China News Service, November 18th. According to the website of the State Administration for Market Regulation, in order to encourage companies to cultivate a compliance culture of fair competition, guide companies to establish and strengthen overseas antitrust compliance management systems, and enhance their awareness of antitrust compliance management for overseas operations. To improve the level of anti-monopoly compliance management for overseas operations, prevent overseas anti-monopoly legal risks, and ensure the sustainable and healthy development of enterprises, the State Administration of Market Supervision has formulated the "Guidelines for Overseas Anti-monopoly Compliance for Enterprises."
The full text is as follows:
Guidelines on Overseas Anti-monopoly Compliance for Enterprises
Chapter One General Provisions
And basis for the first item
In order to encourage companies to cultivate a compliance culture of fair competition, guide companies to establish and strengthen overseas anti-monopoly compliance management systems, enhance their awareness of anti-monopoly compliance management for overseas operations, improve the level of anti-monopoly compliance management of overseas operations, and prevent overseas anti-monopoly laws Risks, to ensure the sustainable and healthy development of the enterprise, according to the actual work, formulate this guideline.
Article 2 The importance of antitrust compliance
Anti-monopoly law is an important policy tool for market economy countries to regulate their economy. The formulation and implementation of anti-monopoly law is a common practice in most countries or regions in the world (hereinafter referred to as jurisdictions) to protect fair market competition and maintain market competition order.
Different jurisdictions have different expressions of anti-monopoly law, such as "anti-monopoly law", "competition law", "antitrust law", "fair trading law", etc. These guidelines are collectively referred to as anti-monopoly law below.
Enterprises operating overseas shall adhere to integrity and law-abiding and fair competition.
Companies that violate the anti-monopoly law may face high fines, fines, damages, and other legal liabilities, and the relevant person in charge of the company may also face serious consequences such as fines, fines and even criminal liabilities.
Strengthening the construction of overseas anti-monopoly compliance can help companies identify, evaluate, and manage various anti-monopoly legal risks.
Article 3 Scope of Application
These guidelines apply to Chinese companies that are engaged in business operations abroad and Chinese companies that are engaged in business operations in China but may have an impact on overseas markets, including those involved in import and export trade, overseas investment, mergers and acquisitions, intellectual property transfer or licensing, bidding, etc. Overseas business activities.
The anti-monopoly laws of most jurisdictions provide for extraterritorial jurisdiction systems, and their anti-monopoly laws are also applicable to monopolistic behaviors that occur outside the jurisdiction but have an impact on the market within the jurisdiction that exclude or restrict competition.
Chapter II Overseas Anti-Monopoly Compliance Management System
Article 4 Establish an overseas anti-monopoly compliance management system
Companies can formulate overseas antitrust compliance systems based on business scale, major jurisdictions involved in the business, industry characteristics and market conditions, legal risks faced by business operations, etc., or embed overseas antitrust compliance requirements into existing overall compliance System.
Some jurisdictions have put forward specific guidelines for companies to establish and improve anti-monopoly compliance systems, and companies can use this as a basis to formulate corresponding anti-monopoly compliance systems.
The establishment and effective implementation of a good compliance system by companies in some jurisdictions can be used as a basis for mitigating anti-monopoly penalties.
Article 5 Overseas Anti-Monopoly Compliance Management Agency
Encourage enterprises, especially large enterprises, to set up overseas anti-monopoly compliance management departments or positions, or to rely on existing compliance management systems to carry out special overseas anti-monopoly compliance management work.
Anti-monopoly compliance management departments and compliance management personnel may perform corresponding duties in accordance with the "Guidelines for Operators' Anti-Monopoly Compliance" issued by the Anti-Monopoly Commission of the State Council.
Enterprises can conduct regular evaluations of the overseas anti-monopoly compliance management system, which can be implemented by the anti-monopoly compliance management department or commissioned by an external professional organization to assist in the implementation.
Article 6 Overseas Anti-monopoly Compliance Management Responsibilities
Overseas antitrust compliance management responsibilities mainly include the following aspects:
(1) Continue to pay attention to the development of anti-monopoly legislation, law enforcement and justice in the jurisdictions involved in the business of the enterprise, and provide timely anti-monopoly compliance advice to decision-makers, senior management and business departments;
(2) In accordance with the requirements of the jurisdictions involved, formulate and update corporate anti-monopoly compliance policies, clarify internal anti-monopoly compliance requirements and procedures, supervise all departments to implement them, and ensure that compliance requirements are integrated into various business areas;
(3) Review and evaluate the compliance of corporate competition behavior and business operations, stop and correct non-compliant business behaviors in a timely manner, and formulate countermeasures against potential non-compliant behaviors;
(4) Organizing or assisting business, personnel and other departments to carry out overseas anti-monopoly compliance training, and providing overseas anti-monopoly compliance consulting to business departments and employees;
(5) Establishing an overseas anti-monopoly compliance reporting system, organizing and carrying out internal anti-monopoly compliance inspections of the enterprise, and making recommendations to the management for handling the discovered compliance risks;
(6) Properly respond to anti-monopoly compliance risk events, and organize the formulation of response and rectification measures for potential or existing anti-monopoly investigations or lawsuits;
(7) Other work related to the enterprise's overseas anti-monopoly compliance.
Article 7 Overseas Anti-monopoly Compliance Commitment Mechanism
Encourage enterprises to establish overseas anti-monopoly compliance commitment mechanisms.
Enterprise decision-makers, senior managers and business personnel engaged in overseas operations can make anti-monopoly compliance commitments.
The establishment of an anti-monopoly compliance commitment mechanism can increase the awareness and importance of relevant personnel on the risks of anti-monopoly laws and ensure that they are responsible for the company's compliance commitments.
Under normal circumstances, the commitment and participation of corporate decision makers and relevant senior management personnel in antitrust compliance is the key to improving the effectiveness of the compliance system.
Chapter III Key Points of Overseas Antitrust Compliance Risks
Article 8 The main actions involved in anti-monopoly
The types of behaviors adjusted by the anti-monopoly laws of various jurisdictions are similar, mainly regulating monopoly agreements, abuse of market dominance, and concentration of operators that have or may have the influence of eliminating or restricting competition.
Different jurisdictions have different definitions, specific types and evaluation methods of relevant behaviors. This chapter briefly explains this. The specific compliance requirements shall be subject to the relevant provisions of the antitrust laws of each jurisdiction.
At the same time, companies should pay attention to special regulatory situations that may not be covered in this chapter according to the circumstances of the relevant jurisdictions. For example, some jurisdictions prohibit the abuse of comparative advantages, prohibit concurrent directorships among competitors, and other arrangements, and regulate administrative monopolies.
Article 9 Monopoly Agreement
Monopoly agreements generally refer to agreements concluded between enterprises to eliminate or restrict competition or coordinated actions taken. They are also called "cartels", "competition restriction agreements", "unfair transaction restrictions", etc. They mainly include fixed prices and restrictions. Horizontal monopoly agreements such as production or market segmentation, boycott transactions, and vertical monopoly agreements such as resale price maintenance, limiting sales areas and customers, or exclusive arrangements.
The antitrust laws of some jurisdictions also prohibit the exchange of competitively sensitive information such as prices, costs, and market plans. In some cases, passively receiving competitively sensitive information cannot be a reason for exemption from punishment.
Horizontal monopoly agreements, especially price-related horizontal monopoly agreements, are usually regarded as very serious acts of restricting competition, and all jurisdictions strictly regulate this.
Most jurisdictions also regulate vertical monopoly agreements. For example, resale price maintenance (RPM) may have a greater risk of illegality.
The form of monopoly agreements is not limited to written agreements signed between enterprises, but also includes oral agreements and concerted behaviors.
The evaluation factors of monopoly agreements are more complicated, and companies can make evaluations and judgments in accordance with the specific regulations, guidelines, judicial precedents and enforcement practices of each jurisdiction.
For example, some jurisdictions may apply the principle of illegality or reasonableness to the evaluation of monopoly agreements, and some jurisdictions may consider whether the purpose constitutes an illegal purpose or requires an effect analysis.
The application of behavior that is itself illegal or purpose is usually presumed to be inherently harmful and restricting competition. When applying the principle of reasonableness and effect analysis, a comprehensive analysis of the effect of related behaviors to promote and harm competition will be carried out.
Some jurisdictions have industry exemptions, block exemptions and safe harbor systems for monopolistic agreements. Enterprises can refer to relevant regulations when analyzing and evaluating.
In addition, most jurisdictions stipulate that associations must not organize enterprises to engage in monopoly agreements, and enterprises will not be exempt from punishment due to monopoly agreements organized by associations.
Article 10 Abuse of market dominance
Market dominance generally refers to a position where an enterprise can control a certain relevant market, but is no longer subject to effective competition constraints in that market.
Generally speaking, judging whether it has a dominant market position requires comprehensive consideration of business scale, market share and other relevant factors, such as competition constraints from competitors, customer negotiation capabilities, and market entry barriers.
Under normal circumstances, unless there is evidence to the contrary, a low market share will not be deemed to have a dominant market position.
It is not illegal for an enterprise to have a dominant market position. Only abuse of a dominant market position constitutes an illegality.
Abuse of a dominant market position means that an enterprise with a dominant market position uses the position to eliminate or restrict competition without justifiable reasons. It generally includes unfairly high or low prices in sales or procurement activities, sales below cost, and additional non-compliance. Reasonable or unfair transaction terms and conditions, exclusive or restricted transactions, refusal to deal, tying, discriminatory treatment, etc.
When judging whether there is an abuse of a dominant market position, an enterprise may, in accordance with the regulations of the relevant jurisdiction, present possible legitimate reasons and relevant evidence.
Article 11 Concentration of Operators
Concentration of business operators generally refers to enterprise mergers, acquisitions, joint ventures, etc., which are called merger control in some jurisdictions.
Concentration of undertakings is not illegal in itself, but those that have or may have the effect of eliminating or restricting competition may be prohibited or approved with restrictive conditions.
Different jurisdictions have different standards for judging whether a concentration is constituted and whether it should be declared.
Some jurisdictions mainly examine the lasting changes in the control of operators. Obtaining individual or joint control of other operators through transactions constitutes concentration, and at the same time sets reporting standards based on turnover; some jurisdictions set transaction scales and assets of counterparties Multiple indicators such as revenue and turnover are used to determine whether the reporting standards are met; in some jurisdictions, whether or not the concentration will have a substantial restrictive effect on competition in the jurisdiction, the market share is mainly used as the preliminary judgment standard for whether to declare or encourage notification.
In addition, whether the establishment of a joint venture constitutes a concentration of operators in different jurisdictions is also different, and it needs to be analyzed in detail according to relevant regulations.
Most jurisdictions require that a concentration that meets the prescribed standards must be reported to the anti-monopoly law enforcement agency before implementation, otherwise it shall not be implemented; some jurisdictions have determined different notification time points according to the type of concentration, the size of the enterprise and the size of the transaction; some jurisdictions adopt Voluntary reporting system; some jurisdictions require enterprises to declare no later than a certain period after the centralized implementation; some jurisdictions can investigate transactions that do not meet the reporting standards under certain circumstances.
For jurisdictions that adopt compulsory pre-declaration, undeclared or unauthorized implementation of the concentration of business operators usually constitutes an illegal act and may have serious legal consequences, such as fines, suspension of transactions, restoration of the original status, etc.; voluntary declaration or post-declaration is adopted For example, the anti-monopoly law enforcement agencies can require companies to suspend transactions, restore the original status, and impose restrictive conditions.
Article 12 Methods of Overseas Anti-Monopoly Investigation
Anti-monopoly law enforcement agencies in most jurisdictions have strong and extensive investigative powers.
Generally speaking, anti-monopoly law enforcement agencies can conduct investigations based on reports, complaints, leniency applications from illegal companies, or ex officio.
Investigation methods include collecting relevant information, copying documents, questioning the parties and other related parties (such as competitors and customers), on-site investigations, and taking compulsory measures.
Some jurisdictions can also carry out "dawn raids", that is, sudden on-site searches of necessary places related to the implementation of suspected monopolistic activities or related to investigations without prior notice to the company.
During the dawn raid, the enterprise shall not refuse entry of investigators who hold a search warrant, search authorization, or decision.
Investigators can inspect search warrants, search authorizations, or all items within the scope of the decision, can consult and copy documents, and temporarily seal up relevant places and inquire employees according to the needs of the inspection.
In addition, in some jurisdictions, anti-monopoly law enforcement agencies can cooperate with border management agencies to detain and investigate entering employees of the enterprise under investigation.
Article 13 Cooperating with overseas anti-monopoly investigations
All jurisdictions have relevant regulations for cooperation in anti-monopoly investigations and litigation and evidence preservation. Generally, relevant parties are not required to refuse to provide relevant materials or information, provide false or misleading information, conceal or destroy evidence, conduct other obstructive investigations and litigation procedures, and Acts that bring about unfavorable consequences stipulate corresponding legal responsibilities for acts that do not cooperate with investigations.
Some jurisdictions stipulate that providing false or misleading information may face a fine of up to 1% of the group's global turnover in the previous fiscal year, and it can also require daily payments up to the group's global average daily turnover in the previous fiscal year 5% late fee; if it is finally determined that there is an illegal act, the refusal to cooperate may become a factor that aggravates the fine.
Some jurisdictions stipulate that refusing to cooperate in an investigation may be sentenced to contempt of the court or obstruction of justice, and fines. In serious cases, it may even be sentenced to criminal responsibility, such as deliberately obstructing the investigation by providing major misrepresentations to investigators. .
Under normal circumstances, the degree of cooperation of companies in anti-monopoly investigations is one of the important considerations when law enforcement agencies make penalties and leniency decisions.
According to the needs of the enterprise, the legal department, external lawyers, and information technology department can formulate in advance plans for on-site inspections and plans for cooperating with investigations.
When facing anti-monopoly investigations and lawsuits, companies can formulate employee travel guidelines to ensure that employees can comply with corporate compliance policies and protect their legal rights in the event of customs interrogations and searches during their travels.
Article 14 The rights of enterprises in overseas anti-monopoly investigations
Most jurisdictions make clear requirements on the procedures for anti-monopoly law enforcement agencies to conduct investigations to protect the legal rights of the enterprises under investigation.
When conducting investigations, anti-monopoly law enforcement agencies shall follow statutory procedures and issue relevant supporting documents, such as identity certificates of law enforcement agencies or search warrants approved by the court.
The enterprise under investigation shall have the right to make statements, explanations and defenses in accordance with the law, and the anti-monopoly law enforcement agency shall keep confidential the information obtained during the investigation process in accordance with the law.
In overseas anti-monopoly investigations, companies can safeguard their legitimate rights and interests in accordance with the regulations of the relevant jurisdictions, such as making statements and defenses on relevant matters, requiring investigators to show their credentials, and asking law enforcement agencies about the legal rights enjoyed by the company, on the basis of confidentiality. Check some investigation documents of law enforcement agencies; hire a lawyer to be there. In some jurisdictions, the subject of investigation has the right to remain silent before the lawyer arrives.
Some jurisdictions have exceptions for documents protected by the privileges of lawyers' clients. Enterprises can claim the privileges of lawyers' clients on relevant documents when submitting documents to prevent law enforcement officers from taking away privileged materials that they do not have the right to access.
Some jurisdictions stipulate that the opinions of the enterprise or industry association under investigation should be listened to, and they should have the opportunity to submit a defense on the objection.
Regardless of the legal or factual circumstances, if the subject under investigation does not have the opportunity to express their views, they cannot be used as the basis for a case decision.
Article 15 Overseas Anti-Monopoly Litigation
Companies may also face antitrust lawsuits abroad.
Anti-monopoly lawsuits can be initiated by law enforcement agencies or civil entities.
For example, in some jurisdictions, law enforcement agencies can file criminal and civil lawsuits in the courts; direct purchasers and indirect purchasers can also file lawsuits in the courts, and these lawsuits may also be filed in the form of class actions.
In some jurisdictions, anti-monopoly litigation includes appeals to decisions of anti-monopoly law enforcement agencies, as well as damages litigation filed by the injured subject, an application for an injunction to stop monopolistic behavior, or the contract contains restrictive clauses that violate competition laws. A lawsuit for invalidity of the contract brought by the contract.
Anti-monopoly litigation in different jurisdictions involves complicated procedures and time-consuming; some jurisdictions may involve a very wide range of evidence discovery.
Once an enterprise loses in an overseas antitrust lawsuit, it will face serious adverse consequences such as huge fines or compensation, an order to change its business model, and even criminal liability.
Article 16 Dealing with overseas anti-monopoly risks
Enterprises can establish mechanisms for responding to and mitigating the risks of overseas anti-monopoly laws.
When a major overseas anti-monopoly legal risk occurs, you can immediately notify legal personnel, anti-monopoly compliance managers, and heads of relevant business departments to conduct internal joint investigations, discover and promptly terminate non-compliance, and formulate internal response procedures and litigation or defense plan.
Some jurisdictions have an exemption application system. Under certain conditions, companies can apply to the anti-monopoly law enforcement agencies in advance for related behaviors that may harm the effect of competition but also improve efficiency, consumer welfare, or fairness. Exemption application.
After obtaining approval, the relevant actions of the enterprise will not be investigated by the anti-monopoly law enforcement agency or found to be illegal.
Companies can evaluate how to use the exemption application according to the actual situation in their jurisdiction to prevent antitrust legal risks in advance.
Enterprises can hire external lawyers, legal or economic experts, and other professional institutions to assist them in dealing with anti-monopoly legal risks, and strive for the results of internal investigations to be protected by lawyers’ client privileges where applicable.
Article 17 Possible remedial measures
When overseas anti-monopoly legal risks arise or after overseas anti-monopoly legal risks occur, companies can take corresponding measures in accordance with the regulations and actual conditions of the relevant jurisdictions, including the use of leniency systems, commitment systems, and reconciliation procedures in the anti-monopoly laws of relevant jurisdictions. , To minimize risks and negative impacts.
The leniency system generally refers to the system by which the anti-monopoly law enforcement agency mitigates or exempts the punishments for companies that actively report the actions of monopoly agreements and provide important evidence.
For example, in some jurisdictions, the leniency system may reduce fines and exempt criminal liability for applicants; in some jurisdictions, the first enterprise to apply for leniency may be exempted from all fines, and subsequent applicants may be exempted from partial fines.
The application of the leniency system usually requires the enterprise to recognize its participation in the relevant monopoly agreement, which may become unfavorable evidence to the enterprise in subsequent civil litigation, and at the same time requires the enterprise to assume a higher obligation to cooperate in the investigation.
Commitment system generally refers to companies that actively promise to stop or abandon the alleged monopolistic behavior during the anti-monopoly investigation process, and take specific measures to eliminate the adverse effects on competition. The anti-monopoly law enforcement agency suspends the investigation and accepts the promise after evaluation. Decide.
For companies, the commitment decision will not recognize that the company has violated the law and will not impose a fine; however, if the company fails to comply with its commitment in the future, it may face the adverse consequences of restarting the investigation and fines.
The reconciliation system generally refers to the rapid settlement of the case by the enterprise in the process of anti-monopoly investigation with law enforcement agencies or private plaintiffs.
In some jurisdictions, companies involved in the case need to proactively admit their illegal activities in participating in the monopoly agreement in order to obtain up to 10% of additional fines reduction.
In some jurisdictions, settlement includes reaching a civil settlement agreement with law enforcement agencies or private plaintiffs in civil cases, or reaching a criminal plea agreement with law enforcement agencies in criminal cases.
Civil settlements usually include a binding agreement to mediate, which includes a promise to correct the accused's conduct that harms competition.
Law enforcement agencies may also require the party under investigation to return illegal gains obtained through acts that harm competition.
The agreement to the mediation letter also requires the company to regularly report on compliance with its commitments.
Failure to comply with the consent mediation agreement may result in fines and re-investigation.
In criminal procedures, companies can reach guilty pleas with law enforcement agencies to reduce fines and settle cases more quickly; companies can comprehensively consider possible fines reduction, efficiency, litigation costs, certainty, probability of success, and subsequent civil litigation Factors such as influence determine whether to reach a plea agreement.
Article 18 Anti-monopoly Legal Liability
Monopolistic behavior may lead to relevant enterprises and individuals being held accountable for administrative, civil and criminal liabilities.
Administrative responsibilities mainly include imposing prohibitions, fines, and splitting enterprises.
Prohibition orders generally prohibit the continued implementation of monopolistic activities, and also include requirements for corrective measures, regular reports, and the establishment and implementation of an effective compliance system.
Most jurisdictions impose large fines on monopolistic behavior, and some jurisdictions impose a fine of up to 10% of the group's global turnover in the previous year.
Civil liability mainly includes confirmation of the invalidity of the monopoly agreement and compensation for damages.
Some jurisdictions stipulate that the losses caused by monopolistic activities should be fully compensated, including actual losses and loss of profits, plus the interest from the date of the damage to the payment of the compensation; some jurisdictions stipulate that the enterprise shall be liable for up to three times the damages Liability and related litigation costs.
Some jurisdictions also stipulate criminal liability. Individuals such as senior executives and directly responsible persons involved in monopolistic activities may face fines or even imprisonment. The fines for corporate offenders are as high as 100 million U.S. dollars, and individual criminal fines are as high as 1 million U.S. dollars. The maximum imprisonment period is 10 years.
If the illegal gains or the victim's economic losses exceed 100 million U.S. dollars, the company's maximum fine can be twice the illegal gains or economic losses.
Some jurisdictions stipulate that if the parent company can exert a “decisive influence” on the subsidiary and the overseas subsidiary violates the antitrust law, the parent company may be jointly and severally liable.
At the same time, the basis for calculating related fines is adjusted to the turnover of the entire group.
In addition to legal responsibilities, anti-monopoly investigations or lawsuits may also have other major adverse effects that may cause great risks to the company's overseas business activities.
Anti-monopoly law enforcement agencies’ investigations or anti-monopoly litigation may consume a lot of time for the company, incur high legal costs, distract attention from core business activities, and affect the normal operation of the company.
If the investigation or litigation produces adverse consequences, the financial status and reputation of the company will be greatly damaged.
Chapter 4 Overseas Antitrust Compliance Risk Management
Article 19 Identification of overseas anti-monopoly risks
Companies can identify major antitrust risks faced by companies based on factors such as the scale of overseas business, the characteristics of the industry in which they operate, market conditions, anti-monopoly laws and regulations in relevant jurisdictions, and the law enforcement environment.
(1) Risks that may be related to the monopoly agreement.
Most jurisdictions prohibit companies from entering into and implementing monopoly agreements with other companies and exchanging competitively sensitive information.
When an enterprise conducts business overseas, it should pay close attention to the following behaviors that may generate risks related to monopoly agreements: First, risks related to contact with competitors.
For example, contacts between employees of enterprises and employees of competitors in industry associations, conferences and other occasions; frequent turnover of personnel between competing enterprises; exchange of sensitive information through the same supplier or customer, etc.
The second is the risks associated with contracts, equity or other cooperation between competitors.
For example, reaching a partnership or cooperation agreement with a competitor may eliminate or restrict competition.
The third is the risks associated with certain types of agreements or behaviors in daily business activities.
For example, signing agreements with customers or suppliers that contain exclusive terms; restrictions on customers' resale prices, etc.
(2) Risks that may be related to abuse of market dominance.
Enterprises should evaluate and judge the market engaged in business activities, major competitors and their own market forces, and use this as a basis to evaluate and standardize business operations.
When an enterprise has a high market share in a certain market, it should pay attention to whether the commercial purpose of its market behavior is to restrict competition, whether the behavior has an adverse effect on competition, and avoid the risk of abuse of its dominant market position.
(3) Risks that may be related to the concentration of undertakings.
Most jurisdictions have a centralized reporting system. When companies carry out mergers, acquisitions, and joint ventures on a global scale, the same transaction (including transactions that occur within China) may need to be filed in multiple jurisdictions.
Before conducting relevant transactions, enterprises should fully understand the reporting requirements of various relevant jurisdictions, make full use of the pre-negotiation mechanism of overseas anti-monopoly law enforcement agencies, evaluate reporting obligations and report in a timely manner in accordance with the law.
Enterprises acquiring overseas target companies should also pay special attention to whether the target company is involved in anti-monopoly legal liabilities or is undergoing anti-monopoly investigations, and assess whether the legal liabilities may be attached to the parent company or the buyer after the acquisition.
Article 20 Overseas Anti-Monopoly Risk Assessment
Companies can establish overseas anti-monopoly legal risk assessment procedures and standards based on actual conditions, regularly analyze and evaluate the source of overseas anti-monopoly legal risks, possibility of occurrence, and severity of consequences, etc., to clarify risk levels, and design according to different risk levels And implement the corresponding risk prevention and control system.
The evaluation can be organized and implemented by the enterprise's anti-monopoly compliance management department or commissioned by an external professional organization to assist in the implementation.
Encourage companies to conduct special assessments on the following situations: (1) Before making investment decisions on business acquisitions, company mergers, and establishing new joint ventures; (2) Before implementing major marketing plans and signing major supply and marketing agreements; (3) Subject to overseas opposition After monopoly investigation or litigation.
Article 21 Risk Rating of Enterprise Employees
Companies carry out risk ratings based on different levels of risks faced by employees in overseas anti-monopoly laws, and conduct more effective risk prevention and control.
For senior managers, managers of business departments, personnel who frequently interact with competitors in the same industry, personnel in sales, marketing and purchasing departments, personnel who know sensitive information such as corporate business plans, prices, etc., have worked and worked in competitive companies. Those who know sensitive information, those who are responsible for corporate M&A projects, etc.; companies can prioritize risk management and take measures to strengthen their awareness of antitrust compliance.
For other personnel, companies can take appropriate measures for antitrust risk management based on the priority of risk management.
Article 22 Overseas Anti-Monopoly Compliance Report
企业可以建立境外反垄断合规报告机制。反垄断合规管理部门可以定期向企业决策层和高级管理层汇报境外反垄断合规管理情况。当发生重大境外反垄断风险时，反垄断合规管理机构应当及时向企业决策层和高级管理层汇报，组织内部调查，提出风险评估意见和风险应对措施；同时，企业可以通过境外企业和对外投资联络服务平台等渠道向商务部、市场监管总局等政府部门和驻外使领馆报告。
第二十三条 境外反垄断合规咨询
企业可以建立反垄断合规咨询机制。由于境外反垄断合规的高度复杂性，鼓励企业及员工尽早向反垄断合规管理部门咨询经营中遇到境外反垄断合规问题。企业反垄断合规管理部门可根据需要聘请外部律师或专家协助开展合规咨询，也可在相关司法辖区法律法规允许的情况下，在开展相关行为前向有关反垄断执法机构进行合规咨询。
第二十四条 境外反垄断合规审核
企业可以建立境外反垄断合规审核机制。反垄断合规管理部门可以对企业在境外实施的战略性决定、商业合同、交易计划、经销协议模板、销售渠道管理政策等进行反垄断合规审核。反垄断合规管理部门可以根据需要聘请外部律师协助评估反垄断法律风险，提出审核意见。
第二十五条 境外反垄断合规培训
企业可以对境外管理人员和员工进行定期反垄断合规培训。反垄断合规培训可以包括相关司法辖区反垄断法律法规、反垄断法律风险、可能导致反垄断法律风险的行为、日常合规行为准则、反垄断调查和诉讼的配合、反垄断宽大制度、承诺制度、和解制度、企业的反垄断合规政策和体系等相关内容。
企业可以定期审阅、更新反垄断合规培训内容；也可以通过员工行为准则、核查清单、反垄断合规手册等方式向员工提供书面指导。
第二十六条 其他防范反垄断风险的具体措施
除本章第十九条至第二十五条规定之外，企业还可以采取以下措施，防范境外反垄断风险。
(一)在加入行业协会之前，对行业协会目标和运营情况进行尽职调查，特别是会籍条款是否可能用来排除限制竞争，该协会是否有反垄断合规制度等。保存并更新所参加的行业协会活动及相关员工的清单。
(2) Understand the topics before participating in meetings organized by industry associations or attended by competitors, and arrange anti-monopoly legal counsel to attend meetings and conduct anti-monopoly compliance reminders as needed; carefully review the meeting agenda and meetings when participating in industry association meetings summary.
(3) Before communicating with competitors, clarify the scope and avoid discussing sensitive topics of competition; record dialogues or other forms of communication with competitors, and report to the superior or the antitrust compliance management department in a timely manner.
(4) For joint ventures and other types of cooperation established with competitors, information firewalls may be set up as needed to avoid reaching or implementing monopoly agreements through joint ventures or other types of cooperation.
(5) If some products or services of an enterprise may have a high market share in the relevant jurisdictions, special training can be provided to the pricing, marketing, and procurement departments, and pre-assessment of possible risky behaviors can be carried out to prevent potential risks in a timely manner.
Chapter V Supplementary Provisions
Article 27 Effectiveness of the Guidelines
This guideline only provides general guidelines for companies' overseas anti-monopoly compliance for companies' reference.
The interpretation of overseas anti-monopoly laws and regulations in the guidelines is mostly principled and general. It is recommended to consult the latest versions of anti-monopoly laws and regulations in relevant jurisdictions when they are specifically applicable.
Companies should combine the specific requirements of various jurisdictions on compliance systems and whether their business activities violate the anti-monopoly law, etc., to build an anti-monopoly compliance system and carry out compliance work in a targeted manner.
For matters not covered by these guidelines, you can refer to the "Guidelines for Business Operators' Anti-Monopoly Compliance" issued by the Anti-Monopoly Commission of the State Council.