【发布单位】中华人民共和国商务部【发布文号】公告2015年第41号【发

【发布单位】中华人民共和国商务部
【发布文号】公告2015年第41号
【发布日期】2015-10-19

中华人民共和国商务部（以下简称商务部）收到西部数据公司（以下简称西部数据）关于解除2012年第9号公告附加的限制性条件的申请。商务部对该申请进行了审查，有关事项公告如下：

一、背景和审查程序

2012年3月2日，商务部发布2012年第9号公告，附条件批准西部数据收购日立存储。2014年3月，西部数据提出解除2012年第9号公告第（一）、（二）项义务的申请。因其当时有两项行为涉嫌违反公告正在被立案调查，该申请未予受理。2015年1月30日，在对西部数据违反公告行为处理完毕后，商务部正式受理并启动了对其申请的评估工作。

评估过程中，商务部先后多次与西部数据会谈，要求其补充证据材料，通过书面及座谈会形式征求了相关政府部门、行业协会和下游企业等方面的意见，委托独立第三方对其申请进行了经济分析评估。依据《反垄断法》、《关于经营者集中附加限制性条件的规定（试行）》以及2012年第9号公告的要求，商务部重点考察了2012年第9号公告的执行情况、市场竞争状况的变化等，综合评估了解除限制性条件的理由和影响。

二、公告执行情况

2012年第9号公告对西部数据、日立公司和Viviti公司附加了六项义务。根据西部数据提交的履行义务情况的报告以及监督受托人的监督报告，在执行期间，西部数据履行各项义务的情况如下：

（一）第（一）项义务。

西部数据有两项行为违反公告规定的义务：一是，2012年3月8日，西部数据将Viviti公司的美国子公司HGST美国公司，转移到西部数据科技公司旗下，成为西部数据科技公司的全资子公司；二是，2013年1月，Viviti/HGST公司发展部门被撤销，有关员工转移到西部数据任职。经立案调查，商务部认为上述两行为违反公告，分别处以30万元人民币罚款，并要求西部数据采取相关措施予以改正。2014年12月，西部数据缴纳了罚款。根据监督受托人提交的监督报告，西部数据按照行政处罚决定书要求采取了整改措施，履行了公告规定的义务。

（二）第（二）项义务。

西部数据和Viviti公司根据市场需求状况合理确定了产能产量，并按月定期向监督受托人进行了报告，履行了公告规定的义务。

（三）第（三）项义务。

西部数据和Viviti公司没有实质性改变此前的商业模式，没有强制或变相强制客户从两公司排他性地采购其硬盘产品，履行了公告规定的义务。

（四）第（四）项义务。

西部数据和Viviti公司在创新领域持续投入资金，研发新产品，降低成本，给客户带来了更多创新性产品和解决方案，履行了公告规定的义务。

（五）第（五）项义务。

审查决定公布后6个月内，西部数据向东芝公司剥离了Viviti公司主要3.5英寸硬盘业务，履行了公告规定的义务。

（六）第（六）项义务。

审查决定公布后，经商务部批准，西部数据委托了独立的监督受托人对其履行义务情况进行监督。监督受托人定期向商务部报告义务履行情况。根据监督报告，除了在履行第（一）项义务过程中出现两项违反公告行为外，西部数据按照2012年第9号公告要求履行了各项义务。

商务部对西部数据履行义务的情况进行了评估。评估认为，西部数据按照2012年第9号公告要求，为履行义务制定了详细的操作方案，根据商务部要求委任监督受托人进行了监督，并充分配合监督受托人工作，定期向监督受托人报告。执行期间，商务部对西部数据两项违反公告行为进行了行政处罚，西部数据按照《行政处罚决定书》的要求缴纳了罚款，并按时采取了整改措施。除此之外，西部数据履行了公告要求的各项义务，商务部未收到关于其违反公告行为的举报。

三、竞争分析

依据《反垄断法》、《关于经营者集中附加限制性条件的规定（试行）》以及2012年第9号公告的要求，商务部重点评估了解除限制性条件对市场竞争状况的影响。

（一）市场竞争状况分析。

1、在便携式应用和企业级应用领域，固态硬盘对传统硬盘的竞争约束增强。调查发现，在便携式应用领域，固态硬盘对传统硬盘的竞争约束比2011年底显著增强；在企业级应用领域也开始形成竞争约束。预计在未来，固态硬盘在该两领域的竞争约束都将继续增强。第一，数据显示，自2012年初公告发布以来，固态硬盘价格下降，出货量增加，其中便携式应用领域和企业级应用领域增长尤为显著。独立第三方分析显示便携式应用领域和企业级应用领域的产品毛利率低于其他领域，侧面证实了固态硬盘对该两领域形成更大的竞争约束。第二，近年来，各主要原始设备生产商在便携式应用领域使用固态硬盘的份额不断增加。截至2014年，苹果固态硬盘使用份额达到60%，联想、戴尔、惠普等在10%到20%之间。各厂商的官方网站显示，大部分笔记本电脑提供固态硬盘作为配置升级选项。第三，各主要固态硬盘生产商在企业级应用领域不断加大高性能高容量企业级硬盘研发力度。行业报告预测，在未来几年间，该领域固态硬盘产能持续增长，市场份额将不断扩大。第四，有关研究机构预测固态硬盘市场呈增长趋势，且增长速度超过各方预期。

2、传统硬盘行业过剩产能增加。调查发现，2011年泰国洪灾后，硬盘企业增加了产能，但市场需求并未显著增加。目前数据显示，各传统硬盘供应商产能利用率约为80%，过剩产能比公告发布前有明显增加。在固态硬盘不断取代传统硬盘的趋势下，传统硬盘供应商的过剩产能会进一步增加。

3、西部数据和日立存储仍然是硬盘市场的重要竞争者，特别是在便携式应用领域实力较强。2012年以来，传统硬盘市场竞争格局变化不大，市场上竞争者仍然是希捷、西部数据、东芝、日立存储和三星硬盘五家。其中，西部数据和日立存储市场实力较强，在整体传统硬盘市场上，两家合并市场份额为47%；在传统便携式应用市场上，两家合并市场份额达到50%。

4、分持义务限制了西部数据和日立存储充分参与竞争。西部数据和日立存储均不能提供全系列产品，由于履行分持义务，不能整合双方的产品系列，也不利于客户采购。同时，西部数据称，解除保持独立限制性条件将会极大地降低生产成本，减少生产、采购方面的重复支出以及间接成本，使其可以更加充分地参与市场竞争。

（二）评估结论。

根据上述市场竞争状况分析，商务部认为：

第一，市场竞争状况分析显示可以考虑解除部分限制性条件：在便携式应用和企业级应用领域，固态硬盘对传统硬盘的竞争约束明显增强；传统硬盘市场过剩产能提高，降低了竞争者单独或共同限制竞争的可能性；上述市场竞争状况的变化，降低了继续维持全部限制性条件的必要性。西部数据和日立存储均不能提供全系列硬盘产品，且生产和研发相互独立，增加了成本，不利于研发，不利于其充分参与竞争，也不利于客户采购。

第二，解除全部限制性条件仍可能对市场产生限制竞争影响：传统硬盘市场竞争格局变化不大，西部数据和日立存储均是市场上的主要竞争者，实力较强；完全解除条件可能降低原始设备制造商在招投标和竞争比价中的议价能力，提高采购成本，并可能最终传导给消费者；固态硬盘的竞争约束，目前还不足以消除完全集中可能产生的限制竞争影响。

综上，解除生产、研发等方面的保持独立义务，继续保持品牌和销售独立，可以使西部数据节省成本，且提供全系列硬盘产品，全面参与竞争，有利于客户采购。同时，在市场上继续保持两个独立的销售团队和两个独立品牌间的竞争，可以减少完全集中可能产生的限制竞争影响。

四、商谈和审查决定

根据上述分析和评估，商务部向西部数据反馈了评估意见。经多轮商谈，西部数据同意继续保持品牌和销售独立，并先后提交了六轮保持品牌和销售独立的具体方案。经评估，商务部认为，西部数据提交的最终解决方案，能够减少对竞争的不利影响。

根据《反垄断法》第29条、第30条，《关于经营者集中附加限制性条件的规定（试行）》第25条、第26条、第27条、第28条，以及2012年第9号公告的要求，商务部同意变更2012年第9号公告所附限制性条件，西部数据应当履行以下义务：

（一）西部数据应当继续保持西部数据和HGST的销售和品牌独立。为保持西部数据和HGST销售和品牌独立，确保双方之间的有效竞争，西部数据承诺采取以下措施：

1、西部数据承诺维持西部数据销售团队，该西部数据销售团队向客户销售西部数据现有或将来品牌项下的硬盘及其他存储产品。

2、西部数据承诺维持HGST销售团队，HGST销售团队向客户销售现有的TRAVELSTAR、ULTRASTAR品牌以及HGST将来可能创设的品牌项下的硬盘及其他存储产品。

3、西部数据销售团队和HGST销售团队可以向客户销售整合后的公司生产的完整系列的存储产品，包括台式电脑、便携式应用、高容量企业级和高性能企业级解决方案所需的产品。

4、西部数据将设立可操作、可核查的流程和程序，确保两个销售团队独立运营，并提供两组不同品牌下的产品。西部数据将在两家销售团队之间建立防火墙，确保双方不会交换竞争性信息。

5、西部数据销售团队和HGST销售团队位于不同的地理位置，且不会于同一处设施进行联合。

6、西部数据承诺维持一名监督西部数据销售团队的副总裁和另一名监督HGST销售团队的副总裁。两名副总裁均将向销售高级副总裁汇报，后者将分别为西部数据和HGST销售团队设定销售目标。在不损害销售和品牌独立的前提下，每名销售副总裁均有权对聘用或解雇其销售团队作出独立的决定，并有权重组其销售团队以应对市场需求或客户需要。

7、西部数据销售团队和HGST销售团队的成员分别接触客户，分别向客户提交业务竞标，并独立决定销售的产品及其价格。

8、西部数据销售团队和HGST销售团队不会就销售促销活动和项目开展合作。

（二）西部数据不得实质性改变此前的商业模式，强制或变相强制客户从该公司排他性地采购其硬盘产品。

（三）西部数据将以近年一贯的速度，继续在创新领域投入研发资金，以确保给客户带来更多创新性产品和解决方案。

西部数据应制定详细的操作方案确保有关承诺的执行，并接受商务部和监督受托人的监督。

上述义务自公告发布之日起2年终止。如果西部数据能够提供充分证据证明市场状况发生显著变化，西部数据可在2年期限届满前向商务部提出解除有关义务的申请。

商务部有权通过监督受托人或自行监督检查西部数据履行上述义务的情况。西部数据未适当履行上述义务，商务部有权顺延上述期限并根据《反垄断法》相关规定作出处理。

本公告自发布之日起生效。2012年第9号公告同时废止。




中华人民共和国商务部
2015年10月19日

ผลลัพธ์ (อังกฤษ) 1:

"Publish" People's Republic of China's Ministry of Commerce"Publication number" announcement in 2015, 41st"Date published" 2015-10-19 People's Republic of China's Ministry of Commerce (MOFCOM) received Western Digital Corporation (hereinafter referred to as the Western data) on disarmament 2012 bulletin 9th additional restrictive conditions apply. Review of the application, the Ministry of Commerce, the notice are as follows: , Background and review procedures On March 2, 2012, the Ministry of Commerce issued bulletin 2012 9th, West of conditional approval data acquisition of Hitachi storage. In March 2014, Western Digital bulletin proposes to terminate in 2012 9th part (a), (b) the obligation applies. When two of its suspected violation notices are being investigation, the application has not been accepted. On January 30, 2015, in the West of the data breach notice behavior when processing is complete, the Ministry of Commerce and launched the official acceptance of the application of the assessment. During the assessment, the Ministry several times for talks with Western Digital, its supplementary evidence, written and seminars have been solicited by relevant government departments, industry associations and enterprises, such as advice, commissioned an independent third party to apply for economic analysis and evaluation. According to the anti-monopoly law, additional restrictive conditions to the concentration requirements (for trial implementation), as well as the 2012 9th, as required by a notice, the Ministry examines the 2012 implementation of bulletin 9th, changes in the market situation and other evaluation of the reason and impact of lifting restrictions. Second, the implementation of the bulletin 2012 9th bulletin on Western Digital, Hitachi and Viviti attached a six obligations. According to Western data submitted compliance reports as well as supervision and oversight report of the trustee, during the implementation period, Western Digital to fulfil its obligations as follows: (A) of subsection (a) obligations. Western Digital has two violation notice obligations: first, on March 8, 2012, Western Digital Viviti the company's United States subsidiary, HGST United States company, moved to Western Digital technology company, become wholly-owned subsidiaries of Western Digital technology company; the second is January 2013, Viviti/HGST Development Department of the company is revoked, the staff concerned transferred to serve on the Western Digital. After investigation, the Ministry believes that the two violation notices, respectively a fine of 300,000 yuan fine, and Western Digital to take relevant measures to correct. In December 2014, Western Digital to pay a fine. Monitoring report under supervision of Trustees, Western Digital took corrective measures required by the written decision of administrative penalty, fulfilled its obligations under the notice. (B) in subclause (ii) obligation. Viviti and Western Digital output of companies reasonably according to market demand to determine capacity and regular monthly trustee reports to the authority, fulfilled its obligations under the notice. (C) in paragraph (c) obligations. Viviti and Western Digital has no substantive change in the business model of the company, there is no force in disguise, forcing customers to buy from two companies exclusively its hard drive products, fulfilled its obligations under the notice. (Iv) (iv) obligation. Western Digital and Viviti companies continued to invest in innovation, develop new products, reduce cost and give customers more innovative products and solutions, fulfilled its obligations under the notice. (E) subparagraph (v) obligations. Review within 6 months after the decision, Western Digital Toshiba shed Viviti mainly 3.5-inch hard drive business, fulfilled its obligations under the notice. (Vi) (vi) the obligation. Review decision is made public, approved by the Ministry of Commerce, Western Digital has commissioned the independent monitoring trustee to monitor its compliance. Supervision of Trustees regular fulfilment of reporting obligations to the Ministry of Commerce. According to the report, except in the performance of (a) obligations during the two acts that violate the notice, but Western Digital by 2012 bulletin 9th for the fulfilment of its obligations. The Commerce Department assessed the fulfilment of conditions in Western Digital. Assessment that Western Digital by 2012 of 9th notice requirements, in order to fulfil obligations developed a detailed action plan, according to the Commerce Department asked to appoint a monitoring trustee to monitor, and to cooperate fully with the monitoring trustee, trustee report to the Superintendent on a regular basis. During execution, the Ministry of Commerce on Western Digital two acts that violate the notice of administrative penalty, Western Digital, in accordance with the requirements of the written decision of administrative penalty to pay a fine and timely corrective measures have been taken. In addition, Western Digital to fulfil the obligations of the notice requirements, the Ministry of Commerce has not received reports of violations of notice. Three, competitive analysis According to the anti-monopoly law, additional restrictive conditions to the concentration requirements (for trial implementation), as well as the 2012 9th, as required by a notice, the Ministry focused on assessing the impact of lifting restrictions on competition in the market. (A) the analysis of market competitive State. 1, in the field of portable applications, and enterprise-class applications, enhanced competition for traditional hard disk SSD constraint. Found in portable applications, solid state drives competitive constraints on the traditional hard disk than the end of 2011, significantly enhanced; competing constraints in enterprise-level applications. Is expected in the future, the solid state drive in the two areas of competitive constraints will continue to increase. First, the data show that since its announcement in early 2012, SSD prices, shipments increased, portable applications, and enterprise-level applications of which growth is particularly significant. Independent third-party analysis of portable applications and enterprise-level application product gross margin lower than other areas, side confirmed the solid state drive in the two areas more competitive constraint. Secondly, in recent years, all major original equipment manufacturers in the field of portable applications using solid state drives share continues to increase. By 2014, the use share to Apple SSD 60%, Lenovo, Dell, HP, etc are between 10% and 20%. The manufacturer's official website, as most notebooks SSD configuration upgrade options. Third, the main SSD manufacturers in the field of enterprise application increasing high capacity with high performance enterprise-class hard drives research and development efforts. Industry report predicted that in the next few years, solid state drive capacity continues to grow in this area, and will continue to expand market share. Finally, relevant research institutions predict SSD market is growing, and growing faster than expected. 2, the traditional hard drive industry overcapacity increase. Survey found that 2011 Thailand after the flood, hard drive manufacturers increased capacity, but market demand does not increase significantly. Current data show that suppliers of traditional hard disk capacity utilization is about 80% and excess capacity have increased than before the announcement. Under the trend of constantly replacing the traditional hard drive solid, traditional hard disk vendor's excess capacity will be further increased. 3, Western Digital and Hitachi storage is still important competitors in the hard drive market, particularly in portable applications more powerful. 2012, the traditional hard drive market changed little, competitors are still in the market are Seagate, Western Digital, Toshiba, Samsung and Hitachi storage hard disk five. Among them, the Western Digital and Hitachi storage market strong, traditional hard drives on the market as a whole, both companies market share was 47%; in conventional portable applications on the market, both companies market share to 50%. 4, an obligation to limit Western Digital and Hitachi storage full participation in the competition. Western Digital and Hitachi storage cannot provide a full range of products, due to the obligation, cannot integrate the two sides of the product, is not conducive to customer purchases. Meanwhile, Western Digital said disarmament remained independent of restrictive conditions will greatly reduce production costs, reduce the duplication of production, procurement spending and indirect costs so that it can more fully participate in the market competition. (B) assessment conclusions. According to the analysis of market competitive State and Commerce Department considers: First, the market competition analysis can be considered lifting some restrictive conditions: in the field of portable applications, and enterprise-class applications, competition for traditional hard disk SSD constraints significantly enhance; improve traditional hard disk market overcapacity, reduce the competitors alone or together, limiting the possibility of these changes in market conditions, reducing the necessity to maintain all the restrictive conditions of. Western Digital and Hitachi storage are unable to provide a full range of hard drives, and production and development independent of each other, increase costs, is not conducive to research and development, is not conducive to their full participation in the competition, is not conducive to customer purchases. Second, lifted all restrictive conditions still may on market produced limit competition effect: traditional hard disk market competition pattern changes is unlikely to, West data and Hitachi storage are is market Shang of main competitors, strength strong; completely lifted conditions may reduced original equipment manufacturer in enrollment bid and competition price in the of bargaining capacity, improve procurement cost, and may eventually conduction to consumers; solid hard disk of competition constraints, currently also insufficient to elimination completely concentrated may produced of limit competition effect. To sum up, lift remained independent obligations on production, research and development, continue to maintain independent brand and sales, Western Digital could save costs, and provides a full range of hard drives, full participation in the competition is beneficial to customers purchasing. Meanwhile, in the market continue to maintain two separate sales teams and competition between two independent brands, exclusively possible restrictive impact can be reduced. Four, to discuss and review decisions Based on the foregoing analysis and assessment, the Ministry of commerce data feedback assessment to the West. After many rounds of negotiations, West agreed to continue to maintain the branding and marketing of data independence, and has had six rounds of brand and marketing separate specific programmes. Upon evaluation of Commerce believes that Western data of the final solution, to reduce adverse impacts on competition. Under the anti-monopoly law of the 29th, 30th, and additional restrictive conditions to the concentration (for trial implementation), 25th, 26th, 27th, 28th, and in 2012 the 9th, as required by a notice, the Ministry agreed to change in 2012 9th restrictive conditions attached to the announcement, Western Digital shall perform the following obligations: (A) should continue to be Western Digital Western Digital, HGST sales and brand independent. In order to maintain independence to Western Digital, HGST sales and brand to ensure effective competition between the two sides, Western Digital is committed to taking the following measures: 1, Western Digital committed to maintaining Western Digital sales team, West of the Western Digital sales team to sell to customers data existing or in the future under the brand of hard drives and other storage products. 2, Western Digital committed to maintaining HGST sales team, HGST sales team to sell to the customers existing TRAVELSTAR and ULTRASTAR brand HGST may create in the future under the brands of hard drives and other storage products. 3, Western Digital sales team and the HGST sales team can sell to customers consolidated company produces a complete line of storage products, including desktop computers, portable, high-capacity enterprise level required for high performance enterprise-class solutions and products. 4, Western Digital will establish operation and verification processes and procedures, ensure that both sales teams operate independently, and provides two sets of products under different brands. Western Digital will build a firewall between two sales team, ensuring that the two sides do not Exchange competitive information. 5, HGST and Western Digital sales team and sales team are located in different geographical locations, and not joint in the same facility. 6, Western Digital committed to maintaining a controller Western Digital sales team Vice President and another monitor HGST, Vice President of the sales team. Two Vice Presidents will report to the Senior Vice President of sales, who will respectively set a sales target for Western Digital, HGST sales team. Without prejudice to the premise of sales and brand independent, each VP of sales are authorized to employ or dismiss its sales team to make an independent decision, and restructure its sales force to respond to market demand and customer needs. 7, Western Digital sales team contact with the HGST sales team members are customers, each bid submitted to the customer business, and independently decides to sell the product and its price. 8, Western Digital sales team and HGST sales team will not cooperate on sales promotions and projects. (B) Western Digital may substantially alter the business model, force in disguise, forcing customers to purchase from the company's exclusive hard drives. (C) the data will be consistent speed in recent years in the West, continued research and development spending on innovation to ensure that give customers more innovative products and solutions. Western Digital should develop a detailed action plan to ensure that the implementation of the commitments and accept the supervision of the Ministry of Commerce and the supervision of Trustees. Above 2 years from the date of termination of obligations since the announcement. If Western Digital can provide sufficient evidence of significant change in market conditions, Western Digital in the 2 years prior to the expiration of discharge of the duties of an application to the Ministry of Commerce. Ministry through the supervision of the trustee or Western Digital to fulfil the above-mentioned obligations of supervision and inspection on their own. Western Digital is not the proper discharge of the obligations, the Ministry can extend the relevant period and in accordance with the relevant provisions of the antitrust laws to deal with. Entry into force from the date of publication of this bulletin. 2012 9th bulletin repealed simultaneously.People's Republic of China's Ministry of CommerceThe October 19, 2015

ผลลัพธ์ (อังกฤษ) 2:

[Unit] People's Republic of China Ministry of Commerce released
[No.] Announcement published in 2015 No. 41
[Date] 2015-10-19 People's Republic of China Ministry of Commerce (hereinafter referred to as the Commerce Department) received Western Digital Corporation (hereinafter referred to as Western Digital ) on disarmament in 2012 Announcement No. 9 additional restrictive conditions apply. Commerce Department conducted a review of the application, the relevant matters are announced as follows: I. Background and examination procedures March 2, 2012, Ministry of Commerce issued Announcement No. 9, 2012, the conditions attached to the approval of Western Digital acquired Hitachi storage. March 2014, Western Digital proposed to lift 2012 Announcement No. 9 (a), apply (b) obligations. Because there were two acts of alleged violations of announcement is being investigation, the application has not been accepted. January 30, 2015, after the announcement of Western behavior dealt with violations of the Ministry of Commerce formally accepted and started the evaluation of their application. The evaluation process, the Ministry of Commerce has repeatedly talks with Western Digital, request additional evidence through written form and seminars consulted relevant government departments, industry associations, and other aspects of downstream enterprises, entrust their application for an independent third party economic analysis and evaluation. Based on "anti-monopoly law," "on operators to focus additional restrictive conditions (Trial)" requirement and the 2012 No. 9 announcement, the Ministry of Commerce to investigate the implementation of the 2012 No. 9 announcement, the market competition The change, a comprehensive assessment of the reasons for the lifting restrictive conditions and influence. Second, the implementation of the announcement Announcement No. 9 in 2012 to Western Digital, Hitachi and Viviti company added six obligations. Western data are based on reports submitted by the fulfillment of obligations and monitoring reports of the trustee, during execution, Western Digital to fulfill its obligations as follows: (a) Paragraph (a) obligations. Western Digital has two violations of the obligations specified in the notice: First, March 8, 2012, Western Digital will Viviti company's US subsidiary HGST American companies, transferred to Western Digital's technology companies, became a wholly Western Digital Technologies owned subsidiary; Second, yes, in January 2013, Viviti / HGST company's development department is revoked, the employee transferred to Western Digital office. After investigation, the Commerce Department announcement that the above-mentioned two violations were punishable by a fine of 300,000 yuan, and asked to take relevant measures to Western Digital correct. December 2014, Western Digital paid a fine. Under the supervision of the report submitted by the trustee oversight, Western administrative penalty decision in accordance with the requirements of the corrective measures taken to fulfill the obligations specified in the notice. (B) Paragraph (b) obligations. Western Digital and Viviti companies reasonably determine the capacity of production according to market demand conditions, and regular monthly reports to the Authority trustee to fulfill the obligations specified in the notice. (C) Paragraph (c) obligations. Western Digital and Viviti company had no substantive change in the business model, there is no coercion or force in disguised form customers exclusively purchasing its hard disk products from the two companies to fulfill the obligations specified in the notice. (D) Paragraph (d) obligations. Western Digital and Viviti company continued to invest in innovation, research and development of new products, reduce costs, to bring customers more innovative products and solutions to fulfill the obligations specified in the notice. (V) Paragraph (e) obligations. After the announcement of the decision review within six months, Western Digital to Toshiba company spun off Viviti 3.5-inch hard business, to fulfill the obligations specified in the notice. (Vi) (vi) of obligations. After review of the decision announced by the Ministry of Commerce approved, WD commissioned an independent monitoring trustee to supervise the performance of its obligations. Trustee regularly supervise the fulfillment of obligations to the Commerce Department reported. According to monitoring reports, in addition to the emergence of two acts in violation of the bulletin's implementation of (a) the obligation process, the Western Digital 2012 No. 9 in accordance with notice requirements fulfilled its obligations. Commerce Department data on the situation in the western obligations were assessed. Assessed that Western Digital 2012 No. 9 according to notice requirements, to meet the obligations to develop a detailed operational plan, according to Commerce Department appointment of a trustee for the supervision and oversight, and to cooperate fully with the supervision of a trustee work, regularly report to the Authority trustee . During execution, the Ministry of Commerce of the two Western Digital violation bulletin conduct administrative penalties, according to Western Digital "administrative penalty decision" requirement to pay the fine and take timely corrective measures. In addition, Western Digital fulfill the notice requirements of its obligations, the Commerce Department did not receive reports about their behavior in violation of announcement. Third, the competition analysis based on "anti-monopoly law," "on business concentration restrictive conditions attached (Trial)" requirement, and in 2012 Announcement No. 9, the Ministry of Commerce to assess the lifting of restrictive conditions of competition on the market influences. (A) analysis of market competition. 1, in portable applications and enterprise applications, SSDs constraints of a traditional hard drive to enhance competition. The survey found that, in portable applications, SSDs over traditional hard competitive constraint significantly enhanced by the end of 2011; in the enterprise applications have begun to form a competitive constraint. Expected in the future, SSDs in the two areas of competitive constraints will continue to increase. First, the data show that since early 2012 announcement SSD prices, shipments increased, wherein the portable applications and enterprise applications increase is particularly significant. Independent third-party analysis shows the gross profit portable applications and enterprise applications than other areas, the sides confirmed that the two areas of solid-state drive greater competitive constraint form. Second, in recent years, major original equipment manufacturers to use solid-state drives in portable applications share is increasing. As of 2014, Apple SSDs share of 60%, 10% to 20% between Lenovo, Dell, Hewlett-Packard. Each manufacturer's official website shows that most notebooks offer solid-state drives as an upgrade option to configure. Third, the major manufacturer of SSDs in enterprise applications continue to increase the high performance and high capacity enterprise drive research and development efforts. Industry report predicted that in the next few years, the field of solid-state hard disk capacity continues to grow, the market share will continue to grow. Fourth, relevant research institutions predict solid-state drive market showed a rising trend, and growing faster than the parties expected. 2, the traditional hard drive industry surplus production capacity. The survey found that, after the 2011 floods in Thailand, hard drive enterprises to increase the production capacity, but did not significantly increase market demand. Currently data show that each traditional hard disk supplier capacity utilization is about 80%, excess capacity has increased significantly compared to the previous announcement. In the solid state drives continue to replace traditional hard disk trend, the traditional hard drive vendors will further increase excess capacity. 3, Western Digital and Hitachi hard disk storage market is still an important competitor, especially in portable applications stronger. Since 2012, the traditional hard drive market competition pattern changed little, the market is still a competitor, Seagate, Western Digital, Toshiba, Hitachi and Samsung hard drive to store five. Among them, the Western Digital and Hitachi storage market stronger, the traditional hard drive in the overall market, the combined market share of the two was 47%; in the conventional portable application market, the combined market share of the two to reach 50%. 4, sub-holding obligation limiting the Western Digital and Hitachi storage fully participate in the competition. Western Digital and Hitachi storage can not provide the full range of products, due to the performance of sub-holding obligations, can not be integrated product line of both sides, is not conducive to the customer purchases. Meanwhile, Western Digital said, lifting restrictive conditions remain independent will greatly reduce production costs, reduce duplication of expenditure and indirect costs of production, procurement, so that it can more fully participate in the market competition. (B) the conclusions of the assessment. According to the analysis of market competition, the Commerce Department said: first, the market competition analysis can be considered part of the lifting of the restrictive conditions: in portable applications and enterprise applications, SSDs constraints of a traditional hard drive significantly increased competition; traditional hard drive market excess production capacity, reducing the possibility of a competitor individually or jointly restrict competition; a change in the market competition and reduce the need for the continuation of all the restrictive conditions. Western Digital and Hitachi storage can not provide a full range of hard drive products, and the production and development of independent, increasing the cost, is not conducive to the development, detrimental to their full participation in the competition, is not conducive to the customer purchases. Second, to lift all restrictive conditions may still limit the competitive effects on the market: the traditional hard drive market competition little change, Western Digital and Hitachi storage are the major competitors in the market, stronger; complete lifting conditions may reduce the original equipment manufacturers in the bidding and competitive parity in bargaining power, improve procurement costs, and may eventually transfer to the consumer; competitive constraint SSDs, yet not enough to limit the impact of eliminating competition focused entirely possible. To sum ​​up, lifting the obligation to remain independent production, research and other aspects of the brand and sales remain independent, Western Digital can make cost savings, and provide a full range of hard drive products, to fully participate in the competition, in favor of customers purchasing. At the same time, competition in the market continue to maintain two separate sales teams and between two independent brands, can reduce the effects of competition restrictions entirely concentrated possible. Fourth, to discuss and review a decision based on the analysis and evaluation, Commerce Department data feedback to the west of the assessments. After several rounds of negotiations, Western Digital agreed to continue to keep the brand and sales independently, and has submitted six separate brand and sales to keep specific programs. After the assessment, the Ministry of Commerce believes that the ultimate solution for data submission west, to reduce the adverse effects on competition. According to "anti-monopoly law," Article 29, Article 30, "on the concentration of business operators additional restrictive conditions (Trial)" Article 25, Article 26, Article 27, Article 28, and in 2012 the 9th Announcement of the requirements of the Ministry of Commerce agreed to change in 2012 Announcement No. 9 attached restrictive conditions, Western Digital shall perform the following duties: (a) Western Digital WD should continue to maintain and HGST sales and brand independence. Western Digital and HGST to maintain sales and brand independence, to ensure effective competition between the parties, Western Digital pledged to take the following measures: 1, Western Digital Western Digital is committed to maintaining the sales team, sales team that Western Digital Western Digital existing sales to customers or future hard drives and other storage products under brand. 2, Western Digital is committed to maintaining HGST sales team, HGST TRAVELSTAR sales team to sell existing customers, ULTRASTAR brand and HGST hard drives and other storage products in the future may be the creation of a brand under. Company 3, Western Digital and HGST sales team integrate sales teams can sell to customers after the production of a complete line of storage products, including desktop computers, portable applications, high-capacity and high-performance enterprise-class enterprise solutions desired product. 4, Western Digital will establish operational, verifiable processes and procedures to ensure that the two sales teams operate independently and provide products under two different brands. Western Digital will build a firewall between the two sales teams to ensure that the two sides do not exchange competitive information. 5, Western Digital and HGST sales team sales team located in different geographical locations, and will not in the same facility at the joint. 6, Western Digital is committed to maintaining a supervisor, vice president, vice president, Western Digital sales team and another oversight HGST sales team. The two are vice president will report to Senior Vice President of Sales, which will set sales targets were Western Digital and HGST sales team. Without prejudice to the sales and brand separate premise, vice president of sales each have the right to hire or dismiss their sales team to make independent decisions, and to restructure its sales force in order to respond to market demand or customer needs. 7, Western Digital sales team and sales team members HGST customers were exposed to submit bids to business customers, respectively, and independently decided to sell the products and their prices. 8, Western Digital and HGST sales team sales team will not just sales promotion activities and projects of cooperation. (B) shall not substantially alter the previous Western business models, forced or disguised forced customers to purchase exclusively from the company of their hard drives. (Iii) Western Digital will be consistent speed in recent years, continue to invest in R & D funds in innovation to ensure that customers bring more innovative products and solutions. Western Digital should develop a detailed operational plan to ensure the implementation of the relevant commitments and accept the supervision of the Ministry of Commerce and supervision trustee. These obligations from the date of announcement of the termination of two years. If Western Digital can provide sufficient evidence that a significant change in market conditions, Western Digital may propose lifting of the obligation to apply for two years before the expiry of the period to the Ministry of Commerce. Commerce Department have the right to supervise the trustee or by its own supervision and inspection of Western Digital fulfill the above obligations. Western Digital did not properly fulfill these obligations, the Ministry of Commerce entitled to postpone the said period and handle in accordance with relevant provisions of "anti-monopoly law." This announcement is effective from the date of publication. 2012 Announcement No. 9 shall be repealed simultaneously. People's Republic of China Ministry of Commerce October 19, 2015

ผลลัพธ์ (อังกฤษ) 3:

[issued units of the people's Republic of China Ministry of Commerce
[released symbol] Announcement No. 41, 2015
[release date 2015-10-19

of the people's Republic of China Ministry of Commerce (hereinafter referred to as the Ministry of Commerce) from the western data company (hereinafter referred to as the western data) about the lifting of the Announcement No. 9, 2012 additional constraints conditions of application. The Ministry of Commerce on the application were reviewed and related matters notice as follows:

A, background and review procedures

March 2, 2012, the Ministry of Commerce released Announcement No. 9, 2012, conditional approval of Western data acquisition of Hitachi storage. March 2014,The western data put forward to lift the application for ninth (a), (two) of the obligation of the 2012. Because of the time there are two suspected violations of the announcement is being investigated, the application has not been accepted. In January 30, 2015, the Ministry of Commerce officially accepted and started the evaluation of its application after the completion of the handling of the violation of the data in the West.

in the evaluation process, the Ministry of Commerce has repeatedly talks with western data, asking them to additional evidence material, through written and discussion will seek the views of related government departments, industry associations and downstream enterprises, commissioned an independent third party to the application of economic analysis and evaluation.According to the "anti monopoly law", "on the operators to focus on the provisions of restrictive conditions (Trial)" as well as the requirements of the 2012 Announcement No. ninth, the Ministry of Commerce focused on the implementation of the 2012 ninth announcement, the market competition, and so on, comprehensive assessment of the causes and effects of the limitations of the system. Two, the implementation of the announcement



ninth 2012 Announcement No. six additional obligations of WD, Hitachi company and Viviti company. According to the western data submitted to fulfill the obligation of report and of the supervision trustee supervision report, during the execution of the western data to fulfill the obligations as follows:

(a) (a) an obligation.

western data two behavior in violation of the obligations prescribed in the announcement of the: A, March 8, 2012, the western data will Viviti subsidiary in the United States hgst American companies, transferred to Western digital technology company's become western Digital Technology Co., Ltd., a wholly owned subsidiary; second, in January 2013, Viviti/HGST company's development department is revoked, staff transferred to Western digital office. After investigation, the Ministry of Commerce believes that the above two violations of the announcement, respectively, a fine of 300000 yuan, and the relevant measures to take the relevant measures to correct the western. December 2014,Western data to pay a fine. According to the supervision report submitted by the trustee, the western data in accordance with the decision of the administrative penalty decision to take corrective measures to fulfill the obligations of the announcement.

(two) - (two) obligation.

western data and Viviti company according to the market demand situation rationally determine the production capacity and regular monthly to the supervision trustee report, fulfil the obligations prescribed in the notice.

(three) - (three) obligation.

western data and Viviti company no substantive change the previous business model, no forced or in disguised form forced customers from the two companies exclusive purchase its disk drives.Fulfill the obligations prescribed by the announcement.

(four) - (four) obligation.

western data and Viviti company in the field of innovation continued to invest money, research and development of new products, reduce the cost, to customers bring more innovative products and solutions, to fulfill the obligations prescribed in the notice.

(five) - (five) obligation.

to review the decision announced after six months, Western Digital to Toshiba company to divest the Viviti company mainly 3.5 inch hard disk drive business, to fulfill the obligations prescribed in the notice.

(six) - (six) obligation.

review after the announcement of the decision, approved by the Ministry of commerce,The data in the West have been entrusted with the supervision of the trustee to perform their duties. To monitor the performance of the obligations of the trustee to the Ministry of Commerce on a regular basis. According to the report, in addition to the implementation of the obligations of the two violations of the announcement, the western data in accordance with the requirements of the implementation of the 2012 announcement of the ninth obligations.

the Ministry of Commerce on the WD obligations were assessed. Assessment believes that the western data in accordance with the requirements of the ninth in 2012, in order to fulfill the obligations to develop a detailed operating plan, according to the Ministry of Commerce asked the appointment of supervision of the trustee to carry out supervision, and fully cooperate with the supervision trustee,Report to the supervisor on a regular basis. During the implementation of the Ministry of Commerce on the west of the two violations of the announcement of the behavior of administrative penalties, the western data in accordance with the requirements of the administrative punishment decision book to pay a fine, and to take corrective measures in time. In addition, the western data fulfill the obligations of the announcement, the Ministry of Commerce has not received a report on its violation of the behavior of the notice.

3, competition analysis based on

"anti-monopoly law", "on the operators to focus on additional restriction conditions of provisions (Trial)" and the Announcement No. 9, 2012 requirements. The focus of the Ministry of Commerce assessed the lifting effect of restrictive conditions of market competition.

(a) market competition status analysis. 1,

in portable applications and enterprise applications, the traditional hard disk SSD enhanced competition constraint. The investigation found that in the field of portable applications, the competition of the traditional hard disk drive is significantly enhanced by the end of 2011. Is expected in the future, the solid state drive in the two areas of competition will continue to strengthen the constraints. First, data show that since the beginning of 2012 announcement, the decline in the price of solid hard disk, shipments increased, which is particularly significant in the field of portable applications and enterprise applications.Independent third party analysis shows that the field of application of the field of portable applications and enterprise class product gross margin is lower than other areas, the side confirmed that the solid state drive on the two areas to form a greater competitive constraints. Second, in recent years, the main source of the original equipment manufacturers in the field of portable applications, the use of solid state hard drive. As of 2014, Apple's solid state drive to use the share reached 10%, Lenovo, DELL, HP and so on between 60% to 20%. Official website of the manufacturers show that most of the notebook computer to provide solid-state drive as the configuration upgrade options. Third,The major manufacturers of hard disk drives in the enterprise application areas continue to increase the high performance and high capacity enterprise hard drive. Industry report predicts that in the next few years, the field of solid-state hard drive capacity continued to grow, the market share will continue to expand. Fourth, the relevant research institutions to predict the solid state hard drive market is growing, and the growth rate is more than the expected.

2, traditional industry overcapacity increase hard disk. The survey found that after the flood in 2011 Thailand, hard drive companies increased capacity, but the market demand has not increased significantly. Current data show that the traditional hard drive supplier capacity utilization is about 80%,Excess capacity has significantly increased before the announcement. In the solid state hard drive to continue to replace the traditional hard drive, the traditional hard drive supplier of excess capacity will be further increased.

3, Western Digital and Hitachi storage is still a major contender for the hard disk market, especially in portable applications stronger. Since 2012, the traditional hard drive market competition has changed little, the market is still Seagate, western data, Toshiba, Hitachi storage and Samsung hard drive five. Among them, the western data and Hitachi storage market strength is strong, in the overall traditional hard drive market, the two combined market share of 47%;In the traditional portable applications market, the two combined market share reached 50%. 4, the obligation to limit

the WD and Hitachi storage to fully participate in the competition. Western data and Hitachi storage are not available to provide a full range of products, due to the performance of the obligation to integrate both sides of the product line, is not conducive to customer procurement. At the same time, the data in the West said that the lifting of the restriction would greatly reduce the cost of production, reduce the cost of production, purchase, and indirect costs, so that it can more fully participate in market competition.

(two) evaluation conclusion. According to the above analysis

market competition situation, the Ministry of Commerce said:The first

, market competition situation analysis display can be considered to lift some of the restrictive conditions: in portable applications and enterprise level applications, solid state disk on a traditional disk competition restraint significantly enhanced; the traditional hard disk market excess production capacity increased, reduced the competitors solely or together with limited competition the possibility of; changes in the market competition, reducing the continue to maintain all restrictions on the necessity of the condition. Western data and Hitachi storage can not provide a full range of hard drive products, and production and research and development are independent of each other, increasing the cost, not conducive to research and development, is not conducive to their full participation in the competition, it is not conducive to customer procurement.

second,All of the limitations of the traditional hard market competition pattern has changed little, western data and Hitachi storage are the main competitors in the market, the strength is stronger, the complete lifting conditions may reduce the original equipment manufacturers in the bidding and competition ability, improve procurement costs, and may ultimately conduction to consumers, the competition of the hard drive, is not sufficient to eliminate the possible restrictions on the impact of the competition.

to sum up, the lifting of production, research and development, independent obligation to maintain and continue to maintain the independent brand and sales, can make western data cost savings.And provide a full range of hard drive products, full participation in the competition, is conducive to customer procurement. At the same time, the market continues to maintain two independent sales team and the competition between two independent brands, can reduce the total concentration of possible restrictions on the impact of competition. Four, to discuss and review the decision



according to the above analysis and evaluation, feedback the assessment opinions to the Ministry of Commerce WD. After several rounds of talks, the western data agree to continue to maintain the brand and sales independently, and has submitted a six round to maintain the brand and sales of independent specific programs. After evaluation, the Ministry of Commerce believes that the final solution to the data submitted in the west,Can reduce the adverse impact on competition.

according to the "anti monopoly law" the 29, Article 30, "on the concentration of business operators additional restriction conditions of provisions (Trial)" Article 25, Article 26, Article 27, Article 28, and Announcement No. 9, 2012 requirements, the Ministry of Commerce agreed to change Announcement No. 9, 2012 the restrictive conditions, the western data shall fulfill the following obligations:

(a) western data should continue to maintain the independence of Western Digital and hgst's sales and brand. In order to maintain the independence of Western Digital and hgst sales and brand, to ensure effective competition between the parties, the western data promises to take the following measures: 1

,Western data commitment to maintain the data sales team, the western data sales team to sell the western data to the existing or future brand name of the hard disk and other storage products.

2, Western commitment data maintain hgst sales team, hgst sales team to sell to existing customers of TRAVELSTAR, brand ULTRASTAR as well as hgst may in the future to create the brand of hard disk and other storage products.

3, western data sales team and hgst sales team can to customer and sales integration company production of complete series of storage products, including desktop and portable applications,High - capacity enterprise - level and high - performance enterprise - level solutions.

4, western data will set up operation and verification processes and procedures, to ensure that the two sales teams to operate independently, and provide two different brands of products. Western data will be established between the two sales team firewall, to ensure that the two sides will not exchange competitive information.

5, western data sales team and hgst sales teams located in different geographic locations, and not in the same facility joint.

6, western data promises to maintain the vice president of the vice president of a supervision and Western Digital sales team and another supervision hgst sales team.Two vice president will be sales to senior vice president, the latter will be the western data and HGST sales team set the sales target. Under the premise that no damage to sales and brand independence, each vice president of sales has the right to hire or dismiss its sales team to make independent decisions, and have the right to restructure its sales team to meet market demand or customer needs.

7, members of the western data sales team and hgst sales team respectively contact with customers, were submitted to the customer business bid, and independent decision on sales of products and their prices.

8,Western data sales team and HGST sales team will not cooperate with the project on sales promotion activities and projects.

(2) western data not substantive change the previous business model, forced or in disguised form forcing customers to from the company exclusive purchase its disk drives.

(3) western data will at a consistent speed in recent years, continue to invest R & D funds in the field of innovation, to ensure that customers to bring more innovative products and solutions.

western data should develop with the operation of the program to ensure the implementation of relevant commitments, and accept the supervision of the Ministry of Commerce and the supervision trustee. Thanks to the above obligations since the announcement 2 years from the date of termination.If the western data can provide sufficient evidence to prove that the market situation has changed significantly, the data in the western part of the 2 years before the expiry of the Ministry of Commerce to lift the application of the relevant obligations.

the Ministry of Commerce has the right through the supervision trustee or self supervision and inspection WD to fulfill the obligations of the situation. Western data without proper performance of the obligations, the Ministry of Commerce has the right to extended the time limit and according to the "anti monopoly law" the relevant provisions to make a deal. Effective

this announcement from the date of issue. 2012 ninth announcement at the same time. The Ministry of Commerce of the people's Republic of





2015 in October 19th