Thursday, February 16, 2017
How Far Can the Anti-Monopoly Enforcement Agencies Go When Adopting Commitment Decisions? The Need to Safeguard the Commitment Procedure Under the Chinese Anti-Monopoly Law
ABSTRACT: Since the Chinese Anti-Monopoly Law (AML) entry into force in 2008, the commitment decision as an alternative to an infringement decision has been established for use by the Anti-monopoly Enforcement Authorities (AMEAs) in putting an end to anticompetitive conduct. As Article 45 of the AML stipulates, if the AMEA deems the commitments offered by an undertaking adequately address the identified competitive concerns, the AMEA shall suspend the investigation, which means it may put a long investigatory process to an end without establishing the illegality of the conduct and without imposing a fine on it. The purpose of commitment decisions is to increase procedural efficiency, which represents ‘a rapid solution’ for bringing anticompetitive behaviour to an end and restoring effective competition to the relevant market. So Article 45 of the AML emphasises that commitment decisions are proposed to ‘eliminate the effects of such [monopolistic] conduct by implementing specific measures within the time limit prescribed by the AMEA’.3 This is similar to Article 9 of Regulation 1/2003 under EU competition law that ‘such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission’.