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.

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If the undertaking takes the initiative of reporting the monopoly agreement to the Anti-Monopoly Authority and gives evidence of the agreement, the SAMR may impose a mitigated punishment or exemption from punishment as the case may be (Article 56 AML). In that sense, Article 56 provides the basis for a leniency regime, which was eventually developed by the Interim Provisions on the Prohibition of  …

Leniency

Anyone who refuses to provide materials or information may be ordered by the Authority to rectify the situation, and be imposed a fine. The fine provided for an individual is up to CNY 500, 000 (US$ 75,000).

The fine for an entity is up to 1% of the group total turnover of the previous year. If the undertaking has no turnover in the last year or it is to difficult to calculate, the fine can be up to CNY 5 million (US$ 747,000). In addition, the undertaking's credit records can be impacted. (Articles 62 and 64 of the AML)

Refusal to provide materials or information

In case of a monopoly agreement, the undertaking will be ordered to cease its illegal behavior, have its illegal gains confiscated, and have a fine imposed of not less than 1% but not more than 10% of its sales turnover for the preceding year. If an infringing party has no turnover in the last year, a fine up to CNY 5 million can be imposed. If the monopoly agreement has not been implemented yet, a fine of up to 3 million yuan (USD$ 448.000) may be imposed (Article 56 AML).

For determining the fine imposed on the undertakings, the SAMA takes into account, the nature, extent and duration of the illegal behavior and the elimination of consequences of the illegal acts when determining the specific amount of the fines (Article 59 AML).

Trade associations can be fined up to CNY 3 million (USD$ 448.000) and can have their licenses revoked in the event of a serious infringement. Individuals also can be held accountable and be fined up to CNY 3 million (USD$ 448.000). 

Lastly, organizers and facilitators of monopoly agreements can also be subject of the same penalties. 

The amended AML has added other larger fines. Article 63 of the AML provides that  : “With regard to any violation of the provisions of the present Law, if the circumstances are especially serious, the effects are especially adverse or the consequences are especially serious, the Anti-monopoly Law Enforcement Agency of the State Council may determine the specific amount of the fine at no less than 2 times but no more than 5 times of the amount of the fine prescribed”.

In each situation, the undertaking's credit score may also be impacted.

If the monopoly agreement causes losses to other undertakings or individuals, the victim may bring an action against the undertaking on the basis of civil liability (Section 60 AML). In that case, the statute of limitations will be the one applicable to general litigation, as referred to in Section 135 of the General Principles of Civil Law, which provide that the civil action shall be taken within two years from the knowledge of the tort.

Monopoly agreement

In case of an abuse of a dominant position, the sanction is almost the same as for monopoly agreements. The undertakings will be ordered to cease the infringement, its illegal proceeds will be confiscated, and a fine of not less than 1% but not more than 10% of its sales turnover for the preceding year will be imposed (Article 57 AML).

For determining the fine imposed on the undertakings, the SAMA shall take into account, the nature, extent, the duration of the illegal behavior and the elimination of the consequences of the illegal acts (Article 59 AML).

If the abuse causes losses to other undertakings or persons, the victim may bring an action against the undertaking on the basis of civil liability in the same conditions as for monopoly agreements.

Where an undertaking implementing any monopolistic act damages the public interests, the People's Procuratorate at the level of city divided into districts or above may institute civil public interest litigation at the People's Court in accordance with the Law (Article 60 AML).

Again, where an undertaking is subject to administrative punishment for violation of the provisions of the present Law, such punishment can be recorded in the credit record and announced to the public in accordance with the relevant provisions of the State (Article 65 AML).

If the violation is sufficiently serious, it can constitute a criminal offense and may be subject to criminal liability in accordance with the law (Article 67 AML).

Lastly, the fine can be increased by the Anti-monopoly Law Enforcement Agency from at least two but up to five times the amount if the circumstances, the effect or the consequences are particularly serious.

Abuse of a dominant position

If the undertaking takes the initiative of reporting the monopoly agreement to the Anti-Monopoly Authority and gives evidence of the agreement, the SAMR may impose a mitigated punishment or exemption from punishment as the case may be (Article 56 AML). In that sense, Article 56 provides the basis for a leniency regime, which was eventually developed by the Interim Provisions on the Prohibition of Monopoly Agreements released in June 2019 and the Leniency guidelines published in June 2020.

The Interim Provisions of 2019 develop SAMR's approach to leniency. The first undertaking to spontaneously come forward with material evidence relating to a monopolistic agreement and which provides full cooperation during the investigation may be granted immunity. Material evidence refers to evidence playing a decisive role in the initiation of an investigation or the establishing of the existence of monopolistic agreements. The first applicant may be fully exempted or see its fine reduced by at least 80%. The second applicant may be granted a fine reduction of between 30-50% and the third a reduction of between 20-30%.

The Leniency guidelines provide further clarifications on the functioning of the program. They specify that leniency only applies to horizontal agreements, not vertical agreements or abuse of market dominance. In addition, immunity will not be granted to the ringleader. Leniency may extend, at the discretion of the SAMR, to the confiscation of illegal gains sanction provided for by the AML.

The guidelines specify that an application may be made until a prior notice relating to an administrative penalty is issued. They also establish a marker system whereby an incomplete application may be made, as long as the missing information is provided within a specified time-limit.

Global Competition Law

925. Leniency

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Les notions juridiques connexes

925. Leniency

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Les notions juridiques connexes

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