On Dec.3^rd,2008,the Coca-Cola company formally submitted an application to the Ministry of Commerce for its acquisition of the juice maker Huiyuan Juice Group, which became the first case after the Anti-Monopoly Law (AML) enacted on Aug. 1^st, 2008.  

With china joining WTO and more openness to the world, the domestic companies in good condition have become the foreign company's targets for acquisition. Especially under the financial crisis circumstances, more and more multinational corporations want to withstand risk by merger and acquisition with such developing country as China. However, since the AML enacted, any concentration referring to merger and acquisition may be examined and verified by the MOC. According to the article 21 of AML, business operators shall declare in advance the concentration reaching the threshold of declaration prescribed by the State Council to the Anti-Monopoly Law Enforcement Agency, and otherwise, they shall not implement the concentration.¹ Moreover, "Provisions on the Reporting Threshold for Concentrations of Business Operators" enacted by State Council set a relatively lower threshold that companies must notify the MOC if all the involved parties had an aggregate global turnover of more than CNY 10bn in the previous fiscal year and at least two of the involved parties had annual turnover more than CNY 400m in China.²

According to Article 27 of the Anti-Monopoly Law, six factors shall be taken into consideration: (i) the market shares of the undertakings participating in the concentration in the relevant market and their ability to control the market; (ii)the degree of market concentration in the relevant market;  (iii) the effect of the proposed concentration on market access and technological progress;  (iv) the effect of the proposed concentration on consumers and other related undertakings;  (v) the effect of the proposed concentration on the development of the national economy;  (vi) other factors affecting market competition as determined by the Anti-Monopoly Law Enforcement Authority under the State Council.³ Among these six factors, (i) and (ii) are more important than others in the examination and verification by the MOC. More specifically to this case, whether cola-cola can win the approval depends on how the MOC make out the definition of "relevant market" in the (i) and (ii). According to the statistics, the marker share of Huiyuan Juice in 2007 is 46% in pure juice market and 39.8% in medium-thick juice market.While Coco-cola has 25.3% of the juice marker share and just ranked as the second after Huiyuan.⁴ If the two brands merge into one, the market share will add up to more than 70%, definitely this will cause huge effect other competitors in mainland market. However, if we take the whole beverage market as "relevant market", the conclusion will be different. But now, while there is no official provision to clear the boundary of "relevant market", this decision at one level looks more like a value judgment than a judge judgment. In my point of view, the former opinion is more reasonable from the eyes of law principle. The aim of AML is to encourage competition, which can make consumer have more choices in the market. In the relevant market the two products should have the substitutability in quality, price, function etc, which can satisfy the similar needs and desires of consumer. Beverage market, including wine, soft drink, mineralwasser etc,is too wide as a relevant market in this case. Because different types of beverage have its own target consumers and they show different preference no matter in the beverage's quality, price or component. Of course it's not that easy for this application, because there are some other factors outside the law needed to be considered, just like the policy of protecting domestic industries.

Article 53 of AML stipulates that,"Where the undertakings and interested parties are dissatisfied with the decisions made by the Anti-Monopoly Law Enforcement Authority according to Article 28 and Article 29 of this Law, they may apply for an administrative review; if they object to the result of the administrative review, they may institute administrative proceedings according to law."⁵ So another key point is that, if MOC disapprove the application and coca-cola institutes an administrative proceeding, or MOC approve the application but the third party directly brings a law suit about that, who shall bear the burden of proof that whether the acquisition will result in eliminating or restricting competition? That who bear burden of proof may determine the result of this suit, as the evidences of this case is difficult to get and the party shall bear the legal consequences for incapability to adduce evidence for the facts. Based on the principle of "He who is affirming must prove", it seems that the complaint of the suit should take the responsibility.But that may create injustice that MOC will forever be a defendant, which means it never bear the burden of proof. I think the rule in this topic should be different from the general rule so as to guarantee a balance.

In that case,according to the rules above, this case will have a clear decision in 180 days at the latest. Under the AML, decisions are usually made in 30 days after application submitted to MOC. If the MOC thinks that further investigation is required, the investigation can be extended to 90 days. If the decision is too complicated to make, MOC can get the final extension period of 60 days.⁶

As the first case of Anti-Monopoly Law, the decision is of great importance.This decision will create a clear precedent, and also show the official attitude about that as well. As a result, both domestic and foreign companies should pay more attention to this case.