Chương 2 Nghị định 116/2005/NĐ-CP Hướng dẫn Luật Cạnh tranh: Kiểm soát hành vi hạn chế cạnh tranh

Chapter II

CONTROL OF COMPETITION-RESTRICTING ACTS

Section 1. DEFINITION OF RELEVANT MARKETS

Article 4. Definition of relevant product markets

1. A relevant product market is a market of products or services which are interchangeable in terms of characteristics intended use and price.

2. Characteristics of a product or service shall be identified on one or more of the following grounds:

a. Physic characteristics;

b. Chemical characteristics;

c. Technical properties;

d. Side effects on users;

e. Absorbability.

3. Intended use of a product or service shall be determined as its most principal intended use.

4. The price of a product or service is the price written in its retail invoice according to the provisions of law.

5. The interchangeability of a product or service shall be defined as follows:

a. Products or services shall be regarded as interchangeable in characteristics if they have many similar physic, chemical characteristics, technical properties, side effects on users and absorbability;

b. Products or services shall be regarded as interchangeable in intended use if they have similar intended use if they have similar intended uses;

c. Products or services shall be regarded as interchangeable in price if, in case of an increase of over 10% I the prices of such products or services which is maintained for six consecutive months, over 50% of a random sample of 1,000 consumers living in a relevant geographical area switch or intend to buy other products or services with the characteristics or intended use similar to products or services which they are using or intend to use.

In case the number of consumers living in a relevant geographical market stated at this Point is less than 1,000, a random sample must include at least 50% of the number of such consumers.

6. In case of the result of definition of the interchangeability of products or services by the method defined in Clause 5 of this Article is insufficient for reaching a conclusion on the interchangeability of such products or services, the competition-managing agency or the competition case-handling panel may additionally consider one or more of the following factors for defining the interchangeability of products or services:

a. The rate of change in the demand for a product or service as a result of a change in the price of another product or service;

b. The length of time required for the supply of a product or service to the market when there is a sudden increase in demand;

c. The duration of use of a product or service;

d. The supply substitutability under the provisions of Article 6 of this Decree.

7. In case of necessity, the competition-managing agency or the competition case- handling panel may identify an additional group of consumers living the relevant geographical area who cannot switch to buy another product or service which has characteristics and intended user similar to the product or service they are using or intend to use in case of an increase of over 10% in the price of such product or service, which is maintained for six consecutive months.

Article 5. Definition of relevant product market in special cases

1. A relevant product market may be defined to be the market of a specific product or a group of specific products based on the market structure and consumer practices.

2. When defining a relevant product market in the case specified in Clause 10 of this Article, the market of products complementary to the relevant product may be taken into consideration.

Products shall be regarded as complementary to the relevant product if an increase or decrease in their price will result in a corresponding increase or decrease in the relevant product.

Article 6. Determination of supply substitutability

Supply substitutability is the capacity of an enterprise that is producing or distributing a product or service to produce or distribute another product or service, in case of a price increase of such product or service, within a short period of time without incurring significant costs.

Article 7. Definition of relevant geographical market

1. Relevant geographical market means a specific geographical area where exist products or services which are interchangeable under similar conditions of competition, and which is considerably differentiated from neighboring areas.

2. The boundaries of a geographical area defined in clause 1 of this Article shall be determined on the following grounds:

a. A geographical area where a business establishment of another enterprise participating in the distribution of the relevant product is base;

b. A business establishment of another enterprise is based in a neighboring area sufficiently close to the geographical area defined at Point a of this clause for its participation in the distribution of the relevant product in such geographical area;

c. Transportation costs in the geographical area defined in clause 1 of this Article;

d. The tome of transportation costs in the geographical area defined in clause 1 of this Article;

e. Barriers to market entry.

3. A geographical area may be considered having similar competition conditions and being significantly differentiated from neighboring geographical areas if it satisfies one of the following criteria:

a. Transportation cost and time will result in an increase of no more than 10% in the retail prices of products;

b. There exists one of the barriers to market entry as specified in Article 8 of this decree.

Article 8. Barriers to market entry

Barriers to market entry include:

1. Inventions, utility solutions, industrial designs, marks, geographical indications according to the provisions of law on industrial property.

2. Financial barriers, including costs of investment in production, distribution, trade promotion or accessibility to financing sources.

3. Administrative decisions of state management agencies.

4. Regulations on conditions on trading and use of goods or services, professional standards.

5. Import duties and import quotas.

6. Consumer practices

7. Other barriers to market entry.

Section 2. DETERMINATION OF SALES TURNOVER, PURCHASE TURNOVER, MARKET SHARES FOR CONTROL OF COMPETITION-RESTRICTING ACTS

Article 9. Sales turnover, purchase turnover for determining market shares of enterprises.

An enterprises sales turnover or purchase turnover with respect to a product or service shall be determined in accordance with the provisions of law on tax, accounting standards of Vietnam and the provisions of Article 10,11 and 12 of this Decree.

Article 10. Sales turnover, purchase turnover for determining market shares of groups of enterprises which are directly organizationally and financially associated.

1. A group of enterprise shall be regarded as directly organizationally and financially associated (hereinafter collectively referred to as group of associated enterprises) if it has a common executive body and its capital invested by this body.

2. Sales turnover, purchase turnover with respect to a product or service for determining the market share of a group of associated enterprises shall be the aggregate of sales turnovers or purchase turnovers with respect to such product or service of all member enterprises and non-business units operating according to the assignment of the common executive body defined in clause 1 of this Article.

Sales turnover or purchase turnover with respect to a product or service of a group of associated enterprises shall not include turnover from the sale of the product or the provision of the service between the common executive body and member enterprises or non-business units operating according to the assignment of the common executive body defined in this Clause.

Article 11. Turnover for determining market shares of insurance enterprises

Turnover determining the market share of an insurance enterprise shall be the aggregate of insurance premiums and re-insurance premiums received in a fiscal year, turnover for determining its market share shall be the total of insurance premium and re-insurance premiums received in a month or a quarter counting from the time the insurance enterprise starts to operate to the time of determining its market share according to the provisions of Article 13 of this Decree.

Article 12. Turnover for determining market shares of credit institutions.

Turnover for determining the market share of a credit institution shall be the aggregate of the following incomes:

1. Interests.

2. Service charges.

3. Incomes from foreign exchange dealings.

4. Profits from contributed capital and/or purchased shares.

5. Incomes from other business operations.

6. Other incomes.

Article 13. Determination of market shares of enterprises on relevant markets

1. The market share of an enterprise with respect to a certain product or service on a relevant market shall be determined under the provisions of Clause 5, Article 3 of the Competition Law, except for cases specified in Clauses 2 and 3 of this Article.

2. The market share of a newly established enterprise which has conducted business operations for less than one fiscal year before joining an economic concentration shall be its market share on the relevant market in a month or a quarter counting from the time the enterprise starts operation to the time one month before the date indicated in the notice on its joining in the economic concentration.

3. The market share stated in the exemption application dossier of a newly established enterprise which has conducted business operations for less than one fiscal year shall be its market share on the relevant market in a month or a quarter counting from the time the enterprise starts operation to the time one month before the date indicated in the exemption application.

Section 3. COMPETITION RESTRICTION AGREEMENTS

Article 14. Agreements on directly or indirectly fixing product or service prices

An agreement on directly or indirectly fixing the price of a product or service is an agreement on concerted practices in one of the following forms:

1. Application of a sing le price to some or all customers.

2. Price increase or decrease at a given level.

3. Application of a common pricing formula.

4. Maintenance of a fixed price rate of the relevant product.

5. Offer of no price discount or application of a uniform price discount.

6. Offer of credit quotas to customers.

7. No price decrease unless other parties to the agreement are notified thereof.

8. Use of a uniform price at the time when price negotiations start.

Article 15. Agreements on sharing of outlets, sources of supply of products, provision of services

1. An agreement on sharing of outlets is an agreement on the volume of products or services; place of purchases and sale of products or services, group of customers for each party to the agreement.

2. An agreement on sharing of the source of supply of products or provision of services is an agreement whereby each party may purchase products or services only from one or some given sources.

Article 15. Agreements on sharing of outlets, sources of supply of products, provision of services

Article 16. Agreements on restriction or control of produced, purchased or sold quantities or volumes of products or services

1. An agreement on restriction of produced, purchased or sold quantities or volumes of products or services is an agreement to cut or reduce the produced, purchased or sold quantity or volume of goods or services on a relevant market, compared to before.

2. An agreement on control of produced, purchased or sold quantities or volumes of products or services is an agreement to fix the produced, purchased or sold quantity or volume of goods of services at a level sufficient to create their scarcity on a market.

Article 17. Agreements on restriction of technical, technological developments, restriction of investments

1. An agreement on restriction of technical, technological inventions is an agreement to purchase inventions, utility solutions or industrial designs for destruction or non-use thereof.

2. An agreement on restriction of investments is an agreement not to increase capital for production expansion or improvement of the product or service quality or for other expansion or development.

Article 18. Agreements on imposition on other enterprises of conditions for signing product or service purchase or sale contracts or on forcing of other enterprises to accept obligations not directly connected with the object of such contracts

1. An agreement on imposition on other enterprises of conditions for signing a product or service purchase or sale contract is an agreement to impose one or some of the following pre-conditions before signing a contract;

a. Restriction of production or distribution of other products; purchase or provision of other services not directly related to the commitments of the agent according to the provisions of law on agency;

b. Restriction of the place for re-sale of products, except for products on the list of those subject to conditional business or restricted business according to the provisions of law;

c. Restriction of customers who can purchase products for resale, except for products stated at Point b of this Clause;

d. Restriction of the form and quantity of products to be supplied.

2. An agreement on forcing of another enterprise to accept obligations not directly connected with the object of the contract is an agreement binding another enterprise, when purchasing or selling the product or service with any enterprise being a party to the agreement, to purchase other products or services from a designated supplier or person or to perform one obligation or some obligations unnecessary for the performance of the contract.

Article 19. Agreements on prevention, restraint or prohibition of other enterprises from entering the market or developing business

1. An agreement on prevention, restraint or prohibition of another enterprise from entering a market is an agreement not to transact with an enterprise not being a party to the agreement or to take concerted practices in one of the following forms:

a. Requesting, appealing, inducing ones customers not to purchase, sell product or not to use services of an enterprise not being a party to the agreement;

b. Purchasing, selling products or services at a price sufficient for rendering an enterprise not being a party to the agreement unable to enter the relevant market.

2. an agreement on prevention, restraint or prohibition of another enterprise from developing business is an agreement not to transact with an enterprise not being a party to the agreement or to take concerted practices in one of the following forms:

a. Requesting appealing, inducing distributors or retailers that are transacting with the parties to the agreement to discriminate, when purchasing or selling products, against an enterprise not being a party to the agreement in a way that causes difficulties to this enterprises in consuming products;

b. Purchasing, selling products or services at a price sufficient for rendering an enterprise not being a party to the agreement unable to expand its business operation.

Article 20. Agreements on elimination from the market of enterprises not being parties to the agreements

Agreements on elimination from the market of enterprises not being parties to the agreement is an agreement not to enter into transactions with enterprises not being parties to the agreement while taking concerted practices in a form specified at Point a, Clause 1 and Clause 2, Article 19 of this decree, or to purchase or sell products or services at a price sufficient for rendering such enterprises to withdraw from the relevant market.

Article 21. Collusion to help one or all of the parties to an agreement to win bids for supply of products or provision of services

Collusion to help one or all of the parties to an agreement to win bids for supply of products or provision of services is an agreement to take concerted practices in one of the following forms in a biding:

1. One or more parties to an agreement withdraw from participating in the bidding or retract their bids already submitted so that one or more parties to the agreement win the bid.

2. One or more parties to an agreement cause difficulties to non-parties to the agreement which participate in a bidding, by refusing to supply raw materials or to sign subcontracts or otherwise.

3. All parties to an agreement agree to offer non-competitive bids or competitive bids accompanied with conditions unacceptable to the bid inviter so as to pre-determine one or more parties that will win the bid.

4. All parties to an agreement pre-determine the number of times each party will win the bid for a given period of time.

5. Other acts prohibited by law.

Section 4. A BUSE OF DOMINANT MARKET POSITION, ABUSE OF MONOPOLY POSITION

Article 22. Grounds for determining the capability of enterprises to significantly restrict competition on relevant markets.

The capability of an enterprise to significantly restrict competition on a relevant market shall be determined on one or some of the following major grounds:

1. Financial capability of the enterprise.

2. Financial capability of the economic organization or individual that has established the enterprise.

3. Financial capability of the organization or individual that has the right to control or dominate the operation of the enterprise according to the provisions of law or the enterprises charter.

4. Financial capability of the parent company.

5. Technological capability.

6. The right to own or use industrial property objects.

7. The scope of the distribution network.

Article 23. Sale of products, provision of services below total costs of production in order to eliminate competitors

1. Except for cases specified in Clause 2 of this Article, the sale of products or provision of services below total costs of production in order to eliminate competitors is the sale of products or provision of services at prices lower than the aggregate of the following costs:

a. Expenses constituting cost of production of products or services as provided for in Article 24 of this Decree, or prices of purchasing goods for resale;

b. Costs of circulation of products or services as provided in Article 25 of this Decree.

2. The following acts shall not be regarded as selling products below costs of production in order to eliminate competitors:

a. Reducing the prices of fresh, live products;

b. Reducing the selling prices of products in stock which are deteriorated in quality, obsolete in form and no longer suitable to consumer staste;

c. Reducing the selling prices of products on a seasonal basis;

d. Reducing the selling prices of products under promotion programs according to the provisions of law;

e. Reducing the selling prices in case of bankruptcy, dissolution, termination of production, business activities, relocation, change of production, business orientations;

f. Measures applied by the State to implement price stabilization policies in accordance with current provision of law on prices.

3. In cases of reducing selling prices specified in Clause 2 of this Article, old prices, new prices and the period when reduced prices are applied must be publicly and clearly posted up at shops and transaction places.

Article 24. Costs of production of products or services

Cost of production of products or services include the following direct expenses:

1. Direct costs of supplies, including costs of raw materials, materials, fuels and motive force directly consumed for production of products or services of the enterprise.

2. Direct costs of labor, including amounts payable to laborers personally engaged in production, such as salaries, wages and allowances of salary nature, expenses for mid-working shift meals, social insurance and medical insurance premiums, trade union dues for workers.

3. General costs of production, including general costs arising at workshops and business sections of the enterprise, such as salaries, allowances, mid-working shift meals money paid to workshop employees, costs of materials, tools and instruments of production used in workshops, depreciation of fixed assets, expenses for the lease of workshops, expenses for services for service purchased from outside, and cash expenses other than the aforesaid expenses.

Article 25. Costs of circulation of products and services

Cost of circulation of products and services shall cover the following costs arising from the the process of product consumption or service provision:

1. Salaries.

2. Allowances payable to salespersons.

3. Agent commissions, broker commission.

4. Marketing.

5. Packaging.

6. Wrapping.

7. Transportation.

8. Preservation.

9. Depreciation of fixed assets.

10. Materials.

11. Tools, utensils.

12. Loading and unloading of products.

13. Services purchased from outside.

14. Social insurance premiums, medical insurance premiums, trade union dues payable for salespersons according to the provisions of law.

15. Interests on business loans.

16. Enterprise management expenses allocated to the circulation of products, services.

17. Product warranty expenses.

18. Advertisement expenses.

19. Other cash expenses according to the provisions of law.

Article 26. Enterprise management expense.

Enterprise management expense is the sum of business management expenses, administrative management expenses and other general expenses related to activities of the whole enterprise, including:

1. Salaries and allowances, mid-working shift meal money payable to the directorate and managerial staff in different sections and units, insurance premiums and trade union dues payable for all managerial personnel of the enterprise.

2. Costs of office supplies, depreciation of fixed assets commonly used for the enterprise, taxes, fees and expenses for services purchased from outside for the enterprises office, and other cash expenses for the whole enterprise as follows:

a. Provisions for bad debts, provisions for decreases in the prices of goods in stock, audit charge, expenses for receptions, celebrations, working mission allowances, severance allowances for laborers; expenses for scientific research, research for technology renewal, expenses for innovations, expenses for training to raise job skills for workers, training in managerial capability.

b. Healthcare expenses for laborers;

c. Expenses for environmental protection;

d. Expenses for female laborers;

e. Expenses for enterprise guard.

3. Payment of loan interests.

Article 27. Imposition of irrational purchase prices, sale prices of products or services or fixing of minimum re-sale prices causing damage to customers

1. Acts of imposing purchase prices of products or services shall be regarded as irrational, causing damage to customers if purchase prices imposed on the same relevant market are lower than the cost of production of products or services under the following conditions:

a. The quality of products or services for which purchase orders are placed is not inferior than that of previously purchased products or services;

b. There was no economic crisis, natural calamity, enemy sabotage or abnormal fluctuation that caused the wholesale price of provision of the service on the relevant market to fall under the costs of production within the minimum period of 60 consecutive days, compared to before.

2. Acts of imposing sale prices of products or services shall be regarded as irrational, causing damage to customers if the demand for such products or services sees no sudden increase in excess of the design capacity or production capacity of the enterprise and the following conditions are satisfied:

a. The average retail price on the same relevant market within the minimum period of 60 consecutive days has been increased more than 5% or increase exceeding 5% compared with the actual sale price before such minimum period of time;

b. There is no abnormal fluctuation resulting in an increase of more than 5% in the costs of production of the product or service concerned within the minimum period of 60 consecutive days before the price is increased.

3. Fixing the minimum resale price, causing damage to customers, is an act of prohibiting distributors and retailers to resell products at a price lower than the pre-fixed price.

Article 28. Restriction of production, distribution of products, services, limitation of markets, obstruction of technical and technological developments, causing damage to customers

1. Restriction of the production or distribution of a product or service, causing damage to customers is an act of:

a. Cutting or reducing the volume of a product or service supplied on the relevant market compared to the previously supplied volume of the product or service while there is no significant fluctuation in the demand-supply relation; there is no economic crisis, natural calamity or enemy sabotage; there is no big technical incident; or there is no state of emergency;

b. Fixing the supplied volume of a product or service at a level sufficient for creating a scarcity on the market;

c. Stockpiling the product to destabilize the market.

2. Limitation of the market, causing damage to customers is an act of:

a. Supplying a product or service only within one or some certain geographical areas;

b. Buying a product or service only from one or some certain supplying sources, except for the case where other supplying sources fail to meet reasonable conditions imposed by the buyer in conformity with normal practices.

3. Obstruction of technological developments, causing damage to customers is an act of:

a. Buying an innovation, utility solution or industrial design for destruction or non-use;

b. Threatening or compelling those who are doing a research for technical or technological developments to stop or cancel such research.

Article 29. Imposition of different trading conditions under similar transaction conditions in order to create unfair competitions

Imposition of different trading conditions under similar transaction condition in order to create unfair competition is an act of discriminating against enterprises regarding purchase or sale conditions, price, payment deadline and quantity in transactions of purchasing or selling products or services which are similar in value or characteristics so as to place one or some enterprises in a competition position more advantageous than other enterprises.

Article 30. Imposition of conditions on other enterprises to sign contracts for purchase or sale of products or services or forcing of other enterprises to accept obligations not directly related to the objects of contracts

1. Imposition of conditions on other enterprises to sign contracts for purchase or sale of products or services is the imposition of the following pre-conditions before signing contract:

a. Restrictions on production or distribution of other products; purchase or provision of other services not directly related to the commitments of the agents according to the provisions of law on agency;

b. Restrictions on places for resale of products, except for goods on the list of those subject to business conditions, goods subject to restricted business according to the provisions of law;

c. Restrictions on customers that buy products for resale, except for goods stated at Point b of this Clause;

d. Restrictions on the form and quantity of products allowed to be supplied.

2. Forcing of other enterprises to accept obligations not directly related to the object of the contract is an act of linking the purchase or sale of a product or service being the object of the contract with the compulsory purchase of another product or service from a designated supplier or person or with the performance of one or more obligations beyond the necessary scope of performing the contract.

Article 31. Prohibition of new competitors from entering the market

Prohibition of new competitors from entering the market is an act of creating the following barriers:

1. Requesting ones customers not to enter into transactions with new competitors.

2. Threatening or forcing distributors and retail shops not to distribute products of new competitors.

3. Selling products at a price sufficient for rendering competitors unable to enter the market, which, however, does not fall into the case specified in Article 23 of this Decree.

Article 32. Imposition of unfavorable conditions on customers by enterprises having monopoly positions

Imposition of unfavorable conditions on customers by enterprises having monopoly positions is an act of forcing customers to unconditionally accept obligations causing difficulties to customers in the process of performing contracts.

Article 33. Abuse of monopoly position to unilaterally modify or cancel signed contrasts without plausible reasons

Abuse of monopoly position to unilaterally modify or cancel signed contracts without plausible reasons is an act performed by an enterprise holding a monopoly position in one of the following forms:

1. Unilaterally modifying or canceling signed contracts without having to notify in advance customers thereof and without facing any penalty.

2. Unilaterally modifying or canceling signed contracts on the basis of one or more grounds not related to the conditions necessary for the continued performance of the contract, without facing any penalty.

Section 5. ECONOMIC CONCENTRATIONS

Article 34. Control or domination of all or one of trades of other enterprises

Control or domination of all or one of trades of other enterprises as provided for in Clause 3, Article 17 of the Competition Law is the case where an enterprise (hereinafter referred to as controlling enterprise) acquires the right to own the assets of another enterprise (hereinafter referred to as controlled enterprise) which is sufficient for holding over 50% of the voting right in the shareholders congress or the management board or is at a level which, as provided for by law or the controlled enterprises charter, is sufficient for the controlling enterprise to dominate financial policies as well as the operation of the controlled enterprise for the purpose of obtaining economic benefits from business operations of the controlled enterprise.

Article 35. Acquisition of other enterprises which is not regarded as economic concentration

1. The case where an insurance enterprise or a credit institution acquires another enterprise for the purpose of resale within the maximum period of one year shall not be regarded as economic concentration if the acquiring enterprise does not exercise the right to control or dominate the acquired or only exercises this right in a compulsory manner in order to achieve the resale purpose.

2. The insurance enterprise or credit institution stated in Clause 1 of this Article must send to the competition-managing agency an acquisition notification dossier with the contents specified in Clause 1, Article 21 of the Competition Law.

3. The time limit for resale of enterprises specified in Clause 1 of this Article may be extended by the head of the competition-managing agency at the proposal of the acquiring enterprise if it proves that it cannot resell the acquired enterprise within one year.

Article 36. Enterprises in danger of dissolution or falling into bankruptcy

1. An enterprise in danger of dissolution is an enterprise which falls into the case of dissolution as provided for by law or its charter but has not yet carried out dissolution procedures but a dissolution decision has not yet been issued by a competent agency according to the provisions of law.

2. An enterprise falling into bankruptcy is an enterprise as provided for by the Bankruptcy Law.

Article 37. Financial statements in economic concentration notification dossiers for newly established enterprises which have carried out business activities for less than one fiscal year

Financial statements in an economic concentration notification dossier of an enterprise joining an economic concentration which is newly established and has carried out business activities for less than one fiscal year may be substituted with the following documents:

1. Written declaration of the charter capital, fixed assets, movable assets and amounts due to it, with the certification of an independent audit organization according to the provisions of law.

2. Written declaration of taxes paid within the period from the time the enterprise starts operation to the time one month before the enterprise is required to make financial statements for notifying the economic concentration.

Article 38. Replies to economics-concentration notifications

1. Replies to economics-concentration notifications shall be issued in writing.

2. The competition-managing agencys written replies to economic-concentration notifications must be addressed to the following:

a. The business registration agency and other agencies competent to permit merger, consolidation, acquisition or joint venture according to the provisions of law;

b. Lawful representatives of the parties to economic concentrations;

c. Parties to economic concentrations.

Section 6. PROCEDURES FOR IMPLEMENTATION OF EXEMPTIONS

Article 39. Financial statements in exemption application dossiers for newly established enterprises which have carried out business activities for less than one fiscal year

For newly established enterprise which have carried out business activities for less then one fiscal year, financial statements in their exemption application dossiers may be substituted with the following documents:

1. Documents stated in clause 1, Article 37 of this Decree.

2. Written declaration of taxes paid within the period from the time the enterprise starts operation to the time one month before the date of making of the exemption application.

Article 40. Explanatory reports in exemption application dossiers.

1. Explanatory reports on the satisfaction of conditions for exemption specified in clause 1, Article 10 and Clause 2, Article 19 of the Competition Law must be expressed in the form of feasibility study schemes conducted or evaluated by scientific and technological organizations or research and development organizations established under the June 9,2000 Law on science and Technology.

2. Explanatory reports on the satisfaction of conditions for exemption specified in clause 1, article 19 of the Competition Law must prove that one or more parties to economic concentrations are in danger of dissolution of falling into bankruptcy in accordance with the provisions of article 36 of this Decree.

Article 41. Responsibility for evaluating exemption application dossiers

1. Where an economic concentration falls within the scope of the exemption-granting competence of the Trade Minister, the competition-managing agency shall have to evaluate the exemption application dossier and submit it to the Trade Minister for decision on the grant of exemption within the time limit specified in Clause 1 and 2, Article 34 of the Competition Law.

2. Where an economic concentration falls within the scope of the exemption-granting competence of the Prime Minister, the competition-managing agency shall have to evaluate the exemption application dossier and propose the Trade Minister to send a written request to concerned ministries, ministerial-level agencies, Government attached agencies, other agencies and organizations for their opinions on this case within 50 days as from the date of receipt of the complete dossier. For complicated cases, this time limit shall be 100 days.

Within 15 days as from the date of receipt of the written request from the Trade Ministry for opinions on the exemption application case, the consulted agencies and organizations shall have to study and send their opinions in writing to the competition-managing agency.

Within 15 days as from the date of receipt of the opinions of the consulted agencies and organizations, the competition-managing agency must sum up these opinions and prepare a draft evaluation document for the Trade Minister to submit it to the Prime Minister for consideration and decision.

Article 42. Principal contents of documents on evaluation of exemption application dossiers

A document on the evaluation of an exemption application dossier shall contain the following principal contents:

1. The consistency of the explanatory report with the satisfaction of conditions for exemption for a given period.

2. Issues on which opinions remain divergent and solutions.

3. Proposals of the competition-managing agency or the Trade Minister regarding the case of economic concentration falling within the exemption-granting competence of the Prime Minister.

Article 43. Publication of decisions on grant off exemptions

Within seven working days as from the date of issuance of decisions on the grant of exemptions, the competition-managing agency shall have to publicize them in all the following forms:

1. Posting them up at its head office.

2. Announcing them on the mass media.

Article 44. Errors not regarded as frauds in exemption application dossiers

Errors which shall not be regarded as frauds in exemption application stated at Point a, Clause 2, article 37 of the Competition Law shall include spelling mistakes, typing mistakes and printing mistakes which are not related to financial statement figures and do not alter the principal contents of the explanatory reports in the exemption application dossiers.