On 15 October 2015, the European Commission and the Chinese Ministry of Commerce ("MOFCOM") agreed to Practical Guidance for Cooperation on Reviewing Merger Cases (the "Guidance"), outlining a best practices framework for merger control cooperation between the EU and Chinese authorities.

The Commission and Chinese authorities agreed to a Memorandum of Understanding in 2012 describing potential exchanges of views and experiences with respect to competition and anti-monopoly law (see VBB on Competition Law, Volume 2012, No. 9, available at www.vbb.com). The Memorandum of Understanding also established that, if the Commission and Chinese authorities were to pursue enforcement activities concerning the same or related matters, they may exchange non-confidential information, experiences, and views on the matter and, where appropriate and practicable, directly coordinate their enforcement activities.

The Guidance builds on this cooperation specifically in the context of merger control investigations, setting out that the Commission and MOFCOM have a common interest in cooperation and in the sharing of information regarding investigations.

In particular, the Guidance states that the two sides have a common interest in communication on issues of procedure and substance, as well as on the definition of the relevant market, theory of harm, competitive impact assessment, and the design of remedies. To this end, the two sides may designate liaison officers for requests regarding case cooperation and, where necessary, coordinate information requests to the merging parties and to third parties, including exchanging draft questionnaires.

The Guidance further establishes that where confidentiality waivers have been exchanged for the purposes of a merger review procedure and the two sides communicate information in accordance with those waivers, they will ensure the protection of business secrets and other confidential information. Furthermore, the Guidance makes clear that it does not modify or create enforceable rights, prejudice the Commission's or MOFCOM's decision-making independence, or inhibit their respective discretion on the implementation of the Guidance itself.

The practical effect of the Guidance is that there may be greater cooperation and information exchange in the future between EU and Chinese merger control authorities, particularly with respect to individual cases.  Merging parties would therefore be prudent to develop a coherent strategy for merger control approval that takes into account the exchange of views on substantive issues between EU and Chinese authorities.

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