China (PRC)

An exemption for monopoly agreement in anti-trust enforcement refers to a monopoly agreement which formally falls into the prohibition categories of anti-monopoly law which will be exempt from penalties or not be deemed illegal for reasons of economic efficiency and/or public social interest. Article 15 of the Anti-Monopoly Law (the AML) provides seven situations and related statutory conditions of monopoly agreement exemptions, while at the same time requiring an undertaking to be obligated to prove that the agreement it has concluded or intends to conclude satisfies the statutory situations and conditions of exemptions. Then, how should an undertaking apply Article 15 of the AML to enjoy the monopoly agreement exemptions? Is the undertaking obliged to apply to anti-trust enforcement agencies for prior review or filing?Monopoly agreement exemption under the AML: directly applicable exemption
There is an exemption mode, under which an undertaking must apply to anti-trust enforcement agencies for review and approval of exemption at the time of concluding an agreement. Such mode requiring prior review and approval needs to invest a huge amount of resources to investigate and verify those agreements which have not yet been performed, leading to difficulty to achieve desired results. The Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the treaty issued by the Council of EU on December 16, 2002 flags the replacement of the then existing prior review and approval system by a directly applicable exception system in terms of monopoly agreement exemptions, which means that an undertaking may directly perform its agreements upon conclusion, with no need to seek prior review or approval from the anti-trust enforcement agencies.


The AML neither requires an undertaking to seek prior review or approval from anti-trust enforcement agencies for exemption of its monopoly agreements, nor expressly allows the direct performance of such monopoly agreements. The Guideline for General Conditions and Procedures of Monopoly Agreement Exemptions (draft for comment) (the Exemption Guideline) recently released by National Development and Reform Commission does not require any prior review or approval of monopoly agreements either. More importantly, the Exemption Guideline highlights that an undertaking or association should make its own judgement on whether any agreement it has concluded or intends to conclude will satisfy the conditions under Article 15 of the AML; it may apply to anti-trust enforcement agencies for exemption consultation under limited situations; and it can submit application for exemption only after anti-trust enforcement agencies initiate investigation but before the final decision is rendered. As we can see from the above, China’s anti-trust enforcement agencies confirm the ‘directly applicable exemption’ mode under the AML through the Exemption Guideline, which means that a monopoly agreement shall be deemed as exempt as long as it satisfies the situations and conditions of Article 15 of the AML, unless it is charged by the AML.Exemption Guideline sets up procedures
In the event that a monopoly agreement is charged by AML, how should an undertaking apply Article 15 of the AML to obtain individual exemption in the course of enforcement?

The Exemption Guideline clarifies the competent authorities, timeline of application, steps and documentation needed in connection with monopoly agreement exemptions, which will largely increase the practicability of Article 15 of the AML and the transparency of enforcement. Specifically:
(1) The authorities in charge will be the State Council and provincial anti-trust enforcement agencies.
(2) An undertaking or association shall submit exemption application after the anti-trust enforcement agencies initiate the investigation but before the final decision is rendered.
(3) The specific procedures are demonstrated in Fig 1.

Our suggestions
Since there is no prior review or approval procedure for exemption and anti-trust enforcement agencies usually do not accept exemption consultation, uncertainty remains strictly speaking even if the undertaking reasonably believes that an agreement it has concluded or intends to conclude satisfies the exemption requirements under Article 15 of the AML. Therefore, for cautious reason, even though only a small likelihood that an agreement will be deemed as monopoly agreement exists, it is advisable for the undertaking to proactively: preserve all the documents as required by the Exemption Guideline; and collect evidence that can prove the said agreement will not substantially restrict competition in the relevant market and can enable the consumers to share the benefits provided by the agreement.







2、在反垄断 。《豁免指南》明确,豁免申请应在反垄断执法机构调查经营者或行业协会之后但在作出决定之前提出。
3、垄断协议个案豁免申请的流程如 Fig 1。



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