Authored by Michael Gu and Shuitian Yu
The Ministry of Commerce (“MOFCOM”) finally published the Guiding Opinions on Notification of Simple Cases of Concentration of Undertakings (the “Guiding Opinions”) on 18 April 2014, two months after the Interim Provisions on Standards Applied to Simple Cases of Concentration of Undertakings (the “Interim Provisions”), which were released in February this year. The purpose of the Interim Provisions is to reduce heavy workload for both MOFCOM and the notifying undertakings and to accelerate the review process. However, the Interim Provisions mainly set out the eligibility criteria for simple cases entitled to the simplified procedure and provide no guidance on the specific procedural issues. The issuance of Guiding Opinions signals the formal implementation of the simplified merger review procedure. The Guiding Opinions clarify certain practical issues in relation to the “simple case” review such as the requirements for submission of documents, consequence of the identification of “simple case” status, the timeline for deciding on “simple case” status. According to the Guiding Opinions, the filing parties’ load of paperwork will be significantly reduced compared with that under the normal review procedure. Nevertheless, the status of “simple case” does not necessarily guarantee a “phase one clearance”. Parties to the concentration shall be cautions in using such so-called “fast track” mechanism and be aware of the potential risk of longer notification process resulting from revocation of “simple case” status.
One of the most significant procedural benefits of “simple case” status is that the notification form is substantially simplified and the load of paperwork has been lessened under the simplified form. Particularly, in comparison to the long-form notification, the simplified notification form eliminated the following six sections:
supply and demand structures in the relevant markets
horizontal or vertical cooperation agreements
possible efficiencies generated by the concentration
whether the concentration involves any enterprise in bankruptcy or on the verge of bankruptcy
opinions of the relevant stakeholders on this concentration.
In addition, the filing parties are required to state the rational for applying for simple case review procedure. This is in line with the Interim Provisions.
Application, acceptance, and revocation of “simple case” status
The parties to the concentration have the options either to apply for pre-notification consultation with MOFCOM to ascertain the status of “simple case” or directly submit a simplified form notification. In other words, the pre-notification consultation with MOFCOM regarding the simple case identification is not compulsory.
Upon review of the notification, MOFCOM will accept the case as simple case if the concentration meets the simple case qualifications. The notifying party should resubmit notification as non-simple case if it does not qualify.
The Guiding Opinions enable third party to challenge the simple case certification through raising objections within the public announcement period. After accepting the notification as a simple case, MOFCOM publicly announces each simple case application on its website for ten days. Any third party is allowed to raise objections within the above notification period as to the “simple case” status. The announcement includes the case name, summary of the concentration, brief introduction of the participating undertakings, and rational for applying for simple case review procedure. Objection should be supplemented with corresponding evidence and contact information, lack of which will render the objection inadmissible. Upon review of the objections raised by third parties, if MOFCOM considers that a concentration does not qualify as a simple case, the simple case status will be revoked and the notifying party shall resubmit the notification under the standard notification procedure.
Even during the substantial review phase, if MOFCOM considers the concentration non-qualifying, it may still revoke the simple case certification and require the notifying party to resubmit notification as a non-simple case.
In addition, MOFCOM can revoke a simple case certification if the filing party provides false or misleading information or conceal important information.
Such revocation provisions might lead to substantial uncertainty as to the simple case status. Given that the merging parties are obliged to re-file the notification under the normal notification system if the simple case notification is denied in any phase, the notifying party would be better off should they not to submit under the simplified review procedure. In other words, if a simple case application is not accepted or the status is subsequently revoked, the entire merger process could take longer than a standard process.
No guarantee of phase I clearance
The Guiding Opinions is still silent on the procedural benefits of a concentration being classified as “simple”, other than a lessening of the information gathering burden. Without any mentioning of an indicative merger review timeframe for simple case, it means no guarantee of Phase I clearance. MOFCOM is reluctant to give such guarantee probably due to the increasing number of merger notifications (more than 200 cases in each of recent years) and limited personnel. Nevertheless, in practice, we expect most simple case concentrations could be cleared in Phase I absent special circumstances.
The Guiding Opinions is an important building block in establishing a simplified regime for the simple case procedure. We believe that it will accelerate the review process of merger control and promote efficiencies. Not only the parties to a simple case concentration can benefit directly since the burden of paperwork is relieved and the waiting period is expected to be shorten, even other mergers which are unqualified for “simple case” status might get benefit indirectly in the sense that MOFCOM can focus its resources in reviewing more important cases and the average review period of the merger concentrations could be reduced accordingly. Apart from no guarantee of streamlined timetable, uncertainty of “simple case” status, coupled with the timing risk resulting from revocation of simple case certification, may deter the notifying party from seeking “simple case” status and eventually still resort to the standard review procedure to avoid potential adverse effect.
In general, the Guiding Opinions is a key step towards MOFCOM’s long stated goal of accelerating the review procedure for simple cases that do not merit an in-depth investigation. As a trial version, it is anticipated that the Guiding Opinions would be improved and updated in great details in the future. Notifying parties should weigh the pros and cons appropriately as to whether to choose submitting a simple case notification to avoid wasting time in re-submitting under a normal review procedure.