Provisions on Prohibiting the Acts of Eliminating or Restricting Competition by Abuse of Administrative Power

Provisions on Prohibiting the Acts of Eliminating or Restricting Competition by Abuse of Administrative Power

Order of the State Administration for Market Regulation
(No. 64)

March 10, 2023

Provisions on Prohibiting the Acts of Eliminating or Restricting Competition by Abuse of Administrative Power

Article 1 These Provisions are developed according to the Anti-monopoly Law of the People's Republic of China (hereinafter referred to as “Anti-monopoly Law”) for the purposes of preventing and curbing the acts of eliminating and restricting competition by abuse of administrative power.

Article 2 The State Administration for Market Regulation (“SAMR”) shall be responsible for the unified anti-monopoly law enforcement work against the acts of eliminating and restricting competition by abuse of administrative power.

The SAMR shall, according to the provisions of paragraph 2 of Article 13 of the Anti-monopoly Law, authorize the market regulation departments of the people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government (hereinafter referred to as the “market regulation departments at the provincial level”) to be responsible for the anti-monopoly law enforcement work against the acts of eliminating and restricting competition by abuse of administrative power within their respective administrative regions.

For the purposes of these Provisions, anti-monopoly law enforcement institutions include the SAMR and market regulation departments at the provincial level.

Article 3 The SAMR shall be responsible for investigating the following acts of eliminating and restricting competition by abuse of administrative power, and offering recommendation on handling according to the law (hereinafter referred to as “investigation and handling”):

(1) Acts that have influence across the country.

(2) Acts that are implemented by the people's governments at the provincial level.

(3) The case facts are relatively complicated or the SAMR deems that it is necessary to conduct direct investigation and handling.

For the acts of eliminating and restricting competition by abuse of administrative power listed in the preceding paragraph, the SAMR may designate market regulation departments at the provincial level to investigate and handle them.

In the investigation into and handling of acts of eliminating and restricting competition by abuse of administrative power, the market regulation departments at the provincial level finding that the acts do not fall under their scope of investigation and handling or the acts fall under their scope of investigation and handling but need to be investigated and handled by the SAMR, shall report to the SAMR in a timely manner.

Article 4 Administrative authorities and organizations authorized by laws and regulations to manage public affairs shall not abuse administrative power to conduct the following acts to restrict directly or in a disguised form any entity or individual to dealing in, purchasing or using the goods or services (collectively, “goods”) provided by their designated operators:

(1) Restricting directly or in a disguised form any entity or individual to dealing in, purchasing or using goods provided by specific operators, by expressly requesting, implying, denying or delaying an administrative approval or recordation, conducting repetitive examination, disapproving access to platforms or networks, and other means.

(2) Restricting directly or in a disguised form any entity or individual to dealing in, purchasing or using goods provided by specific operators, by restricting bidders' location, ownership form, organizational form, and other means.

(3) Restricting directly or in a disguised form any entity or individual to dealing in, purchasing or using goods provided by specific operators, by setting unreasonable project libraries, directory database, alternative database, qualification database, and other means.

(4) Other acts of restricting or restricting in a disguised form any entity or individual to dealing in, purchasing or using goods provided by operators designated thereby.

Article 5 Administrative authorities and organizations authorized by laws and regulations to manage public affairs shall not abuse administrative power to eliminate or restrict competition by entering into cooperation agreements, memoranda and other means with operators to obstruct other operators from entering relevant markets or imposing unequal treatment on other operators.

Article 6 Administrative authorities and organizations authorized by laws and regulations to manage public affairs shall not abuse administrative power to conduct the following acts to obstruct free circulation of goods between regions:

(1) Setting discriminatory fee items or implementing discriminatory fee rates for goods in other places, or prescribing discriminatory prices or implementing discriminatory subsidy policies.

(2) Obstructing and restricting goods in other places from entering into the local market by prescribing technical requirements and inspection standards for goods in other places that are different from those for goods of the same type in local regions, or taking repetitive examination, repetitive authentication and other discriminatory technical measures for goods in other places.

(3) Obstructing or restricting goods in other places from entering into the local market by adopting administrative licensing for goods in other places or setting different licensing conditions, procedures, and time limit, among others, when imposing administrative licensing upon goods in other places.

(4) Obstructing or restricting goods in other places from entering or local goods from being transported out by setting up barriers, setting up shielding via software or Internet, and other means.

(5) Other acts of obstructing free circulation of goods between regions.

Article 7 Administrative authorities and organizations authorized by laws and regulations to manage public affairs shall not abuse administrative power to conduct the following acts to exclude or restrict operators from participating in tendering and bidding and other business operation activities:

(1) Failing to issue tendering and bidding and other information according to the law.

(2) Excluding or restricting operators in other places from participating in local specific tendering and bidding and other business operation activities.

(3) Setting discriminatory qualification requirements or examination and review standards.

(4) Setting qualifications, technology or business conditions not commensurate with the actual needs or irrelevant to the performance of contract.

(5) Other acts of excluding or restricting operators from participating in tender......