Chinese Antitrust Law

Statutory Framework

China’s competition law regime is anchored in the Antimonopoly Law (AML), promulgated on 30 August 2007 and effective from 1 August 2008. A comprehensive revision took effect on 1 August 2022, introducing significant institutional and substantive changes. The AML regulates monopoly agreements, abuse of dominance, merger control, and abuse of administrative powers to eliminate or restrict competition. The principal enforcement authority is the State Administration for Market Regulation (SAMR) , which since 2018 has consolidated the competition enforcement functions previously distributed among the Ministry of Commerce (MOFCOM), the National Development and Reform Commission (NDRC), and the State Administration for Industry and Commerce (SAIC). SAMR’s Anti-Monopoly Bureau exercises both investigative and merger review functions.

Monopoly Agreements: Articles 13–16

Horizontal monopoly agreements (Article 13) are prohibited per se where they involve price fixing, output limitation, market allocation, restriction of new technology, or joint boycotting. Vertical monopoly agreements (Article 14) prohibit resale price maintenance (RPM), both minimum and maximum, though the 2022 revision introduced a safe harbor mechanism: vertical agreements are presumed lawful if the parties’ market share in each relevant market does not exceed 15% for vertical agreements (and 25% for horizontal non-cartel agreements under Article 13(1)(2)–(5)). The safe harbor does not apply to hard-core cartels (price fixing, output limitation, market allocation, or bid rigging). Article 15 provides an individual exemption for agreements that achieve specified efficiency or public interest objectives.

Abuse of Dominance: Articles 17–19

Article 17 prohibits abuse of a dominant position through an exhaustive list of practices: selling at unfairly high prices or buying at unfairly low prices, selling below cost, refusal to deal, exclusive dealing, tying, discriminatory treatment, and other abuses determined by SAMR. Dominance is assessed by reference to market share (presumption at 50% for a single undertaking, 66.7% for two, 75% for three), competitive conditions, and barriers to entry. The 2022 revision clarified that data and algorithms may be considered in dominance assessments and that platforms may not use their market power to engage in data-related abuses.

Merger Control: Articles 20–25

Merger control under the AML requires mandatory premerger notification for transactions where the parties’ worldwide turnover exceeds RMB 10 billion (approximately €1.3 billion) or domestic turnover exceeds RMB 2 billion in the preceding financial year (with additional sector-specific thresholds). SAMR conducts Phase I (30 days) and Phase II (90 days, extendable to 180 days) reviews. The 2022 revision introduced a stop-the-clock mechanism allowing SAMR to suspend review periods while parties supply information. SAMR has imposed conditional approval with behavioral or structural remedies in high-profile cases, including Coca-Cola/Huiyuan (2009, prohibition), Marubeni/Gavilon (2012, conditions), NXP/Freescale (2015, conditions), and Bytedance/Moonton (2021).

Abuse of Administrative Powers

Chapter V of the AML prohibits government agencies and organizations from engaging in conduct that eliminates or restricts competition: designating specific undertakings for trading, blocking cross-regional trade, imposing discriminatory treatment on non-local undertakings, compelling undertakings to engage in monopoly conduct, or issuing regulations that restrict competition. Enforcement against administrative monopolization relies on the “superior agency” mechanism: SAMR may propose corrective action to the offending agency’s superior authority. The 2022 revision strengthened this regime by empowering SAMR to issue formal recommendations and by requiring agencies to publish corrective measures.

The 2022 Revisions

The 2022 amendments represent the most substantial reform of Chinese antitrust law. Beyond the safe harbor for vertical agreements, key changes include: increased maximum fines for monopoly agreements from 10% to 20% of annual turnover for serious cases and up to RMB 5 million for individuals; introduction of personal liability for legal representatives and directly responsible personnel; expansion of the extra-territorial application of the AML; recognition of fair competition review as a statutory mechanism for evaluating the competitive impact of government policies; and codification of antitrust—IP interface rules, including treatment of standard-essential patents (SEPs) and injunctive relief.

Private Enforcement

Private antitrust litigation is conducted in Chinese courts under the AML Article 50, the Supreme People’s Court’s Provisions on Several Issues Concerning the Application of Law in Civil Disputes Arising from Monopolistic Conduct (2012, revised 2024), and the SPC’s Qihoo 360 v. Tencent guidance (2014), which established the substantially lessening competition standard for abuse of dominance. The Supreme People’s Court established specialized intellectual property tribunals (in Beijing, Shanghai, and Guangzhou) with appellate jurisdiction over antitrust cases. The 2022 AML revision introduced a follow-on damage action framework, allowing findings in SAMR decisions to constitute prima facie evidence of infringement.