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Announcement No. 25, 2012 of the Ministry of Commerce —Announcement of Approval with Additional Restrictive Conditions of the Acquisition of Motorola Mobility by Google
The Ministry of Commerce of the People’s Republic of China (hereinafter referred to as the Ministry of Commerce) received the anti-monopoly declaration of concentration of undertakings on the acquisition of Motorola Mobility Holdings Inc (hereinafter referred to as Motorola Mobility) by Google Company (hereinafter referred to as Google). In accordance with Article 30 of the Anti-monopoly Law of the People's Republic of China (hereinafter referred to as Anti-monopoly Law), it is hereby announced as follows:

I. Case-filing and review procedures

On September 30, 2011, the Ministry of Commerce received the declaration of concentration of undertakings on the acquisition of Motorola Mobility by Google. The Ministry of Commerce examined the documents and materials for declaration, decided they were not sufficient, and required the declaring party to provide supplementary materials. On November 21, the Ministry of Commerce decided that the supplemented documents and materials complied with the requirements in Article 23 of Anti-monopoly Law. The Ministry of Commerce filed a case on concentration of undertakings and began initial reviews.

After the initial reviews, the Ministry of Commerce decided that the concentration might eliminate or restrict competition in the market of mobile intelligent terminal operating system in China. The case went through an extended further review. On December 21, the Ministry of Commerce decided to further review the concentration. On March 20, 2012, with the consent of the declaring party, the Ministry of Commerce decided to extend the the further review.

In the course of the review, the Ministry of Commerce solicited opinions from relevant government departments, trade associations and downstream enterprises, consulted relevant experts with respect to technical issues and reviewed the authenticity, completeness and accuracy of the documents and materials submitted by the declaring party.

II. Competitive analysis

In accordance with the Anti-monopoly Law and relevant regulations, the Ministry of Commerce reviewed the matters involved in the concentration including relevant market conditions, the Android system being free open-source software, fair treatment by Google for the terminal manufacturers, the mobile patent licensing of Motorola Mobility, and market access, etc. and offered a comprehensive evaluation on the impact of the concentration on competition in the relevant market.

III. Negotiation on the additional restrictive conditions

During the review, the Ministry of Commerce pointed out to Google the competition-eliminating or restricting effect generated from the concentration, and carried out negotiations on how to resolve the said competition issues. On May 15, 2012, Google submitted the final commitment on how to solve the competition issues to the Ministry of Commerce. The Ministry of Commerce, upon evaluation, considered that the commitment could mitigate the adverse impact of the concentration on competition.

IV. Review decision

Upon review, the Ministry of Commerce believes that the acquisition of Motorola Mobility by Google has competition-eliminating or restricting effects. According to Google’s commitments to the Ministry of Commerce, the Ministry of Commerce decides to approve the concentration with additional restrictive conditions. Google shall fulfil the following obligations:

(I) Google will continue its current commercial practice of providing a free and open Android platform.

(II) Google shall treat all original equipment manufacturers non-discriminatorily in terms of the Android platform. This obligation only applies to the original equipment manufacturers who have agreed not to differentiate or derive from the Android platform. This obligation does not apply to Google providing, licensing or distributing of any products or services relating to the Android platform (including but not limited to applications running on the Android platform).

(III) After this transaction, Google shall continue to fulfil the FRAND (fair, reasonable, and non-discriminatory terms) obligations of Motorola Mobility regarding the latter’s patents.

(IV) Pursuant to the Interim Provisions on Implementing the Divestiture of Assets or Business of Concentration of Undertakings (Announcement of the Ministry of Commerce [2010] No. 41), Google shall commission an independent monitoring trustee to supervise Google’s fulfilment of the above-mentioned obligations.

Obligations (I) and (II) shall be in effect for 5 years as of the date this decision is issued. In case of any changes in market conditions or competition, Google may apply to the Ministry of Commerce for changing or removing these two obligations. If and when Google’s control over Motorola Mobility terminates, these two obligations will be removed.

Within the first 5 years from the date the decision is issued, Google shall report to the Ministry of Commerce and the monitoring trustee on its fulfilment of the above-mentioned obligations every 6 months. After 5 years, the Ministry of Commerce may continue to evaluate the conditions of the mobile intelligent terminal operating system market in China and make legal decisions accordingly.

The Ministry of Commerce is entitled to assess Google’s fulfilment of the above-mentioned obligations via the monitoring trustee or by itself. Where Google fails to duly fulfil the above-mentioned obligations, the Ministry of Commerce is entitled to deal with it in accordance with the Anti-monopoly Law.

This announcement shall be effective as of the date of issuing.


Ministry of Commerce of the People’s Republic of China
May 19, 2012


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