IES Policy Forum: Decision-Making in Antitrust in Brussels and Beijing

The third lecture of the series dedicated to EU/China cooperation in competition law and policy saw the participation of Mrs. Angela Huyue Zhang, Mr. Chris Bryant, Mr. Torben Toft  and Mr. Dave Anderson.

The discussion focused on the factors which play an influence on competition law decisions, namely the enforcement systems, the structures and competences of the agencies involved in the process and lastly the possibility of political leverage.

In contrast to the position in the EU, Chinese competition law enforcement is fragmented among three different agencies:

The National Development and Reform Commission, the most powerful of the agencies, which is responsible for price related anticompetitive practices and for macroeconomic management and industrial planning more generally;
The State Administration for Industry and Commerce which has jurisdiction over non-price related infringements, administers the enterprises registry and is more generally  responsible for advancing legislation concerning the administration of industry and commerce; and
The Ministry of Commerce, considered the most liberal of the agencies, which assesses merger deals, oversees market development and promotes international trade and investments.
All three agencies are quickly evolving and maturing in their analytical techniques and each is seeking to help drive economic growth in China through the enforcement and application of competition law and policy in China This is similar to the EU where competition law is one of the key tools used to achieve a full functioning internal market.

There have been discussions about the possibility of merging the three Chinese agencies, however the topic remains highly sensitive and no concrete steps in that direction have been taken so far. Nonetheless, interaction between the three agencies, their internal departments or  other State bodies happens often and may influence the outcome of the final decisions. The inter-service consultation activity is not very transparent in either China, or in the EU. However, the EU publishes guidance on its decision making process which helps to improve transparency. Moreover, while in China it appears that judicial review is still far from being effective, the European Court of Justice is able to review Commission decisions. However, the EU Commission is increasingly using settlement decisions and commitments, so in essence avoiding judicial scrutiny.

Attempts to influence the final decisions by exercising political pressure also takes place in Europe. The resolutions adopted by the European Parliament in relation to Google and the tax ruling investigations are clear examples. However, the European Commission has to face the consequences of the European Parliament’s actions as any final decision will be subject to criticism from the parties concerned.