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looking ahead, the china competition law bulletin for 2016–17 has called for a more balanced approach to competition law enforcement. first, the bulletin recommends that the ministry of commerce (mofcom) review its enforcement methods and assess whether they are working to achieve its policy objectives. in particular, the bulletin highlights the need to:
ensure that the proportion of investigations and enforcement actions in the overall enforcement of competition law is reasonable. in particular, the ministry should look at cases where the company concerned has a strong competitive or policy interest and the investigation should not be used as a pretext to achieve a public interest outcome.
ensure that the mofcom’s merger review procedures apply in a consistent manner across the board. this includes ensuring that the mofcom, taking into account the china competition law bulletin’s suggestions, reviews the procedures on a regular basis. in this regard, the mofcom should also consider the potential for additional penalties that could be imposed on companies that fail to conduct a competition investigation or participate in the merger review. this should be done in light of the policy objectives for competition law enforcement, including whether there are any other remedies available.
ensure that enforcement actions are taken on the basis of genuine evidence of illegal conduct. this will be important to ensure that investigations are not abused for politically-motivated reasons. however, this does not mean that only cases supported by strong evidence should be reviewed. in particular, the china competition law bulletin highlights the importance of taking the parties’ interests into account, including the interest of the government.
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