Chương 2 Luật cạnh tranh 2004: Kiểm soát hành vi hạn chế cạnh tranh

Chapter II

CONTROL OF PRACTICES IN RESTRAINT OF COMPETITION

Section 1. AGREEMENTS IN RESTRAINT OF COMPETITION ARTICLE 8 AGREEMENTS IN RESTRAINT OF COMPETITION AGREEMENTS IN RESTRAINT OF COMPETITION SHALL COMPRISE:

1. Agreements either directly or indirectly fixing the price of goods and services;

2. Agreements to share consumer markets or sources of supply of goods and services;

3. Agreements to restrain or control the quantity or volume of goods and services produced, purchased or sold;

4. Agreements to restrain technical or technological developments or to restrain investment;

5. Agreements to impose on other enterprises conditions for signing contracts for the purchase and sale of goods and services or to force other enterprises to accept obligations which are not related in a direct way to the subject matter of the contract;

6. Agreements which prevent, impede or do not allow other enterprises to participate in the market or to develop business;

7. Agreements which exclude from the market other enterprises which are not parties to the agreement;

8. Collusion in order for one or more parties to win a tender for supply of goods and services.

Article 9. Prohibited agreements in restraint of competition

1. The agreements stipulated in clauses 6, 7 and 8 of article 8 of this Law shall be prohibited.

2. The agreements in restraint of competition stipulated in clauses 1, 2, 3, 4 and 5 of article 8 of this Law shall be prohibited when the parties to the agreement have a combined market share of thirty (30) per cent or more of the relevant market.

Article 10. Exemptions for prohibited agreements in restraint of competition

1. An agreement in restraint of competition stipulated in clause 2 of article 9 of this Law shall be entitled to exemption for a definite period if it satisfies one of the following criteria aimed at reducing prime costs and benefiting consumers:

(a) It rationalizes an organizational structure or a business scale or increases business efficiency;

(b) It promotes technical or technological progress or improves the quality of goods and services;

(c) It promotes uniform applicability of quality standards and technical ratings of product types;

(d) It unifies conditions on trading, delivery of goods and payment, but does not relate to price or any pricing factors;

(dd) It increases the competitiveness of medium and small sized enterprises;

(e) It increases the competitiveness of Vietnamese enterprises in the international market.

2. The order, procedures and duration of exemptions shall be implemented in accordance with the provisions in Section 4 of this Chapter.

Section 2. ABUSE OF DOMINANT MARKET POSITION AND MONOPOLY POSITION

Article 11. Enterprises and groups of enterprises in dominant market position

1. An enterprise shall be deemed to be in a dominant market position if such enterprise has a market share of thirty (30) per cent or more in the relevant market or is capable of substantially restraining competition.

2. A group of enterprises shall be deemed to be in a dominant market position if they act together in order to restrain competition and fall into one of the following categories:

(a) Two enterprises have a market share of fifty (50) per cent or more in the relevant market;

(b) Three enterprises have a market share of sixty five (65) per cent or more in the relevant market;

(c) Four enterprises have a market share of seventy five (75) per cent or more in the relevant market.

Article 12. Enterprises in monopoly position

An enterprise shall be deemed to be in a monopoly position if there are no enterprises competing in the goods and services in which such enterprise conducts business in the relevant market.

Article 13. Practices constituting abuse of dominant market position which are prohibited

Any enterprise or group of enterprises in a dominant market position shall be prohibited from carrying out the following practices:

1. Selling goods or providing services below total prime cost of the goods aimed at excluding competitors;

2. Fixing an unreasonable selling or purchasing price or fixing a minimum re-selling price goods or services, thereby causing loss to customers;

3. Restraining production or distribution of goods or services, limiting the market, or impeding technical or technological development, thereby causing loss to customers;

4. Applying different commercial conditions to the same transactions aimed at creating inequality in competition;

5. Imposing conditions on other enterprises signing contracts for the purchase and sale of goods and services or forcing other enterprises to agree to obligations which are not related in a direct way to the subject matter of the contract;

6. Preventing market participation by new competitors.

Article 14. Practices constituting abuse of monopoly position which are prohibited

Any enterprise in a monopoly position shall be prohibited from carrying out the following practices:

1. Practices stipulated in article 13 of this Law;

2. Imposing disadvantageous conditions on customers;

3. Abuse of monopoly position in order to change or cancel unilaterally a signed contract without legitimate reason.

Article 15. Control of enterprises operating in State monopoly sectors and of enterprises engaged in production or supply of public utility products or services

1. The State shall control enterprises which operate in State monopoly sectors by taking the following measures:

(a) Deciding the selling price or purchasing price of goods and services in State monopoly sectors;

(b) Deciding the quantity, volume, price and market scope of goods and services in State monopoly sectors.

2. The State shall control enterprises which produce or supply public utility products or services by the method of placing orders, assigning plans or conducting tendering in accordance with prices or fees stipulated by the State.

3. When conducting business activities outside State monopoly sectors and other than production or supply of public utility products or services, enterprises shall not be subject to the controls stipulated in clauses 1 and 2 of this article but shall be governed by the other provisions of this Law.

Section 3. ECONOMIC CONCENTRATION

Article 16. Economic concentration

Economic concentration means conduct of enterprises comprising:

1. Merger of enterprises;

2. Consolidation of enterprises;

3. Acquisition of an enterprise;

4. Joint venture between enterprises;

5. Other forms of economic concentration as stipulated by law.

Article 17. Merger, consolidation, acquisition and joint venture between enterprises

1. Merger of enterprises means the transfer by one or more enterprise(s) of all of its lawful assets, rights, obligations and interests to another enterprise and at the same time the termination of the existence of the merging enterprise(s)

2. Consolidation of enterprises means the transfer by two or more enterprises of all of their lawful assets, rights, obligations and interests to form one new enterprise and at the same time the termination of the existence of the consolidating enterprises.

3. Acquisition of an enterprise means the purchase by one enterprise of all or part of the assets of another enterprise sufficient to control or govern the activities of one or all of the trades of the acquired enterprise.

4. Joint venture between enterprises means two or more enterprises together contribute a portion of their lawful assets, rights, obligations and interests to form a new enterprise.

Article 18. Prohibited cases of economic concentration

Any economic concentration shall be prohibited if the enterprises participating in the economic concentration have a combined market share in the relevant market of more than fifty (50) per cent, except in the cases stipulated in article 19 of this Law or where the enterprise after the economic concentration still falls within the category of medium and small sized enterprises as stipulated by law.

Article 19. Cases of exemption for prohibited economic concentration

A prohibited economic concentration as stipulated in article 18 of this Law may be considered for exemption in the following cases:

1. One or more of the parties participating in the economic concentration is or are at risk of being dissolved or of becoming bankrupt;

2. The economic concentration has the effect of extension of export or contribution to socio-economic development and/or to technical and technological progress.

Article 20. Notification of economic concentration

1. In the case where enterprises participating in an economic concentration have a combined market share in the relevant market of from thirty (30) per cent to fifty (50) per cent, the legal representative of such enterprises must notify the administrative body for competition prior to carrying out the economic concentration.

If the enterprises participating in the economic concentration have a combined share in the relevant market of less than thirty (30) per cent or if, after the economic concentration, the enterprise still falls within the category of medium and small sized enterprise as stipulated by law, they shall not be required to provide notification.

2. Enterprises participating in an economic concentration and entitled to exemption pursuant to article 19 of this Law shall submit a file for request of exemption in accordance with the provisions in Section 4 of this Chapter, instead of providing notification of the economic concentration.

Article 21. File for notification of economic concentration

1. A file for notification of an economic concentration shall comprise:

(a) Written notification of the economic concentration in the form issued by the administrative body for competition;

(b) Valid copy of the certificate of business registration of all of the enterprises participating in the economic concentration;

(c) Financial statements for the last two consecutive years of all of the enterprises participating in the economic concentration, certified by an auditing organization as stipulated by law;

(d) List of the enterprises which are subsidiary entities of the enterprises participating in the economic concentration;

(dd) List of all types of goods and services in which the enterprises participating in the economic concentration and their subsidiaries are currently conducting business;

(e) Report on market share in the relevant market of the enterprises participating in the economic concentration for the last two consecutive years.

2. The enterprise submitting a file for notification of an economic concentration shall be responsible for the truthfulness of the file.

Article 22. Acceptance of jurisdiction over file for notification of economic concentration

The administrative body for competition shall be responsible, within a time-limit of seven working days from the date of receipt of a file, to provide written notice to the enterprise submitting the file on the completeness and validity of the file.

If a file is incomplete, the administrative body for competition shall be responsible to specify what items are required to be supplemented.

Article 23. Time-limit for reply to notification of economic concentration

1. The administrative body for competition shall be responsible, within a time-limit of forty five (45) days from the date of receipt of a complete file for notification of an economic concentration, to provide a written reply to the enterprise which submitted the file. The written reply of the administrative body for competition must confirm that the economic concentration belongs to one of the following categories:

(a) The economic concentration does not fall within the prohibited category;

(b) The economic concentration is prohibited pursuant to article 18 of this Law. The reasons for the prohibition must be specified in the written reply.

2. In complex cases of economic concentration, the head of the administrative body for competition may issue a decision extending the time-limit for a reply as stipulated in clause 1 of this article, but on not more than two occasions and each extension may not exceed thirty (30) days, and there must be written notice to the enterprise which submitted the file, specifying the reason for the extension, at least three working days prior to expiry of the time-limit for a reply to a notification.

Article 24. Carrying out economic concentrations

The legal representative of enterprises participating in an economic concentration in the category required to provide notification as stipulated in clause 1 of article 20 of this Law may conduct procedures for the economic concentration at the authorized State body in accordance with the laws on enterprises only after having received a written reply from the administrative body for competition that the economic concentration is not within the prohibited category.

Section 4. PROCEDURES FOR OBTAINING EXEMPTION

Article 25. Authority to make decision on exemption

1. The Minister of Trade shall consider and make a written decision on exemptions stipulated in article 10 and clause 1 of article 19 of this Law.

2. The Prime Minister of the Government shall consider and make a written decision on exemptions stipulated in clause 2 of article 19 of this Law.

Article 26. Subjects submitting file for request of exemption

Subjects submitting a file for request of exemption shall be the parties intending to enter an agreement in restraint of competition or to participate in an economic concentration.

Article 27. Legal representative of parties to agreement in restraint of competition or to economic concentration

1. Parties intending to enter an agreement in restraint of competition or to participate in an economic concentration may appoint a representative to conduct the procedures for request of exemption. This appointment must be in writing and certified by all of the parties.

2. The rights and obligations of the representative shall be agreed and regulated by the parties.

3. All of the parties shall be responsible for the acts of the representative within the scope of authorization.

Article 28. File for request of exemption for agreement in restraint of competition

1. A file for request of exemption for an agreement in restraint of competition shall comprise:

(a) Application in the form issued by the administrative body for competition;

(b) Valid copy of certificate of business registration of each of the enterprises participating in the agreement in restraint of competition; if an association intends to participate, the charter of the association;

(c) Financial statements for the last two consecutive years of each of the enterprises participating in the agreement in restraint of competition, certified by an auditing organization in accordance with law;

(d) Report on market share in the relevant market for the last two consecutive years of the enterprises participating in the agreement in restraint of competition;

(dd) Detailed explanatory report on how the conditions for exemption as stipulated in article 10 of this Law are satisfied;

(e) Power of attorney to the representative from all parties participating in the agreement in restraint of competition.

2. The party submitting the application file and all of the parties participating in the agreement shall be responsible for the truthfulness of the file.

Article 29. File for request of exemption for economic concentration

1. A file for request of exemption for an economic concentration shall comprise:

(a) Application in the form issued by the administrative body for competition;

(b) Valid copy of certificate of business registration of each of the enterprises participating in the economic concentration;

(c) Financial statements for the last two consecutive years of each of the enterprises participating in the economic concentration, certified by an auditing organization in accordance with law;

(d) Report on market share in the relevant market for the last two consecutive years of each of the enterprises participating in the economic concentration;

(dd) Detailed explanatory report on how the conditions for entitlement to exemption as stipulated in article 19 of this Law are satisfied;

(e) Power of attorney to the representative from all of the parties participating in the economic concentration.

2. The party submitting the application file and all of the parties participating in the economic concentration shall be responsible for the truthfulness of the file.

Article 30. Acceptance of jurisdiction over file for request of exemption

1. The administrative body for competition shall be responsible to accept jurisdiction over files for request of exemption and to forward its opinion to the Minister of Trade for decision or to submit same to the Prime Minister for his decision.

2. Within a time-limit of seven working days from the date of receipt of a file for request of exemption, the administrative body for competition shall be responsible to provide written notice to the party which submitted the file on the completeness of the file. If a file is incomplete, the administrative body for competition shall be responsible to specify what items are required to be supplemented.

3. The party submitting a file must pay a fee for evaluation of the file for request of exemption in accordance with law.

Article 31. Request to supplement file for request of exemption

The administrative body for competition shall have the right to require the party which submitted the file for request of exemption to add necessary documents and information relating to the proposed agreement in restraint of competition or economic concentration and to provide additional explanation of any unclear matters.

Article 32. Provision of information by related parties

1. The administrative body for competition shall have the right to require organizations and individuals concerned to provide information about agreements in restraint of competition and economic concentrations over which the administrative body for competition has accepted jurisdiction.

2. Within a time-limit of fifteen (15) days from the date of receipt of a request from the administrative body for competition, an organization or individual concerned shall be responsible to provide a written reply on the matters requested.

Article 33. Withdrawal of request of exemption

1. A party wishing to withdraw its request of exemption after submission must provide written notice to the administrative body for competition.

2. The administrative body for competition shall not refund fees for evaluation of a file for request of exemption in the case stipulated in clause 1 of this article.

Article 34. Time-limits for issuance of decision

1. The Minister of Trade shall, within a time-limit of sixty (60) days from the date of receipt of a complete file for request of exemption, issue one of the following decisions:

(a) Agree that the parties are entitled to an exemption;

(b) Not agree that the parties are entitled to an exemption.

2. In complex cases, the Minister of Trade may extend the time-limit for issuance of the decision stipulated in clause 1 of this article, but on not more than two occasions and each extension may not exceed thirty (30) days.

3. Where an economic concentration case falls within the authority of the Prime Minister of the Government to grant an exemption, the time-limit for issuance of a decision agreeing or not agreeing to grant of exemption shall be ninety (90) days from the date of receipt of a complete file, and one hundred and eighty (180) days in complex cases.

4. If the time-limit for issuance of a decision is extended, the administrative body for competition shall provide a written notice to the party which submitted the file, specifying the reasons, at least three working days prior to expiry of the time-limit for issuance of a decision.

Article 35. Decisions granting exemption

1. A decision granting exemption must contain the following main particulars:

(a) Names and addresses of the parties permitted to carry out the practice;

(b) Contents of the permitted practice;

(c) Duration of effectiveness of the exemption, conditions on and obligations of the parties.

2. The administrative body for competition shall be responsible to make public any decision granting exemption in accordance with regulations of the Government.

Article 36. Carrying out agreement in restraint of competition or economic concentration in cases granted exemption

1. Parties participating in an agreement in restraint of competition which are granted exemption may perform such agreement only after they have a decision granting exemption from the Minister of Trade.

2. The legal representative of enterprises participating in an economic concentration which are granted exemption may conduct procedures for the economic concentration at the authorized State body in accordance with the laws on enterprises only after they have a decision granting exemption from the Prime Minister of the Government or the Minister of Trade.

Article 37. Revocation of decision granting exemption

1. Any entity authorized to issue a decision granting exemption shall also have the right to revoke such decision.

2. A decision granting exemption shall be revoked in the following circumstances:

(a) Upon discovery of fraud during application for exemption;

(b) When an enterprise granted exemption fails to fulfil the conditions and discharge the obligations within the time-limit stipulated in the decision granting exemption;

(c) When the conditions for exemption no longer exist.

Article 38. Complaint about granting of entitlement to exemption

Any enterprise which disagrees with a decision granting exemption or not granting exemption or a decision revoking a decision granting exemption shall have the right to complain in accordance with the laws on complaints and denunciations.