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Ministry of Commerce of 2012 No. 49 on additional restrictive conditions on the approval of the Wal-Mart Stores Inc. acquired 33.6% stake in New Haven holding operators to focus on anti-monopoly review of the decision notice.
[Issued by] the Ministry of Commerce of the People's Republic of China
[Release number] Notice 2012 No. 49
【Date】 2012-08-13
Ministry of Commerce of the People's Republic of China (hereinafter referred to as the Commerce Department) received a Wal-Mart's acquisition of New Haven Holdings Limited (hereinafter referred to as the New Haven Holdings) 33.6% stake in the business who focus on antitrust declaration. Upon review, the Commerce Department decided to attach restrictive conditions of approval that the concentration of business operators. According to the Article of the "anti-monopoly law" of the People's Republic of China (hereinafter referred to as "the Antimonopoly Law"), now announced as follows:
First, the filing and review procedures
December 16, 2011, the Commerce Department received a Wal-Mart acquired a 33.6 percent stake in New Haven Holdings Declaration of Business Concentration. Audited, the Commerce Department that the filing of documents, the documents are incomplete, asking for a report to be supplementary. February 16, 2012, the Commerce Department confirmed by supplementary declaration documents, information in line with the requirements of Article 23 of the AML, centralized declaration for the operators to be placed on file and start the preliminary examination.
After preliminary examination, the Commerce Department that the focus on China's B2C online retail market may have to exclude or restrict competition. This case to enter further review of the extended phase. March 16, 2012, the Commerce Department decided to focus on the further review. June 13, 2012, by the notifying parties agreed that the Commerce Department decided to extend further review period.
Review process, the Commerce Department to seek the views of relevant government departments, industry associations and related businesses to understand the definition of relevant market and industry characteristics and future development trends, information, and to declare the documents submitted by the authenticity of the information, complete and accuracy of the audit.
Second, the competitive analysis
According to Article 27 of the AML, the Commerce Department will focus on the operators a comprehensive assessment, in-depth analysis of the operators to focus on the impact of competition on the market that they may have the effect of the exclusion of restricting competition.
November 24, 2011, Wal-Mart Stores Inc. and its wholly-owned subsidiary of GEC PTE. LTD (hereinafter referred to as GEC 2) and the Selling Shareholders of the New Haven Holdings, New Haven holding China Ping An Insurance Overseas (Holdings) Co., Ltd., United States natural person Mr. Yu Gang, Australia Mr. Liu Junling of natural persons, New Haven is a wholly owned subsidiary Kong Ling Co., Ltd. (hereinafter referred to as the new Kong Ling, Hong Kong) and a wholly owned subsidiary of Hong Kong, the new Kong Ling New Haven Information Technology (Shanghai) Co., Ltd. (hereinafter referred to New Haven Shanghai), and Elka International Electronic Commerce Limited (Elka) and its selling shareholders Shenzhen Ping An Innovation Company signed a Share Purchase Agreement "(hereinafter referred to as the Protocol).
Under the agreement, Wal-Mart Stores Inc. through its wholly owned subsidiary of GEC on the New Haven holding stake from 17.7% to 51.3%. New Haven Holdings will be held through a wholly-owned subsidiary of Kong Ling, Hong Kong and Shanghai, New Haven benefits online shopping platform "shop" (hereinafter referred to Elka more than 1 shop) of online sales. After the completion of the transaction, Wal-Mart Stores Inc. will become the controlling shareholder of the New Haven Holdings, and obtain control of the direct selling business Elka shop online through the New Haven Holdings.
Wal-Mart is the main competitor of the global and Chinese supermarket chains, its competitive advantage in the procurement, warehousing, product line, the store network, service and logistics, and brand business entities supermarket. Elka more than 1 shop is currently China's biggest online supermarket, with thousands of suppliers, hundreds of brand partners. Sales of goods involved in the ten categories of food and beverage, beauty care, kitchen and bathroom cleaning, electrical, etc., for a total of over one hundred thousand kinds of products. Elka on the 1st multi-store business scope includes online sales and value-added telecommunications business. According to the bilateral business scope, business model and characteristics, demand and supply substitution factors, the Commerce Department that the B2C online retail market for the relevant product market. At the same time, taking into account the spending habits, transport, customs and other factors, the relevant geographic market for the Chinese market.
The survey showed that online retail is involved in numerous aspects of the payment, warehousing, distribution, marketing, network platforms, logistics and service is the key factor restricting the development of online retailers. Wal-Mart entities in the Chinese retail market with a mature warehousing and distribution systems, a wide range of delivery channels and higher brand awareness. Upon completion of the transaction, Wal-Mart to its competitive advantage in the physical market, transfer to the Elka more than 1 shop online retail business. Focus on the combined effect would be substantially enhanced post-merger entity to compete in the online retail industry strength. To this end, the Commerce Department, the case may be involved in value-added telecom services market in China an extension of the investigation. The survey results show that post-merger entities, such as through of Elka multi shop into the value-added telecom services market will have the ability to rely on the existing physical retail market and the competitive advantage of the online retail business to the rapid expansion of business, to obtain a dominant position in the value-added telecom services market substantive enhance its bargaining power users of the network platform, the value-added telecom services market in China may have to exclude or restrict competition.
Third, additional restrictive conditions on talks
During the period under review, the Commerce Department to the notifying parties, the focus on competition issues that may arise. July 3, 2012, Wal-Mart submitted to the Ministry of Commerce and the ultimate commitment to resolve the competition issues. After assessment, the Commerce Department, the commitment to reduce the adverse effects of this concentration on competition in the market that may arise.
Four, to review the decision
Upon review, the Commerce Department that the Wal-Mart to obtain control of Elka on the 1st shop online direct sales business through the acquisition of the 33.6 percent stake in New Haven Holdings, may have to exclude or restrict competition. According to Wal-Mart's commitments made to the Commerce Department, Commerce Department decided to additional restrictive conditions on the approval of this focus. Wal-Mart should fulfill the following obligations:
(A) New Haven Shanghai this acquisition, limited to using its own network platform directly engaged in the merchandising section.
(B) In the case of the value-added telecommunications business license, the New Haven Shanghai after the acquisition shall not use its own network platform to provide network services for other parties to the transaction.
(C) after the completion of the transaction, Wal-Mart is not engaged in value-added telecommunications business operated by the Shanghai Elka E-Commerce Co., Ltd. (Elka) through the VIE framework.
The Commerce Department has the right to fulfill that obligation through the supervision of the trustee or the self-supervision and inspection of Wal-Mart. Wal-Mart is not the proper discharge of these obligations, the Commerce Department has the right to handle it in accordance with the relevant provisions of the antitrust laws.
This Notice the effective date of promulgation.
Ministry of Commerce of the People's Republic of China
August 13, 2012
2012-08-14
