Chương IV Nghị định 35/2020/NĐ-CP : Xác định sức mạnh thị trường đáng kể

Chapter IV

DETERMINATION OF SIGNIFICANT MARKET POWER

Article 12. Subject matters of determination of significant market power of enterprises and groups of enterprises

1. National Competition Commission shall conduct determination of significant market power of enterprises and groups of enterprises prescribed in Article 26 in the Competition Law, based on one or several elements, including:

a) Market share correlation between enterprises in the relevant market which is assessed based on comparison of market share between enterprises and groups of enterprises in the relevant market;

b) Financial strength and size of enterprises or groups of enterprises. This element is assessed based on such criteria as financial competencies and accessibility to funds, loans and other financial sources, total capital, assets, total personnel, production scale, networks for distribution and consumption of products and services of these enterprises or groups of enterprises which are correlated to those of their competitors; 

c) Market entry or expansion barriers to other enterprises. This element is assessed based on factors affecting decisions of enterprises upon market entry or expansion under Article 8 herein;

d) Likelihood of holding, accessing and controlling product or service distribution and consumption markets or sources of product and service supply. This element is assessed based on advantages of enterprises or groups of enterprises in comparison to those of their competitors owing to the holding and controlling of networks for distribution and consumption of products and services, or sources of product or service supply in the market;

dd) Technological and technical infrastructure advantages of enterprises or groups of enterprises. This element is assessed based on technological and technical infrastructure advantages of enterprises or groups of enterprises that are keeping ownership of or using them for production and business purposes in comparison to their competitors;

e) Rights to own, hold and access infrastructure. This element is assessed for the purpose of determination of advantages of enterprises or groups of enterprises in comparison to those of their competitors, based on the degree of significance of and accessibility to infrastructure used for the purposes of production and business of products and services;

g) Rights to own and use subject matters protected by intellectual property rights. This element is assessed for the purpose of determination of advantages of enterprises or groups of enterprises in comparison to those of their competitors, based on the degree of significance of and accessibility to subject matters protected by intellectual property rights during their production and business of products and services;

h) Likelihood of switching to sources or supply or demand with respect to other products and services. This element is assessed based on costs and time that consumers or enterprises require to switching to products and services of other enterprises in the same relevant market;

i) Particular factors in sectors or industries where enterprises or groups of enterprises are performing their business activities. This element is assessed for determination of advantages of enterprises or groups of enterprises in comparison to those of their competitors under sector or industry-specific conditions.

2. In the process of determination of significant market power of an enterprise or a group of enterprises, National Competition Commission shall have the right to consult with relevant authorities, entities and persons, and require enterprises to provide necessary information and documents.