Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Exemptions are provided for under Article 20 AML according to which an agreement forbidden by Articles 18 and 19 but complying with certain conditions may be exempted. Such agreement must purport to:
(I) where the agreement is for the purpose of improving technologies, researching and developing new products; 
(II) where the agreement is for the purpose of improving product quality, reducing cost, …

Exemptions

The prohibition in the amended AML is directed against two types of anticompetitive agreements:

According to Article 16, “monopoly agreements” refers to “agreements, decisions or other concerted actions that eliminate or restrict competition”.

Article 17 AML lists 6 types of monopoly agreement:

- fixing or changing the prices of goods;

- limiting the production or sale of a good; 

- segmenting the sales market or the raw material procurement market;

- restricting the purchase of new technology or new equipment, or the development of new technology or new product;

- other monopolistic agreements as determined by the Anti-monopoly Law Enforcement Agency of the State Council.

Business operators are forbidden to reach agreements with trading partners that eliminate or restrict competition. Article 18 lists:

- fixing the price of goods for resale to a third party;

- restricting the minimum price of goods to a third for resale party; or

- other monopoly agreements as determined by the Anti-monopoly Law Enforcement Agency of the State Council.

Regarding the methods used, Article 9 states that “[u]ndertakings shall not use data, algorithms, technologies, capital advantages and platform rules, etc. to engage in any monopolistic practices[..]”

Lastly, Article 19 adds that “[a]n undertaking shall not organize any other undertaking to reach any monopoly agreement or provide any substantive assistance for any other undertaking to reach any monopoly agreement.” 

In June 2019, the SAMR published Interim Provisions of the Prohibition of Monopoly Agreements. Under those provisions, horizontal and vertical agreements are declared per se infringements unless the undertakings at issue establish that the exemption conditions set out in Section 15 are satisfied. Conversely, a rule of reason is established concerning agreements which do not constitute hardcore restrictions. The draft version of the Interim provisions contained a de minimis rule which ultimately was not included in the final document.

Finally, the SAMR also published, in June 2020, Guidelines for the automotive sector and Guidelines on Intellectual Property agreements, adopted in January 2019.

The prohibition

Exemptions are provided for under Article 20 AML according to which an agreement forbidden by Articles 18 and 19 but complying with certain conditions may be exempted. Such agreement must purport to:

(I) where the agreement is for the purpose of improving technologies, researching and developing new products; 

(II) where the agreement is for the purpose of improving product quality, reducing cost, improving efficiency, unifying specifications or standards, or carrying out professional labor division; 

(III) where the agreement is for the purpose of improving operational efficiency and enhancing the competitiveness of small- and medium-sized undertakings; 

(IV) where the agreement is for the purpose of realizing public interests such as energy conservation, environmental protection and disaster relief and aid;

 (V) where the agreement is for the purpose of mitigating serious decrease in sales amount or obviously excessive production during economic recessions; 

(VI) where the agreement is for the purpose of safeguarding the legitimate interests in foreign trade or foreign economic cooperation; and 

(VII) any other circumstance as prescribed by laws and the State Council.

Where the provisions of Article 17, Paragraph 1 of Article 18 and Article 19 do not apply as a result of  (I) to (V) of Article 20, the undertakings must show that the agreement they have concluded will not seriously restrict competition in the relevant market and will enable consumers to share the benefits arising from them.

Moreover, the amended AML now appears to have introduced a “safe harbor” for certain vertical agreements “if the undertakings can prove that such agreements do not have effects of eliminating or restricting competition.”

Global Competition Law

915. Exemptions

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Les notions juridiques connexes

915. Exemptions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise