7. Decision(1)Objection decisionWhere the concentration has or would have the effect of excluding or restricting the competition, the AMB shall make an objection decision. If the undertakings concerned are dissatisfied with the objection, they may first apply for an administrative reconsideration; if it is dissatisfied with the reconsideration decision, they may lodge an administrative lawsuit according to the Administrative Procedure Law of the People''''s Republic of China[13]. In the Examination Rule, the AMB has given the opportunities to the undertakings concerned to provide further statements and defenses for the possible objection decision. If the undertakings concerned can not provide enough evidence to persuade the AMB to change the decision, it appears that it is waste of time to apply for the administrative reconsideration though it is a must before the litigation.
(2)Support decision1) Support decision without attached conditionsWhere the notified concentration is compatible with the Chinese market, the AMB shall ｄｅｃｌａｒｅ the support decision to the undertakings concerned. By the end of October 2009, the AMB has made 63 support decisions without attached conditions, 5 support decisions with attached conditions and 1 objection decision[14], which shows that almost all the notified concentrations shall be appraised by the AMB.
2) Support decision with restrictionsThe AMB has been authorized by the AML that it can attach restrictive conditions to the notified concentration in its support decision. In the Examination Rule, the AMB seems to transfer its work to the undertakings concerned. Article 21 of the Examination Rule stipulates that the undertakings concerned may propose the restrictions on the notified concentration with the aim of eliminating or mitigating the effects of excluding and restricting competition. In this case, the AMB mostly will require the undertakings concerned to propose the restrictions if necessary, on the basis of which, the AMB will review whether the proposed restrictions are acceptable and may change and/or impose the new restrictions. This kind of procedure may reduce the workload of the AMB and will also be welcome by the undertakings concerned since they may have more sayings.
The restrictions imposed on the notified concentration may include:
a. Structural conditions including divestment of partial assets or business of the undertakings concerned;b. Behavioral conditions including granting access to such infrastructures as network or platform, licensing of key technologies (including patents, proprietary techniques or other intellectual property rights) and termination of exclusive agreements by the undertakings concerned; orc. Hybrid conditions that combine structural conditions and behavioral conditions.
The undertakings concerned may also propose the other restrictions which are not listed above. In any case, those proposed restrictions must be able to eliminate or mitigate the effects of excluding and restricting competition and feasible. The submitted document contained the restrictions shall be so plain and explicit that its effect and feasibility can be fully evaluated.
Where the concentration is approved with attached restrictions, the AMB shall supervise the implementation of the restrictions by the undertakings concerned. The undertakings concerned shall report its implementation of such restrictive conditions to the AMB periodically in accordance with the schedule prescribed by the AMB. If any undertaking concerned fails to perform the imposed restrictions, the AMB may order it to make correction within a time limit; and if the undertaking fails to make correction within the prescribed time limit, the AMB may handle the issue in accordance with the relevant provisions of the AML. The time in these issues has not been specified which will also depends on the case and the discretion of the AMB. Mr. Shang gave an example at the Seminar that the support decision with restrictions may require the undertakings concerned to divest their assets in half or one year. Mr. Shang also emphasized that it is the undertakings concerned but not the AMB that will decide which undertakings should the undertakings concerned will divest the assets. The AMB will only list the requirements and the qualifications on those undertakings to buy the divested assets and review thereof if found. But he pointed out that more details need to be clarified, such as the time limits, remedy methods and effect and supervision methods, etc[15].
