and cooperate with anti-monopoly enforcement agency (“AMEA”)’s investigation.
The Guide points out that there is not an established set of anti-monopoly compliance management system that fits all business operators. By contrast, each business operator should draw up and implement its own anti-monopoly compliance measures after considering such factors as its business nature, business scale, financial status, management mode and primary risk sources in its business operation.
The Guide encourages business operators to build an anti-monopoly and competition law compliance program or strengthen the implementation of their existing programs. The Guide also urges them to make concerted efforts to cultivate a top-down culture of compliance with the AML among employees and management.
The Guide provides examples of systematic mechanisms that business operators may refer to and apply to realize their anti-monopoly compliance strategies, which include:
(i) an internal reporting and management approval mechanism;
(ii) a mechanism of personal commitment from management to uphold compliance with the AML;
(iii) an advisory and consultancy mechanism on competition law compliance that in-house counsel, external lawyer, and law enforcement agencies should be consulted;
(iv) a regular training program for employees in roles with greater exposures to compliance risks; and
(v) a risk control mechanism that includes rapidly-made remedies and appropriate responses in the event of AMEA’s investigation.
Meanwhile, the draft amendments to the AML which has been just released by China’s State Administration for Market Regulation (“SAMR”) on January 2, 2020, echoes the urgency with and importance for business operators to establish a robust anti-monopoly compliance system. In addition to the various new anti-monopoly rules introduced by the draft amendments, it has a significant increase in the maximum fines that can be levied on business operators, and management and employees may be charged with criminal liabilities for the business operator’s violation of the AML, along with severe penalties will be imposed for any refusal or obstruction in AMEA’s investigation.
A complete version of the Shanghai Guide (temporarily in Chinese only) can be downloaded by clicking “read the original” at the bottom left of this article.