Article 55 of China’s Anti-Monopoly Law, revised by the Standing Committee of the National People’s Congress on 24 June 2022, introduced an interview measure applicable to the abuse of administrative power to eliminate or restrict competition (“Interview Measure”). On 10 March 2023, the State Administration for Market Regulation (“SAMR”) promulgated Regulation on Prohibiting Abuse of Administrative Authorities to Eliminate or Restrict Competition (“Regulation”), of which Articles 24 and 25 stipulate the interview content, procedures and methods of the Interview Measure. On 27 October 2023, the SAMR announced Guidelines for enforcement of the Interview Measure (“Guidelines”), providing detailed implementation guidelines for Articles 24 and 25 of the Regulation. The Guidelines, a total of 28 articles, have been implemented since the date of announcement.
Article 24 (1) of the Regulation stipulates that the anti-monopoly law enforcement agencies may interview legal representatives or responsible persons of administrative agencies or organizations authorized to manage public affairs which are suspected of abusing their administrative power to eliminate or restrict competition. Firstly, the Guidelines defines the interview in Article 24 (1) as an enforcement measure. Secondly, it points out that the implementation entities of this measure, namely the anti-monopoly law enforcement agencies, include the SAMR and provincial bureaus for market regulation (“Provincial Bureaus”). The SAMR may entrust the Provincial Bureaus to conduct the Interview Measure. Thirdly, it is clarified in the Guidelines that the anti-monopoly law enforcement agencies may interview the interviewees collectively or individually when a suspect abuse involves multiple administrative agencies or organizations. In addition, the Guidelines stipulate that the Interview Measure can be conducted at any time, such as before, during and after the investigation; and the implementation of the Interview Measure will not affect the implementation of other enforcement measures, including filing a case, initiation an investigation, or proposing suggestions for handling to relevant superior authorities.
Article 24(2) of the Regulation stipulates that the content of the Interview Measure includes pointing out suspected abuse issues, hearing a description of the situation, and requiring the interviewees to propose improvement measures. The Guidelines further add two items to the interview content. They are guiding the interviewees to proactively eliminate relevant competition restrictions and tracking the results of subsequent implementation. In addition, the Guidelines clarifies that the proposed improvement measures should include specific content, the expected effects and the implementation period. According to the Guidelines, following Articles 15 (2) or 20 (2) of the Regulation, the case may be cancelled or the investigation may be terminated if the interviewees take immediate measures to correct their illegal behaviours after the interview.
Article 24 (3) of the Regulation stipulates that after the interview, the anti-monopoly law enforcement agency may notify the relevant superior authority of the interviewee about the interview, and the Provincial Bureau shall report the interview to the SAMR for records. The Guidelines further clarify the content of the records including the source and background of the interview, the facts of the alleged violation, the basis for determination, the overall situation of the interview, the content of the interview, the opinions of all parties, the improvement or written feedback of the interviewee after the interview, analysis, judgment and next work plan, etc. In addition, the Guidelines also require the Provincial Bureau to promptly update the SAMR on the implementation of interviews and tracking of interview results.
Article 25 (1) of the Regulation stipulates that prior approval must obtained from the principal person in charge of the anti-monopoly law enforcement agency before the interview; and if necessary, the relevant superior authority of the interviewee shall be invited to jointly conduct the interview. On this basis, the Guidelines add two pre-interview obligations for the anti-monopoly law enforcement agencies, namely formulating an interview plan and serving an enforcement interview notice to the interviewees. Meanwhile, the anti-monopoly law enforcement agencies may require the interviewees to prepare written materials for the interviews.
Article 25 (2) of the Regulation stipulates that the anti-monopoly law enforcement agency can make the interview public and invite the media, industry associations, experts and scholars, relevant undertakings, and public representatives to attend the interview. According to the Guidelines, these invitees can not only attend the interview but can even provide reference opinions.
In addition to the above-mentioned supplementary provisions to Articles 24 and 25 of the Regulation, the Guidelines also add new provisions. For example, it provides that more than two persons with law enforcement qualifications should be arranged to participate in the interview; the interview should produce an enforcement interview record, and in principle, the interview should use equipment such as law enforcement recorders, voice recorders, and cameras to record the entire interview process. Furthermore, Article 14 of the Guidelines stipulates that the interview should be conducted by the following procedures:1. The host verifies the identities of all parties involved in the interview;2. The interviewer explains the reason, purpose and legal basis of the interview, points out the suspected illegal issues, and requires the interviewee to propose improvement measures;3. The interviewee explains the relevant situation, analyzes the reasons, and proposes improvement measures;4. The interviewer puts forward opinions and requests;5. The interviewee expresses its opinions and requirements;6. The interviewer and the interviewee shall sign or seal the interview record after confirming it.
In conclusion, the promulgation of the Guidelines helps anti-monopoly law enforcement agencies implement the Interview Measure more effectively and formally and helps potential interviewees understand the Interview Measure and supervise its implementation.