SAMR says government measures affecting business activity must undergo review, including certain enforcement and procurement plans.
China’s top antitrust regulator has detailed how its fair-competition review regime applies to government documents ranging from internal approval submissions and meeting minutes to enforcement plans and procurement documents, providing practical guidance on the scope of the review system.
The State Administration for Market Regulation (SAMR) used its official antitrust WeChat account on Sunday to release the first batch of Q&As on the fair-competition review regime. The system is designed to prevent government policies from excluding or restricting competition by requiring scrutiny of measures affecting business activity before they are introduced.
China formally established the mechanism 10 years ago, but officials still face practical questions over which government documents, plans and other measures fall within its scope.
One area of uncertainty concerns formal submissions through which administrative agencies seek government approval. Such documents are generally considered internal and don't need to undergo fair-competition reviews, SAMR said.
But if the matter submitted for approval is a policy measure affecting business activity that can be implemented once the government gives its consent, the relevant content must be reviewed before the submission is made.
Meeting minutes are treated similarly. They don't themselves fall within the review scope because their main purpose is to record and communicate decisions. But if requirements recorded in the minutes lead to a policy measure affecting business activity, that measure must undergo review at the drafting stage.
The answers show that what matters is whether the documents contain or lead to measures affecting business activity, rather than their form alone.
Administrative inspection and enforcement plans generally require fair-competition reviews according to the regulator. Reviews should focus on whether such plans impose discriminatory enforcement standards on businesses from other regions, add inspection items or increase the frequency of inspections, it said.
Tender and procurement documents may also fall within the review scope and be subject to spot checks or complaint-based supervision, SAMR said.
The Q&As further clarify that township governments must review measures affecting business activity because they qualify as administrative authorities under Chinese law.
Administrative agreements with businesses are covered when they are used to pursue administrative or public-service objectives, while ordinary civil contracts in which government bodies act as equal parties aren't.
Beijing has increasingly relied on fair-competition reviews as part of its wider push to curb local protectionism and build a unified national market. The system is intended to identify government measures that could harm competition before they take effect, complementing ex-post antitrust enforcement against abuses of administrative power.
Source: MLex
