Cartels 2025

CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners

3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency Leniency Regime Competition Authorities may waive or reduce the liabilities for the first undertaking that voluntarily reports the cartel conduct it has participated in or is participating in and that provides essential evidence. Subsequent undertakings that do the same may also receive varying degrees of leni - ency. The leniency regime is generally outlined in Article 56 of the AML, and further detailed in the Guidelines for Application of the Leniency Pro - gramme to Cases Involving Horizontal Monop - olistic Agreements (the “Leniency Guidelines” ) published in 2019. According to rough desktop statistics, among cartel cases, the percentage of cases that involve the application of leniency is relatively low. Qualifications and requirements to obtain leniency Undertakings must apply for leniency before receiving a preliminary notice of administrative penalties. Early reporting of cartel involvement is encouraged, and undertakings can, before filing an official leniency application, engage with the Competition Authorities either anonymously or under their real name. To obtain leniency, the undertaking(s) must provide information and substantial evidence about the cartel conduct not already known to the Competition Authorities. It is important to note that the requirements for the scope of the information and evidence vary for the first and subsequent undertakings. To secure leniency, the undertaking(s) must also meet all of the following requirements:

2.8 Protection of Confidential/Proprietary Information The Competition Authorities are legally obliged to comply with their duty of confidentiality regard - ing trade secrets, personal privacy and personal information (see 2.5 Obtaining Evidence/Testi- mony ). Furthermore, Article 66 of the AML gen - erally stipulates that officers of the Competition Authorities who violate these confidentiality obli - gations shall be disciplined in accordance with relevant regulations. 2.9 Arguments Against Enforcement Actions Throughout a cartel investigation, defence coun - sel can assist the target undertaking in present - ing legal and factual arguments and mounting a reasonable defence. To this end, defence counsel may accompany the target undertaking during interviews conducted by the Competition Authorities, respond to information requests, and even proactively apply for and arrange meetings with the Competition Authorities. Upon receiving the preliminary notice of admin - istrative penalties, defence counsel can help the target undertaking exercise its rights to make statements, defend itself and request a hearing if the target undertaking is dissatisfied with the administrative penalties. After the administrative penalties are finalised and the enforcement decision is issued, defence counsel may assist the target undertaking in seeking administrative reconsideration and/or applying for judicial review (ie, initiating court proceedings against the decision) should it be dissatisfied with the outcome.

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