Recently, with the consent of the State Council, the State Administration for Market Regulation, the National Development and Reform Commission, the Ministry of Finance, the Ministry of Commerce and the Ministry of Justice issued the Detailed Rules for the Implementation of the Fair Competition Review System (Regulation [2021] No. 2 of the State and Municipal Supervision Regulations, hereinafter referred to as the Implementation Rules). In order to better implement the Detailed Implementing Rules, they are hereby interpreted as follows:
I. What is the background and significance of the revision?
The implementation of the fair competition review system is a major policy decision and deployment made by the Cpc Central Committee and the State Council. Since the establishment and implementation of the system in 2016, under the overall coordination and supervision of the inter-ministerial joint conference on fair competition review, and with the joint efforts of various regions and departments, the fair competition review work has achieved positive results, achieving full coverage of the national, provincial, municipal and county governments, cleaning up 1.89 million various policy measure documents involving the economic activities of market entities, and revising and abolishing nearly 30,000 documents It reviewed 857,000 newly issued policies and measures, found and corrected more than 4,100 policy measures that violated the review standards, effectively cleaned up and abolished various regulations and practices that hindered the unified national market and fair competition, effectively standardized government behavior, maintained fair competition in the market, and greatly stimulated the entrepreneurial and innovative vitality of market players. At the same time, there are still problems in the implementation of the system, such as unbalanced work promotion, rigid constraints to be strengthened, and overall quality to be improved, and it is urgent to revise the implementation rules, improve the system system, improve the review mechanism, seek more innovations and achieve greater breakthroughs in review methods, review standards, supervision means, etc., and promote the in-depth implementation of the system with higher quality and greater strength.
First, the Party Central Committee and the State Council have put forward higher requirements for the implementation of the fair competition review system. The Fourth Plenary Session of the Nineteenth Central Committee of the Communist Party of China emphasized "the implementation of the fair competition review system"; the Fifth Plenary Session of the Nineteenth Central Committee of the Communist Party of China clearly proposed to "improve the fair competition review mechanism"; the "Fourteenth Five-Year Plan" plan and the outline of the long-term goals for 2035 make special arrangements for strengthening the basic position of competition policy, requiring overall planning to do a good job in incremental review and stock clearance, strengthening the rigid constraints of the fair competition review system, improving the rules for fair competition review, and continuously cleaning up and abolishing the regulations and practices that hinder the unified market and fair competition. The "Opinions on Accelerating the Improvement of the Socialist Market Economic System in the New Era", the "Action Plan for Building a High-Standard Market System", the "Regulations on Optimizing the Business Environment" and other major policies and major reform plans put forward specific requirements for the implementation of the fair competition review system, urgently requiring the revision of the implementation rules, further strengthening the implementation of competition policies, implementing the fair competition review system, breaking down local protection and regional barriers, promoting the smooth flow of resource elements throughout the country, so that the advantages of the super-large-scale market can be fully utilized. Help accelerate the construction of a new development pattern and promote high-quality development.
The second is the practical need to further promote the implementation of the fair competition review system. During the "Thirteenth Five-Year Plan" period, under the strong leadership of the Party Central Committee, the inter-ministerial joint conference on fair competition review work earnestly performed the duties of overall planning, coordination, supervision and guidance, took the initiative to play a leading role in grasping the overall situation, and made every effort to promote the implementation of the fair competition review system, the system achieved "transformation" from scratch, the basic framework was initially formed, and the implementation of the system achieved phased results. In the practice of the system, all regions and departments have explored and summarized a series of valuable experiences and effective practices that can be learned from and copied. However, compared with the requirements of the Party Central Committee and the State Council and the expectations of society, the Detailed Implementing Rules (Provisional) still have problems such as the scope of review is not clear enough, the review standards are not detailed enough, the operability of the exception provisions is not strong, and the rigid constraints of the system are insufficient, and it is urgent to upgrade good experience and good practices into system requirements through revision, and take effective measures in a timely manner to solve the outstanding problems that exist, so that the fair competition review system can really play a role and achieve practical results.
The third is to take the initiative to promote high-level opening up. Implementing a high level of opening up to the outside world and building a new system of a higher level of open economy is a strategic consideration for building a new advantage in national competition. Further strengthening the basic position of competition policy, implementing a fair competition review system, maintaining a unified large national market and fair competition, building a market-oriented and law-based international business environment, and promoting trade and investment liberalization and facilitation are of great significance to China's implementation of a wider range, wider field, and deeper opening up to the outside world. In order to comprehensively improve the level of opening up to the outside world and deepen international exchanges and cooperation in the field of competition, the State Administration for Market Regulation, together with relevant departments, has taken the initiative to revise the implementation rules, strengthen the docking with international competition rules, effectively regulate and protect fair competition, optimize the domestic competition environment, and provide strong support for in-depth participation in international competition and the maintenance of the rules-based multilateral trading system.
Second, what are the basic principles of the revision?
The revision focuses on the construction of a high-standard market system of "unified openness, orderly competition, complete system, and perfect governance", focuses on strengthening the rigid constraints of the system, and systematically revises the detailed rules. The following principles are mainly adhered to:
The first is to implement the central requirements. Based on the new development stage, implement the new development concept, focus on building a new development pattern and promoting high-quality development, in accordance with the requirements of the Party Central Committee and the State Council to "strengthen the basic position of competition policy, implement the fair competition review system, and improve the review mechanism", optimize the top-level design, and build a system with comprehensive coverage, complete rules, clear rights and responsibilities, efficient operation, and strong supervision.
The second is to follow the higher-level regulations. Strictly follow the clear institutional framework and basic rules of the Opinions of the State Council on Establishing a Fair Competition Review System in the Construction of the Market System (Guo Fa [2016] No. 34, hereinafter referred to as Guo Fa No. 34 Document), and further refine and improve the relevant provisions. At the same time, we will pay attention to connecting with existing laws and regulations such as the Anti-Monopoly Law, the Regulations on Optimizing the Business Environment, and the Interim Regulations on Major Administrative Decision-making Procedures and the provisions of the State Council.
The third is to strengthen rigid constraints. Focus on the outstanding problems in the implementation of the system, such as the lack of active work promotion, the low quality of review, and the lack of supervision and assessment, take the strengthening of the rigid constraints of the system as the main line of revision, and continuously improve the quality and effectiveness of the review and effectively enhance the authority and efficiency of the system by improving the rules, optimizing the mechanism, strengthening supervision, and strengthening the guarantee.
The fourth is to dock with international rules. Fully absorb and learn from the mature experience of relevant foreign systems and the latest development achievements, actively dock with international rules, and strive to build a fair competition review system that conforms to the stage and characteristics of China's economic development, better serve high-level opening up, and promote high-quality development.
III. What are the main contents of the revision?
The Detailed Implementing Rules consist of 7 chapters and 31 articles, which are divided into general provisions, review mechanisms and procedures, review standards, exceptions, third-party assessment, supervision and accountability, and supplementary provisions. Compared with the Detailed Implementing Rules (Provisional) (Chapter 6, Article 26), 21 articles have been amended, 2 articles have been retained, and 8 articles have been added. Key revisions include:
(1) General Provisions. The first is to further clarify that the purpose of formulating the "Detailed Implementing Rules" is to fully implement the fair competition review system and improve the fair competition review mechanism; the second is to strengthen the functions and roles of the inter-ministerial joint meeting, local people's governments at all levels and the joint meeting, and to clarify that in principle, the responsible comrades of the people's governments at the same level will serve as the convener of local joint meetings at all levels, and establish a triage mechanism for major measures; the third is to include other policy documents and specific policy measures in the form of "one matter, one discussion" into the scope of review, enhance the operability of the system, and ensure that the review is carried out effectively.
(2) Review mechanisms and procedures. The first is to conscientiously sum up the practical experience of various regions and departments, consolidate and enhance the results of the review work, and continue to promote the construction of a fair competition review system; the second is to optimize the review method, clarify that the policy-making organs should establish and improve the internal review mechanism for fair competition, and promote unified review within the policy-making organs; the third is to standardize the basic process of review, clarify the conclusions of the review, and improve the procedures for soliciting the opinions of interested parties; the fourth is to increase the content of the establishment of a fair competition review expert database to facilitate the policy-making organs to carry out consultation The fifth is to improve the dispute coordination mechanism, optimize the fair competition review information submission, situation notification and other working mechanisms, and further improve the regular assessment and clearance mechanism.
(3) Review standards. The examination standards are the core of the Detailed Implementing Rules, and this chapter focuses on improving and refining the content and expression of the examination standards. The first is market access and exit criteria. Standardize the expression of some articles, supplement some manifestations of "setting unreasonable or discriminatory conditions for access and withdrawal", and further remove obstacles to market access and withdrawal. The second is the standard for the free flow of goods and factors. Enrich and refine the review standards, improve some clauses that exclude and restrict bidding and bidding, and smooth the flow of commodities and factors. The third is to affect the production and operation cost standards. Standardize and improve provisions such as giving preferential policies to specific business operators and providing or withholding various types of security deposits, so as to ensure that all types of market entities have equal access to production factors. The fourth is to affect the standards of production and operation behavior. Refine some of the content and forms of expression, and make a good connection with the relevant provisions of the Anti-Monopoly Law. Fifth, adhere to the national chess game, make it clear that there is no basis for laws, administrative regulations or State Council regulations, must not set unequal market access withdrawal conditions, must not illegally give preferential policies to specific business operators, etc., further break the "regional small market, small cycle", and effectively safeguard the national unified large market.
(4) Exceptions. Coordinate development and security, combined with the current domestic and international situation, add "scientific and technological security" and "public health and health security" to the exception provisions, support innovation-driven development, and safeguard the safety of people's lives.
(5) Third-party assessment. Provisions are made in the form of a special chapter on the third-party assessment of fair competition review, and are well connected with the Guidelines for the Implementation of Third-Party Assessment of Fair Competition Review. Clarify the stages and links of introducing third-party assessments, refine the specific circumstances of giving priority to the introduction of third-party assessments, and make provisions on the use of third-party assessment results and funding guarantees.
(6) Supervision and pursuit of responsibility. First, in view of the outstanding problems existing in the implementation of the system, further improve the rule mechanism and strengthen supervision and safeguards. The second is to improve the mechanism for handling reports and pursuing responsibility, increase the channels for reporting, clarify the circumstances of pursuing responsibility for violations of review standards, and make a good connection with the way violations of the Anti-Monopoly Law are handled. The third is to establish a regular spot check mechanism for policy measures, and clarify the departments that organize spot checks, the content of spot checks, and the results of spot checks. The fourth is to strengthen the fair competition review and assessment mechanism and enhance the authority and efficiency of the system.
(7) Supplementary Provisions. Encourage all regions and departments to actively explore and innovate measures and methods conducive to the implementation of the fair competition review system, and at the same time abolish the Detailed Rules for the Implementation of the Fair Competition Review System (Provisional) (Fa Jie Jie Jian [2017] No. 1849).
In addition, some of the contents of the detailed rules that are irrational in logical structure and unclear expression have been adjusted, and the fair competition review form has been simplified to enhance the operability and predictability of the system.
4. What are the highlights of the revised Detailed Implementing Rules?
The revised Detailed Implementing Rules mainly reflect three major highlights:
(1) Greater overall planning. Resolutely implement the decision-making and deployment of the Party Central Committee and the State Council, strengthen the functions and roles of inter-ministerial joint meetings, local people's governments at all levels, and joint meetings, make it clear that local people's governments at or above the county level are responsible for establishing and improving the system of joint meetings for fair competition review work in their respective regions, make overall plans, coordinate, supervise and guide the fair competition review work in their respective regions, and in principle, the responsible comrades in charge of the people's governments at the same level will serve as the convener of the joint meeting. Establish an active review mechanism for the Office of the Joint Conference, improve the efficiency of reviewing policies and measures, and promote the implementation of the system with greater efforts and more practical measures.
(2) Higher review standards. Keep a close eye on the blockages that are not in place in the decision-making and deployment and the pain points reflected by enterprises, comprehensively refine the review standards, focus on the problems that hinder equality and convenience in withdrawing from the market, specify transactions in disguise in the form of rewards and compensation, implement local protection, and affect the equal use of production factors, and other problems that enterprises react strongly, and include specific situations such as compulsory enterprise transfer of technology, compulsory establishment of branches in the local area, preferential policies for specific enterprises, and the establishment of unreasonable project database qualification databases into the review standards, and further improve the basic rules such as the scope of review and exceptions. We should make up for the gaps and loopholes in the rules in a timely manner, solidly tighten the cage of the system, and earnestly enhance the systematicness and pertinence of the review system.
(3) Supervision and assessment are stricter. Give full play to the incentive and restraining role of supervision and spot checks, make it clear that the State Administration for Market Regulation is responsible for taking the lead in organizing spot checks of policies and measures, and conducting key spot checks on industries and regions where market entities have strong reactions, problems are more concentrated, and abuses of administrative power to eliminate frequent acts of restricting competition. All localities should establish a spot check mechanism for policies and measures in their own regions in light of actual conditions. Local people's governments at or above the county level should establish and improve a fair competition review and appraisal system, so as to attach equal importance to discovering problems and promoting solutions, and ensure that all requirements are implemented in place.
V. What are the work arrangements for the implementation of the Detailed Implementing Rules in the next step?
The newly revised Detailed Implementing Rules are a concrete embodiment of the implementation of the spirit of the Fifth Plenary Session of the Nineteenth Central Committee of the Communist Party of China, and have important guiding significance for the comprehensive implementation of the fair competition review system. In the next step, the State Administration for Market Regulation will work with relevant departments to do a good job in the "four strengthenings" and earnestly grasp the implementation of the "Detailed Implementing Rules".
(1) Strengthen publicity and interpretation. Through media reports, organizational training, and other means, strengthen the publicity and interpretation of the "Detailed Implementing Rules", so that all regions and departments can understand and grasp the main contents of the revision as soon as possible, implement the new requirements for improving the system system, improving the review mechanism, pursuing responsibility, organizational leadership, etc., give full play to the guiding role of the "Detailed Implementing Rules", and promote the in-depth implementation of the fair competition review system.
(2) Strengthen overall planning and organization. The inter-ministerial joint conference on fair competition review work will make overall plans to organize the implementation of the "Detailed Implementing Rules", and through methods such as carrying out special supervision, supervise and guide local people's governments at or above the county level to establish and improve the system of joint meetings for fair competition review work in their respective regions as soon as possible in accordance with the new requirements of the "Detailed Implementing Rules", and coordinate and supervise and guide the fair competition review work in their respective regions.
(3) Strengthen oversight and accountability. In accordance with the provisions of Guo Fa No. 34 document and the "Detailed Implementing Rules", strictly pursue responsibility, supervise and rectify those who fail to implement the fair competition review system, seriously deal with problems in work and cause adverse consequences in accordance with laws and regulations, and promptly disclose relevant handling decisions to the public in accordance with law, giving play to the warning and education role of typical cases.
(4) Strengthen anti-monopoly law enforcement. Combine the review of fair competition in advance with the anti-monopoly law enforcement of the abuse of administrative power to eliminate or restrict competition afterwards, do a good job of "combining fists" to safeguard the national unified market and fair competition, promptly investigate and deal with acts of abusing administrative power to eliminate or restrict competition in accordance with the law, break down local protection and regional barriers, smooth the domestic cycle, and promote the construction of a unified national market.