Chương 1 Nghị định 120/2005/NĐ-CP : Những quy định chung

CHAPTER I

GENERAL PROVISIONS

Article 1 Governing scope

1. This Decree provides for dealing with organizations and individuals committing intentional or unintentional breaches of the provisions of the laws on competition.

2. Conduct in breach of the laws on competition as stipulated in this Decree comprises:

(a) Conduct in breach of the provisions on control of practices in restraint of competition, including conduct in breach of the provisions on agreements in restraint of competition, on abuse of dominant market position and monopoly position, and on economic concentration;

(b) Conduct in breach of the provisions on unfair competitive practices;

(c) Conduct in breach of other provisions of the laws on competition.

Article 2 Applicable entities

This Decree shall apply to the following organizations and individuals:

1. Organizations and individuals conducting business (hereinafter referred to as enterprises) and industry associations operating in Vietnam (hereinafter referred to as associations) as stipulated in article 2 of the Law on Competition.

2. Other organizations and individuals conducting the practices stipulated in Section 5 of Chapter II of this Decree.

Article 3 Principles for dealing with breaches of laws on competition

1. Dealing with conduct in breach of the provisions on control of practices in restraint of competition must comply with the following principles:

(a) Any offence must be identified promptly and dealt with expeditiously, justly and thoroughly; and the consequences arising from the offence must be rectified correctly as stipulated by law;

(b) Dealing with breaches must comply with the order and procedures for competition legal proceedings stipulated in Chapter III of Decree 116-2005-ND-CP of the Government dated 15 September 2005 providing detailed regulations for implementation of a number of articles of the Law on Competition, and with the provisions in this Decree;

(c) Only persons authorized to deal with offences may do so and they must deal with offences correctly in accordance with the authority conferred on them by law;

(d) Any one breach of the laws on competition shall only be penalized once; an enterprise which commits a number of breaches shall be penalized in respect of each breach;

(dd) If a breach contains indications of a criminal offence, it shall not be dealt with pursuant to the provisions in this Decree.

2. Dealing with acts which constitute unfair competitive practices must comply with the principles stipulated in clause 1 of this article and in article 3 of the Ordinance on Dealing with Administrative Offences.

3. Dealing with conduct in breach of other provisions of the laws on competition must comply with the principles stipulated in article 3 of the Ordinance on Dealing with Administrative Offences.

Article 4 Forms of penalty which may be imposed for breaches of laws on competition

1. The forms of penalty which may be imposed for breaches of the laws on competition shall comprise fines and other measures for remedying consequences.

2. For each breach of the laws on competition, one of the following principal penalties must be imposed on an organization or individual in breach:

(a) Warning;

(b) Fine.

3. Depending on the nature and seriousness of a breach, one of the following additional forms of penalty may be imposed on an organization or individual in breach of the laws on competition:

(a) Withdrawal of business registration certificate, revocation of right to use a licence or practising certificate;

(b) Confiscation of material evidence and facilities used to commit the breach of the laws on competition.

4. In addition to the forms of penalty stipulated in clauses 2 and 3 of this article, one or more of the following measures for remedying consequences may also be applied to an organization or individual in breach of the laws on competition:

(a) Restructure of an enterprise which abused its dominant market position;

(b) Division or split of an enterprise which merged or consolidated; compulsory re-sale of that part of an enterprise which was acquired;

(c) Public retraction;

(d) Removal of illegal terms and conditions from a contract or business transaction;

(dd) Compulsory use or re-sale of inventions, utility solutions or industrial designs which were purchased but not used;

(e) Compulsory removal of measures which prevent or impede other enterprises from participating in the market or from developing business;

(g) Compulsory restoration of conditions for technical or technological development which an enterprise impeded;

(h) Compulsory removal of disadvantageous conditions imposed on customers;

(i) Compulsory restoration of contractual conditions which were changed without any legitimate reason;

(k) Compulsory restoration of a contract which was cancelled without any legitimate reason.

Article 5 Levels of fines applicable to breaches of laws on competition

1. With respect to a breach of the provisions on control of practices in restraint of competition, the body with authority to deal with the breach shall impose a fine at the specific levels stipulated in Sections 1, 2 and 3 of Chapter II of this Decree but the maximum fine shall be ten (10) per cent of the total turnover of the enterprise in breach in the financial year preceding the year in which the breach was committed.

If the enterprise in breach is newly established and has not yet operated for a full financial year, "total turnover for the financial year prior to the year in which the breach was committed" as stipulated in this clause means the total turnover of the enterprise as from the date of establishment until the date of issuance of the decision to hold an official investigation into the practice in breach.

2. With respect to unfair competitive practices and conduct in breach of other provisions of the laws on competition outside the cases stipulated in clause 1 of this article, the body with authority to deal with the breach shall impose a fine at the specific levels stipulated in Sections 4 and 5 of Chapter II of this Decree.

Article 6 Compensation for loss caused by breach of laws on competition

1. Any organization or individual breaching the laws on competition, thereby causing loss to the interests of the State or to the lawful rights and interests of other organizations and individuals, must pay compensation for such loss.

2. Payment of compensation for loss as stipulated in clause 1 of this article shall be implemented in accordance with the civil law.

Article 7 Grounds for fixing levels of penalties applicable to breaches of laws on competition

When fixing the level of a penalty applicable to each breach of the laws on competition, the competent body shall have the right to rely on one or more of the following factors:

1. Level of restraint of competition caused by the practice in breach.

2. Amount of loss caused by the practice in breach caused.

3. Capability of the entity in breach to restrain competition.

4. Period of time during which the practice in breach occurred.

5. Profits gained as a result of the practice in breach.

6. Attenuating or aggravating circumstances as stipulated in article 8 of this Decree.

Article 8 Extenuating and aggravating circumstances

1. With respect to any practice in breach of the provisions on control of practices in restraint of competition and on unfair competitive practices, the body with authority to deal with the breach may apply the extenuating and aggravating circumstances stipulated in Section 6 of Chapter III of Decree 116-2005-ND-CP of the Government dated 15 September 2005 providing detailed regulations for implementation of a number of articles of the Law on Competition.

2. With respect to any practice in breach of other provisions of the laws on competition, the body with authority to deal with the breach may apply the extenuating and aggravating circumstances stipulated in articles 8 and 9 of the Ordinance on Dealing with Administrative Offences.

Article 9 Limitation period for lodging complaint about competition case and limitation period for issuance of decision to investigate when administrative body for competition discovers indications of breach of laws on competition

1. The limitation period for lodging a complaint about a competition case and the limitation period for issuance of a decision to investigate when the administrative body for competition discovers indications of a breach of the laws on competition stipulated in article 65.2 of the Law on Competition is two years from the date on which the breach is committed.

2. If during the period stipulated in clause 1 of this article an organization or individual commits a new breach of the laws on competition, or deliberately evades or prevents the breach being dealt with by the competent body, the limitation period stipulated in clause 1 of this article shall be re-calculated from the date on which the new breach is committed or from the date of termination of the conduct to evade dealing with the breach or to prevent the breach being dealt with.