CPI Asia Column edited by Vanessa Yanhua Zhang (Global Economics Group) present:
Global Antitrust Institute’s Comment on NDRC Gains and Fines –By Global Antitrust Institute (George Mason University)
This comment is submitted in response to the National Development and Reform Commission (NDRC) of the People’s Republic of China’s public consultation on the Proposed Revisions to the Guidelines of the Anti-Monopoly Commission of the State Council on Determining the Illegal Gains Generated from Monopoly Conduct and on Setting Fines (Draft Guidelines). We submit this comment based upon our extensive experience and expertise in antitrust law and economics.1
We commend the NDRC for inviting comments on its recently released Draft Guidelines, and for endeavoring to improve transparency and enhance legal certainty with regard to the application of anti-monopoly administrative penalties.
We respectfully recommend that the Draft Guidelines be revised to limit the application of disgorgement (or the confiscating of illegal gain) and punitive fines to matters in which: (1) the antitrust violation is clear (i.e., if measured at the time the conduct is undertaken, and based on existing laws, rules, and regulations, a reasonable party should expect that the conduct at issue would likely be found to be illegal) and without any plausible efficiency justifications; (2) it is feasible to articulate and calculate the harm caused by the violation; (3) the measure of harm calculated is th
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