Chương III Luật cạnh tranh năm 2018: Thỏa thuận hạn chế cạnh tranh

Chapter III

ANTI-COMPETITIVE AGREEMENTS

Article 11. Anti-competitive agreements

1. Agreements on directly or indirectly fixing goods or service prices.

2. Agreements on distributing customers, consumption market, sources of supply of goods, provision of services.

3. Agreements on limiting or controlling the quantity, volume of produced, purchased, sold goods or provided services.

4. Agreements for one of more parties to the agreements to win tenders when participating in tenders for supply of goods or services.

5. Agreements on preventing, restraining, disallowing other enterprises from entering the market or develop business.

6. Agreements on abolishing from the market enterprises other than the parties to the agreements.

7. Agreements on restricting technical or technological development and investments.

8. Agreement on imposing on other enterprises conditions for signing of goods or services purchase or sale contracts or forcing other enterprises to accept obligations which have no direct connection with the subject of such contracts.

9. Agreements on not trading with enterprises other than the parties to the agreements.

10. Agreements on restricting consumption market, sources of supply of goods and services from enterprises other than the parties to the agreements.

11. Other agreements that cause or may cause anti-competitive effects.

Article 12. Prohibited anti-competitive agreements

1. Enterprises on the same relevant market are prohibited from entering anti-competitive agreements prescribed in Clauses 1, 2, and 3 Article 11 of this Law.

2. Enterprises are prohibited from entering anti-competitive agreements prescribed in Clauses 4, 5 and 6 Article 11 of this Law.

3. Enterprises on the same relevant market are prohibited from entering anti-competitive agreements prescribed in Clauses 7, 8, 9, 10 and 11 Article 11 of this Law if such agreements cause or may cause substantial anti-competitive effects on the market.

4. Enterprises doing business in different steps of the same production, distribution, supply chain for specific kinds of goods, services are prohibited from entering anti-competitive agreements prescribed in Clauses 1, 2, 3, 7, 8, 9, 10 and 11 Article 11 of this Law if such agreements cause or may cause substantial anti-competitive effects on the market.

Article 13. Assessment of substantial anti-competitive effects caused or probably caused by anti-competitive agreements

1. The National Competition Commission shall assess substantial anti-competitive effects caused or probably caused by an anti-competitive agreement based on the following factors:

a) Market share of the enterprises engaging in the agreement;

b) Barriers to market entry and expansion;

c) Limitations to technological research, development, renovation or technological capacity limitation;

d) Reduction in accessibility or ownership to essential infrastructure;

dd) Increase of customers’ costs and time for buying goods and services of the enterprises engaging in the agreement or customers’ switching to other related products;

e) Obstruction of competition in the market through control of other specific factors in the sectors and domains related to the parties engaging in the agreement.

2. The Government shall provide guidelines for Clause 1 of this Article.

Article 14. Exemption from prohibition on anti-competitive agreements

1. Anti-competitive agreements prescribed in Clauses 1, 2, 3, 7, 8, 9, 10 and 11 Article 11 which are prohibited in Article 12 of this Law shall be granted exemption for a definite term if they meet one of the following conditions and benefit consumers:

a) Promoting technical and technological advances, raising the quality of goods, services;

b) Increasing the competitiveness of Vietnamese enterprises on international market;

c) Promoting the single application of quality standards and technical norms of product categories;

d) Agreeing on conditions for contract performance, goods delivery and payment, which are not related to prices and price elements.

2. In cases where labor agreements, cooperation agreements in specific sectors or domains have been prescribed by other relevant laws, they shall be exempted in accordance with the provisions of this Law.

Article 15. Application for exemption from prohibition on anti-competitive agreements

1. Enterprises intending to enter into anti-competitive agreements shall submit an application for exemption for prohibited anti-competitive agreements (hereinafter referred to as exemption application) to the National Competition Commission.

2. Required documents in exemption application:

a) An application form issued by the National Competition Commission;

b) Draft contents of the agreement reached by the parties;

c) A valid copy of the enterprise registration certificate or equivalent document of each enterprise participating in the anti-competitive agreement and a copy of the association's charter, for cases where an industry association participates in the agreement;

d) Financial statements of the two consecutive years preceding the year of submission of the exemption application or, in case of newly established enterprises, financial statements from the time of establishment to the time of submission of the exemption application of each enterprise participating in an anti-competitive agreement, which are certified by an auditing firm in accordance with the provisions of law;

dd) A report explaining in detail the eligibility for exemption as specified in Clause 1 Article 14 of this Law, enclosed with evidence;

e) Letter(s) of authorization given to representatives by the parties to the anti-competitive agreement.

3. The party submitting the application shall be responsible for the truthfulness of the application. Vietnamese translations are required if documents in the application are made in foreign language.

Article 16. Acceptance of exemption application

1. The National Competition Commission shall be responsible for accepting exemption applications.

2. Within 7 working days from receipt of an exemption application, the National Competitive Commission shall notify the applicant in writing that whether the application is complete and valid.

If the application is incomplete or invalid, the National Competition Commission shall notify the applicant in writing of deficiencies need amendments and allow them 30 days to make amendments from the date of notice.

Upon expiry of 30 days, if no amendment is made or the application is not amended completely, the National Competition Commission shall return the application.

3. After receiving a notice certifying that the application is complete and valid, the applicant shall pay an amount of appraisal fee as prescribed in law on fees and charges.

4. The application is accepted when the applicant fully pays the appraisal fee.

Article 17. Request for further documentation in exemption application

1. After accepting the exemption application, the National Competition Commission may request the applicant to provide further documentation relating to the intention to execute the anti-competitive agreement.

2. If the applicant fails to provide additional documentation or provide insufficient documentation, the National Competition Commission shall consider the application according to provided documentation.

Article 18. Consultation while processing exemption application

1. The National Competition Commission may consult relevant entities about the contents of the prohibited anti-competitive agreement in question.

2. Within 15 days from the date on which the request for consultation is received, the relevant entity shall respond in writing and provide documentation supporting their consultation.

Article 19. Withdrawal of exemption application

1. An applicant is entitled to withdraw its exemption application. A request for withdrawal of such application shall be made in writing and sent to the National Competition Commission.

2. The appraisal fee shall not be refunded to the applicant who withdrew its exemption application.

Article 20. Power and time limit to grant exemption

1. The National Competition Commission has power to grant or not grant exemption as prescribed in this Law; if exemption is not granted, it shall provide explanation in writing.

2. Time limit for granting exemption is 60 days from the date on which the application is accepted.

3. In a complicated case, the time limit prescribed in Clause 2 of this Article may be extended by the National Competition Commission but not exceeding 30 days. The extension must be notified to the applicant at least 3 working days before the deadline for consider granting the exemption.

4. If the National Competition Commission commits violations against regulations on procedures and time limit for granting exemption, the enterprise is entitled to file a claim or lawsuit as per the law.

Article 21. Exemption decision

1. An exemption decision must at least contain:

a) Names and address of parties engaging in the agreement;

b) Contents of the agreement to be performed;

c) Conditions and obligations of parties engaging in the agreement;

d) Exemption period.

2. An exemption decision must be sent to parties engaging in the agreement within 7 working days from its date of issuance.

3. The exemption period prescribed in Point d Clause 1 hereof is no longer than 5 years from the date of issuance.

Within 90 days before expiry of exemption period, at the request of parties engaging in the agreement, the National Competition Commission shall consider granting further exemption. If a further exemption is granted, the extra period is no longer than 5 years from the date on which the decision of further exemption is issued.

Article 22. Execution of anti-competitive agreement eligible for exemption

1. Parties engaging in an anti-competitive agreement that are eligible for exemption prescribed in Clause 1 Article 14 hereof may only enter into the agreement after they obtain an exemption decision as prescribed in Article 21 hereof.

2. Parties engaging in the agreement eligible for exemption must adhere to the exemption decision as prescribed in Article 21 hereof.

Article 23. Annulment of exemption decision

1. The National Competition Commission shall decide to annul exemption decisions in the following cases:

a) Eligibility for exemption is not longer available;

b) Fraud is found in the application for exemption;

c) The enterprise gaining exemption fails to fulfill the conditions and obligations specified in the exemption decision;

d) The exemption decision is made based on inaccurate information on eligibility for exemption.

2. If the enterprise gaining exemption is no longer eligible for exemption, it shall notify the National Competition Commission, the National Competition Commission shall then issue a decision on annulment of exemption decision.

3. An annulment of exemption decision must be sent to parties engaging in the agreement within 7 working days from its date of issuance.