Chapter II
DETERMINATION OF RELEVANT MARKET AND MARKET SHARE
Section 1. DETERMINATION OF RELEVANT MARKET
Article 3. Relevant market
1. A relevant market is defined as an inclusion of a relevant product market and a relevant geographic market.
2. While identifying the relevant market, National Competition Commission shall be entitled to consult with business sector or industry administrations, specialized entities and persons.
Article 4. Determination of the relevant product market
1. The relevant product market is the market where products and services that are regarded as interchangeable or substitutable in terms of their characteristics, uses and prices are sold.
2. Products and services will be regarded as interchangeable or substitutable if they are identical or homogeneous in terms of one or several elements as follows:
a) Their characteristics;
b) Their composition;
c) Their physical and chemical properties;
d) Their technical functions;
dd) Their side effects on users;
e) User’s absorbability;
g) Other specific attributes and qualities.
3. Products and services will be regarded as interchangeable or substitutable in terms of their uses if their main uses are identical.
4. Products and services will be regarded as interchangeable or substitutable in terms of their prices if the percent difference in these prices is not over 5% under similar transactional conditions. If the percent difference is more than 5%, National Competition Commission may identify products and services regarded as interchangeable or substitutable in terms of their prices by taking into consideration several additional elements referred to in clause 5, or by employing determination methods specified in clause 6 of this Article.
5. In case where determining whether products and services have properties and attributes that prove their interchangeability or substitutability as provided in clause 2, 3 and 4 of this Article gives insufficient evidence for the conclusion about the relevant product market, National Competition Commission shall additionally take into consideration one or several elements as follows:
a) Rate of demand-side substitution of a product or service in case of any change in price of another product or service that takes place;
b) Required costs and time that a consumer spends on buying or using another substitute product or service;
c) Useful lifespan of products or services;
d) Consumption habits;
dd) Law affecting substitutability of products and services;
e) Distinguishability in terms of buying and selling prices between different consumer groups;
g) Supply-side substitutability of a product or service prescribed under Article 5 herein.
6. Where necessary, National Competition Commission can determine the price-related substitutability of products or services by using the following methods:
Products or services will be regarded as interchangeable or substitutable in terms of their prices if at least 35% of a random sample of 1,000 consumers living in relevant geographic regions buys or intends to buy other products or services whose qualities, attributes or uses are similar to those that they are using, or intends to use them in the event of the 10 percent increase in their prices in a continuous manner in 6 consecutive months.
If the number of consumers living in the relevant geographic region as mentioned in this paragraph is not 1,000 persons, the acceptable random sample may be at least 50% of total population of consumers living in that geographic region.
Article 5. Determination of supply-side substitutability
Supply-side substitutability will be defined as the capacity for increase in output volume and sales of enterprises currently manufacturing or trading a product or service, or the commencement or switch of production or trading of that product or service of other enterprises for less than 6 months without any significant increase in product or service costs if increase in its price falls within the range between 5% and 10%.
Article 6. Determination of the relevant product market in special cases
1. A relevant product market in a special case may be defined as the market of a single particular product or service, or a group of particular products and services identified owing to their particular qualities and characteristics, consumption habits or transactional approaches, including information technology-driven transactions.
2. While determining the relevant product market in the case specified in clause 1 of this Article, an additional attention should be paid to the market of products or services supporting relevant products.
3. Products supporting relevant products are products or services used with the aim of improving functions and effectiveness, or necessary for use, of relevant products. This means that, if the price of a supporting product is increased or decreased, then total demand for other relevant product will be decreased or increased as well.
Article 7. Determination of the relevant geographic market
1. A relevant geographic market is a specific geographical area where available products or services are interchangeable or substitutable under similar competition conditions which are significantly distinguished from those conditions existing within neighboring geographic areas.
2. Boundaries of geographic areas prescribed in clause 1 of this Article may be defined by the following elements:
a) Geographic areas that accommodate business establishments of enterprises participating in distribution of relevant products and services;
b) Business establishments of other enterprises that are located within neighboring geographic areas close enough to the geographical areas prescribed in point a of this clause to the extent that they are able to take part in competition with relevant products and services available within these areas;
c) Shipping costs of products and services;
d) Shipping time length of products and services;
dd) Barriers to market entry and expansion;
e) Consumption habits;
g) Required costs and time that consumers spend on buying or using these products and services;
3. A geographical region is regarded as having conditions similar to and considerably distinguishable from relevant geographical areas if it meets one of the following criteria:
a) Shipping costs and time constituting the price of a product or service may be increased by 10% at maximum;
b) One of barriers to market entry and expansion stated in Article 8 herein exist.
Article 8. Barriers to market entry and expansion
Barriers to market entry and expansion shall comprise the followings:
1. Legislative barriers that are created by regulatory and policy frameworks, including regulations on import and export duties and quotas; national technical regulations; mandatory requirements and procedures for production and business of products and services; regulations on use of products and services; specialized standards and other administrative decisions of state regulatory authorities.
2. Financial barriers, including input costs of products and services, enterprise’s accessibility to funds, loans and other capital, credit facilities and financing sources.
3. Initial costs of entry into a market that an enterprise can recover upon market exit.
4. Barriers to access to or keep hold on sources of supply or essential infrastructure for production and business activities; networks for distribution and sale of products and services.
5. Consumption habits.
6. Business practices and customs.
7. Barriers related to exercise of intellectual property rights of organizations and individuals, including author’s rights and other rights pertaining to author’s rights, industrial property rights and plant variety rights under laws on intellectual property rights.
8. Other barriers to market entry and expansion.
Section 2. DETERMINATION OF MARKET SHARE
Article 9. Principles of determination of an enterprise's share of a relevant market
1. An enterprise’s share of a relevant market shall be determined according to methods specified in Article 10 in the Competition Law.
2. While identifying market share, National Competition Commission may consult with business sector or industry administrations, endorsed enterprises, qualified entities and persons.
Article 10. Determination of market share of affiliated companies
1. Sales and purchase volume, and quantity of units of a particular product and service sold or purchased of affiliated companies, shall be determined as follows:
a) Sales and purchase volume, and quantity of units of a particular product and service sold or purchased, which are meant for determination of market share of a group of affiliated companies, shall be calculated by the summation of all of these measurements of all enterprises belonging to this group;
b) Sales and purchase volume, and quantity of units of a particular product and service sold or purchased of a group of affiliated companies shall exclude sales and purchase volume, and quantity of units of a particular product and service sold or purchased which arise from sale of products and supply of services amongst this group's member companies.
2. Market share of affiliated companies in the group shall be defined as the market share of the entire group.
Tìm kiếm
Nghị định 35/2020/NĐ-CP (Bản Word)
Nghị định 35/2020/NĐ-CP (Bản Pdf)
