The Research On The Threshold Standard For Declaration Of Undertakings Concertration In Assets Acquisition

Since the Anti-Monopoly Law has been enacted for only a few years, the concept of "concentration of undertakings" and its standard remain to be clarified. Article 20 of the law incorporates the "control" into the concept of "concentration of undertakings". The definition of "control" once appeared in the Regulation on the Declaration of Undertakings Concentration (Requirement for Comments) but was deleted in the final draft. So the author will compare the threshold standard of concentration in assets acquisition around the world and come to the following conclusions: Firstly, China shall set out the threshold standard that combines the size-of-parties test and the size-of-transaction test, and weaken the concept of "control". Secondly, the acquired assets shall be divided into operating assets and non-operating assets according to the independency, the purpose of acquisition and the influence on the market share. Besides, since Article 20 of the Anti-Monopoly Law has set forth the "acquire the control power over other undertakings" as the premise of the concentration of undertakings, the concentration which meets the size-of-transaction test shall be deemed as the acquisition of control as a legal fiction in case that no amendment is made to the Anti-Monopoly Law. If an acquisition meets the standard, the undertakings are obligated for declaration of concentration and may not argue that no control power is acquired. Last but not lease, since it is rather difficult for undertakings to judge if they meet the threshold standard of concentration declaration due to the vagueness of legal concept, the pre-declaration consultation process shall be further improved.