CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
information, no Chinese citizens have been extradited for antitrust cases or detained for plea bargaining in other jurisdictions. Since the implementation of the AML in 2008, the largest fine in amount was imposed by the National Development and Reform Commis - sion (the NDRC) on eight Japanese auto parts makers in 2014, for reaching and implementing the price-fixing agreements, with a total fine of CNY831.96 million, which is the largest amount of fine in cartel cases to date. From the perspective of penalty severity, the Guangdong sea sand case saw the highest per - centage-based fine, with the authority imposing the maximum possible fine of 10% of the previ - ous year’s revenue – over 20 companies were found to have formed an alliance to negotiate production fees and fixed sales prices, which resulted in a surge in sea sand prices in the province, and as a result, the Hong Kong Zhu - hai Macau Bridge artificial island project was delayed due to budget over-expenditure. Over the past five years, based on publicly known information, the average total penalty per cartel case was around CNY50 million, though total amounts have varied widely – from as low as about CNY70,000 to over CNY700 million. 5.6 Relevance of Effective Compliance Programmes Under China’s antitrust legal framework, there is no statutory provision requiring the Competition Authorities to consider an undertaking’s “effec - tive compliance programme” when determining sanctions and penalties for cartel infringements. However, the 2024 revised Guidelines on Anti- monopoly Compliance for Undertakings have introduced a compliance incentives mecha -
nism. This allows the Competition Authorities to conduct a substantive review of the target undertakings’ antitrust compliance programme – assessing its completeness, authenticity and effectiveness, and considering the findings as a mitigating factor when evaluating suspension applications, leniency applications, sanctions and penalties. The criteria for this substantive review are com - prehensive, including but not limited to: • whether there is a systematic management system, a full-fledged compliance manage - ment organisation, and a proportionate com - pliance risk management mechanism; • whether the undertaking has strictly imple - mented the compliance programme and truly fulfilled its antitrust commitments; and • whether the undertaking has adopted effec - tive compliance supervision and supporting measures. 5.7 Mandatory Consumer Redress Sanctions imposed through an administrative penalty decision do not include mandatory con - sumer redress. However, consumers affected by cartel infringements may seek compensation by filing a lawsuit in the People’s Court if they have suffered damages. 5.8 Judicial Review or Appeal Article 65 of the AML allows an undertaking who disagrees with the administrative decision made by the Competition Authorities against its cartel infringement to either apply for administrative reconsideration, or to apply for judicial review. According to the Administrative Reconsidera - tion Law and the Administrative Procedure Law, administrative reconsideration can be applied within 60 days from the date of receiving the decision; judicial review can be applied within six
51
CHAMBERS.COM
Powered by FlippingBook