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THE
NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence Freedom Happiness
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No.
27/2004/QH11
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Hanoi, December 03rd,
2004
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LAW
ON COMPETITION
Pursuant to the 1992 Constitution of the
Socialist Republic of Vietnam as amended and added to by Resolution
51-2001-QH10 passed by Legislature X of the National Assembly at its 10th
Session on 25 December 2001;
This Law governs competition.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of
governance
This Law governs practices in restraint of
competition, unfair competitive practices, the order and procedures for
resolution of competition cases, and measures for dealing with breaches of the
laws on competition.
Article 2. Applicable
entities
This Law shall apply to:
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2. Industry associations operating in Vietnam.
Article 3.
Interpretation of terms
In this Law, the following terms shall be
construed as follows:
1. Relevant market consists of relevant product
market and relevant geographical market.
Relevant product market means a market
comprising goods or services which may be substituted for each other in terms
of characteristics, use purpose and price.
Relevant geographical market means a specific
geographical area in which goods or services may be substituted for each other
with similar competitive conditions and which area is significantly different
from neighbouring areas.
2. Industry associations consist of trade
associations and professional associations.
3. Practices in restraint of competition means
practices of enterprises which reduce, distort or hinder competition in the
market, including practices being agreements in restraint of competition, abuse
of dominant market position, abuse of monopoly position and economic
concentration.
4. Unfair competitive practices means
competitive practices by an enterprise during the business process which are
contrary to general standards of business ethics and which cause or may cause
damage to the interests of the State and/or to the legitimate rights and
interests of other enterprises or of consumers.
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6. Combined market share means the total market
share in the relevant market of the enterprises participating in an agreement
in restraint of competition or in an economic concentration.
7. Total prime cost of goods and services
comprises:
(a) Prime cost of producing products and
services; prime cost of purchasing goods;
(b) Expenses of circulating goods and services
to consumers.
8. Competition cases means cases with an indication
of a breach of this Law which are investigated by the competent State body and
dealt with in accordance with the provisions of law.
9. Competition legal proceedings means
activities of bodies, organizations and individuals in accordance with the
order and procedures for resolving and/or dealing with competition cases in
accordance with the provisions of this Law.
10. Business secret means information which
satisfies all of the following conditions:
(a) It is not common knowledge;
(b) It is able to be applied in business and
when used will create an advantage for the information holder over an entity
which does not have or use such knowledge;
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11. Multi-level selling of goods means a
marketing method in order to conduct a retail sale of goods which satisfies the
following conditions:
(a) Marketing in order to conduct a retail sale
of goods is implemented via a network of participants comprising a number of
different levels and branches;
(b) A participant markets goods directly to a
consumer at the residence or working location of the consumer or at some other
place which is not the regular retail sales location of the enterprise or
participant;
(c) A participant in the network for multi-level
selling of goods will receive commissions, bonuses or other economic benefits
from the results of marketing sales of goods by himself or herself and by other
persons below the participant in the network organized by such participant and
approved by the enterprise engaged in multi- level selling of goods.
Article 4. Right to
compete in business
1. All enterprises shall be entitled to compete
freely within the framework of the law. The State shall protect the right to
compete lawfully in business.
2. Competition must be undertaken on the
principles of honesty; non- infringement of the interests of the State, the
public interest, and the lawful rights and interests of enterprises and
consumers; and compliance with the provisions of this Law.
Article 5. Application
of this Law, other relevant laws and international treaties
1. Where there is any difference between the
provisions of this Law and the provisions of another law with respect to a
practice in restraint of competition or unfair competitive practice, the
provisions of this Law shall apply.
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Article 6. Practices of
State administrative bodies which are prohibited
State administrative bodies shall not be
permitted to perform the following acts in order to hinder competition in the
market:
1. Force an enterprise, organization or
individual to purchase or sell goods or services with an enterprise appointed
by such body, except for goods and services belonging to State monopoly sectors
or in cases of emergency as stipulated by law;
2. Discriminate between enterprises;
3. Force industry associations or enterprises to
associate with each other aimed at excluding, restraining or hindering other
enterprises from competing in the market;
4. Other practices which hinder the lawful
business activities of enterprises.
Article 7.
Responsibility for State administration of competition
1. The Government shall exercise uniform State
administration of competition.
2. The Ministry of Trade shall be responsible
before the Government for the exercise of State administration of competition.
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Chapter II
CONTROL OF PRACTICES IN
RESTRAINT OF COMPETITION
Section 1. AGREEMENTS IN
RESTRAINT OF COMPETITION ARTICLE 8 AGREEMENTS IN RESTRAINT OF COMPETITION
AGREEMENTS IN RESTRAINT OF COMPETITION SHALL COMPRISE:
1. Agreements either directly or indirectly
fixing the price of goods and services;
2. Agreements to share consumer markets or
sources of supply of goods and services;
3. Agreements to restrain or control the
quantity or volume of goods and services produced, purchased or sold;
4. Agreements to restrain technical or
technological developments or to restrain investment;
5. Agreements to impose on other enterprises
conditions for signing contracts for the purchase and sale of goods and
services or to force other enterprises to accept obligations which are not
related in a direct way to the subject matter of the contract;
6. Agreements which prevent, impede or do not
allow other enterprises to participate in the market or to develop business;
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8. Collusion in order for one or more parties to
win a tender for supply of goods and services.
Article 9. Prohibited
agreements in restraint of competition
1. The agreements stipulated in clauses 6, 7 and
8 of article 8 of this Law shall be prohibited.
2. The agreements in restraint of competition
stipulated in clauses 1, 2, 3, 4 and 5 of article 8 of this Law shall be
prohibited when the parties to the agreement have a combined market share of
thirty (30) per cent or more of the relevant market.
Article 10. Exemptions
for prohibited agreements in restraint of competition
1. An agreement in restraint of competition
stipulated in clause 2 of article 9 of this Law shall be entitled to exemption
for a definite period if it satisfies one of the following criteria aimed at
reducing prime costs and benefiting consumers:
(a) It rationalizes an organizational structure
or a business scale or increases business efficiency;
(b) It promotes technical or technological
progress or improves the quality of goods and services;
(c) It promotes uniform applicability of quality
standards and technical ratings of product types;
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(dd) It increases the competitiveness of medium
and small sized enterprises;
(e) It increases the competitiveness of
Vietnamese enterprises in the international market.
2. The order, procedures and duration of
exemptions shall be implemented in accordance with the provisions in Section 4
of this Chapter.
Section 2. ABUSE OF DOMINANT
MARKET POSITION AND MONOPOLY POSITION
Article 11. Enterprises
and groups of enterprises in dominant market position
1. An enterprise shall be deemed to be in a
dominant market position if such enterprise has a market share of thirty (30)
per cent or more in the relevant market or is capable of substantially
restraining competition.
2. A group of enterprises shall be deemed to be
in a dominant market position if they act together in order to restrain
competition and fall into one of the following categories:
(a) Two enterprises have a market share of fifty
(50) per cent or more in the relevant market;
(b) Three enterprises have a market share of
sixty five (65) per cent or more in the relevant market;
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Article 12. Enterprises
in monopoly position
An enterprise shall be deemed to be in a
monopoly position if there are no enterprises competing in the goods and
services in which such enterprise conducts business in the relevant market.
Article 13. Practices
constituting abuse of dominant market position which are prohibited
Any enterprise or group of enterprises in a
dominant market position shall be prohibited from carrying out the following
practices:
1. Selling goods or providing services below
total prime cost of the goods aimed at excluding competitors;
2. Fixing an unreasonable selling or purchasing
price or fixing a minimum re-selling price goods or services, thereby causing
loss to customers;
3. Restraining production or distribution of goods
or services, limiting the market, or impeding technical or technological
development, thereby causing loss to customers;
4. Applying different commercial conditions to
the same transactions aimed at creating inequality in competition;
5. Imposing conditions on other enterprises
signing contracts for the purchase and sale of goods and services or forcing
other enterprises to agree to obligations which are not related in a direct way
to the subject matter of the contract;
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Article 14. Practices
constituting abuse of monopoly position which are prohibited
Any enterprise in a monopoly position shall be
prohibited from carrying out the following practices:
1. Practices stipulated in article 13 of this
Law;
2. Imposing disadvantageous conditions on
customers;
3. Abuse of monopoly position in order to change
or cancel unilaterally a signed contract without legitimate reason.
Article 15. Control of
enterprises operating in State monopoly sectors and of enterprises engaged in
production or supply of public utility products or services
1. The State shall control enterprises which
operate in State monopoly sectors by taking the following measures:
(a) Deciding the selling price or purchasing
price of goods and services in State monopoly sectors;
(b) Deciding the quantity, volume, price and
market scope of goods and services in State monopoly sectors.
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3. When conducting business activities outside
State monopoly sectors and other than production or supply of public utility
products or services, enterprises shall not be subject to the controls
stipulated in clauses 1 and 2 of this article but shall be governed by the
other provisions of this Law.
Section 3. ECONOMIC
CONCENTRATION
Article 16. Economic
concentration
Economic concentration means conduct of
enterprises comprising:
1. Merger of enterprises;
2. Consolidation of enterprises;
3. Acquisition of an enterprise;
4. Joint venture between enterprises;
5. Other forms of economic concentration as
stipulated by law.
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1. Merger of enterprises means the transfer by
one or more enterprise(s) of all of its lawful assets, rights, obligations and
interests to another enterprise and at the same time the termination of the
existence of the merging enterprise(s)
2. Consolidation of enterprises means the
transfer by two or more enterprises of all of their lawful assets, rights,
obligations and interests to form one new enterprise and at the same time the
termination of the existence of the consolidating enterprises.
3. Acquisition of an enterprise means the
purchase by one enterprise of all or part of the assets of another enterprise
sufficient to control or govern the activities of one or all of the trades of
the acquired enterprise.
4. Joint venture between enterprises means two
or more enterprises together contribute a portion of their lawful assets,
rights, obligations and interests to form a new enterprise.
Article 18. Prohibited
cases of economic concentration
Any economic concentration shall be prohibited
if the enterprises participating in the economic concentration have a combined
market share in the relevant market of more than fifty (50) per cent, except in
the cases stipulated in article 19 of this Law or where the enterprise after
the economic concentration still falls within the category of medium and small
sized enterprises as stipulated by law.
Article 19. Cases of
exemption for prohibited economic concentration
A prohibited economic concentration as
stipulated in article 18 of this Law may be considered for exemption in the
following cases:
1. One or more of the parties participating in
the economic concentration is or are at risk of being dissolved or of becoming
bankrupt;
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Article 20.
Notification of economic concentration
1. In the case where enterprises participating
in an economic concentration have a combined market share in the relevant
market of from thirty (30) per cent to fifty (50) per cent, the legal
representative of such enterprises must notify the administrative body for competition
prior to carrying out the economic concentration.
If the enterprises participating in the economic
concentration have a combined share in the relevant market of less than thirty
(30) per cent or if, after the economic concentration, the enterprise still
falls within the category of medium and small sized enterprise as stipulated by
law, they shall not be required to provide notification.
2. Enterprises participating in an economic
concentration and entitled to exemption pursuant to article 19 of this Law
shall submit a file for request of exemption in accordance with the provisions
in Section 4 of this Chapter, instead of providing notification of the economic
concentration.
Article 21. File for
notification of economic concentration
1. A file for notification of an economic
concentration shall comprise:
(a) Written notification of the economic
concentration in the form issued by the administrative body for competition;
(b) Valid copy of the certificate of business
registration of all of the enterprises participating in the economic
concentration;
(c) Financial statements for the last two
consecutive years of all of the enterprises participating in the economic
concentration, certified by an auditing organization as stipulated by law;
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(dd) List of all types of goods and services in
which the enterprises participating in the economic concentration and their
subsidiaries are currently conducting business;
(e) Report on market share in the relevant
market of the enterprises participating in the economic concentration for the
last two consecutive years.
2. The enterprise submitting a file for
notification of an economic concentration shall be responsible for the
truthfulness of the file.
Article 22. Acceptance
of jurisdiction over file for notification of economic concentration
The administrative body for competition shall be
responsible, within a time-limit of seven working days from the date of receipt
of a file, to provide written notice to the enterprise submitting the file on
the completeness and validity of the file.
If a file is incomplete, the administrative body
for competition shall be responsible to specify what items are required to be
supplemented.
Article 23. Time-limit
for reply to notification of economic concentration
1. The administrative body for competition shall
be responsible, within a time-limit of forty five (45) days from the date of
receipt of a complete file for notification of an economic concentration, to
provide a written reply to the enterprise which submitted the file. The written
reply of the administrative body for competition must confirm that the economic
concentration belongs to one of the following categories:
(a) The economic concentration does not fall
within the prohibited category;
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2. In complex cases of economic concentration,
the head of the administrative body for competition may issue a decision
extending the time-limit for a reply as stipulated in clause 1 of this article,
but on not more than two occasions and each extension may not exceed thirty
(30) days, and there must be written notice to the enterprise which submitted
the file, specifying the reason for the extension, at least three working days
prior to expiry of the time-limit for a reply to a notification.
Article 24. Carrying
out economic concentrations
The legal representative of enterprises
participating in an economic concentration in the category required to provide
notification as stipulated in clause 1 of article 20 of this Law may conduct
procedures for the economic concentration at the authorized State body in
accordance with the laws on enterprises only after having received a written
reply from the administrative body for competition that the economic
concentration is not within the prohibited category.
Section 4. PROCEDURES FOR
OBTAINING EXEMPTION
Article 25. Authority
to make decision on exemption
1. The Minister of Trade shall consider and make
a written decision on exemptions stipulated in article 10 and clause 1 of
article 19 of this Law.
2. The Prime Minister of the Government shall
consider and make a written decision on exemptions stipulated in clause 2 of
article 19 of this Law.
Article 26. Subjects
submitting file for request of exemption
Subjects submitting a file for request of exemption
shall be the parties intending to enter an agreement in restraint of
competition or to participate in an economic concentration.
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1. Parties intending to enter an agreement in
restraint of competition or to participate in an economic concentration may
appoint a representative to conduct the procedures for request of exemption.
This appointment must be in writing and certified by all of the parties.
2. The rights and obligations of the
representative shall be agreed and regulated by the parties.
3. All of the parties shall be responsible for
the acts of the representative within the scope of authorization.
Article 28. File for
request of exemption for agreement in restraint of competition
1. A file for request of exemption for an
agreement in restraint of competition shall comprise:
(a) Application in the form issued by the
administrative body for competition;
(b) Valid copy of certificate of business
registration of each of the enterprises participating in the agreement in
restraint of competition; if an association intends to participate, the charter
of the association;
(c) Financial statements for the last two
consecutive years of each of the enterprises participating in the agreement in
restraint of competition, certified by an auditing organization in accordance
with law;
(d) Report on market share in the relevant
market for the last two consecutive years of the enterprises participating in the
agreement in restraint of competition;
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(e) Power of attorney to the representative from
all parties participating in the agreement in restraint of competition.
2. The party submitting the application file and
all of the parties participating in the agreement shall be responsible for the
truthfulness of the file.
Article 29. File for
request of exemption for economic concentration
1. A file for request of exemption for an
economic concentration shall comprise:
(a) Application in the form issued by the
administrative body for competition;
(b) Valid copy of certificate of business
registration of each of the enterprises participating in the economic
concentration;
(c) Financial statements for the last two
consecutive years of each of the enterprises participating in the economic
concentration, certified by an auditing organization in accordance with law;
(d) Report on market share in the relevant
market for the last two consecutive years of each of the enterprises
participating in the economic concentration;
(dd) Detailed explanatory report on how the
conditions for entitlement to exemption as stipulated in article 19 of this Law
are satisfied;
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2. The party submitting the application file and
all of the parties participating in the economic concentration shall be
responsible for the truthfulness of the file.
Article 30. Acceptance
of jurisdiction over file for request of exemption
1. The administrative body for competition shall
be responsible to accept jurisdiction over files for request of exemption and
to forward its opinion to the Minister of Trade for decision or to submit same
to the Prime Minister for his decision.
2. Within a time-limit of seven working days
from the date of receipt of a file for request of exemption, the administrative
body for competition shall be responsible to provide written notice to the
party which submitted the file on the completeness of the file. If a file is
incomplete, the administrative body for competition shall be responsible to
specify what items are required to be supplemented.
3. The party submitting a file must pay a fee
for evaluation of the file for request of exemption in accordance with law.
Article 31. Request to
supplement file for request of exemption
The administrative body for competition shall
have the right to require the party which submitted the file for request of
exemption to add necessary documents and information relating to the proposed
agreement in restraint of competition or economic concentration and to provide
additional explanation of any unclear matters.
Article 32. Provision
of information by related parties
1. The administrative body for competition shall
have the right to require organizations and individuals concerned to provide
information about agreements in restraint of competition and economic
concentrations over which the administrative body for competition has accepted
jurisdiction.
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Article 33. Withdrawal
of request of exemption
1. A party wishing to withdraw its request of
exemption after submission must provide written notice to the administrative
body for competition.
2. The administrative body for competition shall
not refund fees for evaluation of a file for request of exemption in the case
stipulated in clause 1 of this article.
Article 34. Time-limits
for issuance of decision
1. The Minister of Trade shall, within a
time-limit of sixty (60) days from the date of receipt of a complete file for
request of exemption, issue one of the following decisions:
(a) Agree that the parties are entitled to an
exemption;
(b) Not agree that the parties are entitled to
an exemption.
2. In complex cases, the Minister of Trade may
extend the time-limit for issuance of the decision stipulated in clause 1 of
this article, but on not more than two occasions and each extension may not
exceed thirty (30) days.
3. Where an economic concentration case falls
within the authority of the Prime Minister of the Government to grant an
exemption, the time-limit for issuance of a decision agreeing or not agreeing
to grant of exemption shall be ninety (90) days from the date of receipt of a
complete file, and one hundred and eighty (180) days in complex cases.
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Article 35. Decisions
granting exemption
1. A decision granting exemption must contain
the following main particulars:
(a) Names and addresses of the parties permitted
to carry out the practice;
(b) Contents of the permitted practice;
(c) Duration of effectiveness of the exemption,
conditions on and obligations of the parties.
2. The administrative body for competition shall
be responsible to make public any decision granting exemption in accordance
with regulations of the Government.
Article 36. Carrying
out agreement in restraint of competition or economic concentration in cases
granted exemption
1. Parties participating in an agreement in
restraint of competition which are granted exemption may perform such agreement
only after they have a decision granting exemption from the Minister of Trade.
2. The legal representative of enterprises
participating in an economic concentration which are granted exemption may
conduct procedures for the economic concentration at the authorized State body
in accordance with the laws on enterprises only after they have a decision
granting exemption from the Prime Minister of the Government or the Minister of
Trade.
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1. Any entity authorized to issue a decision
granting exemption shall also have the right to revoke such decision.
2. A decision granting exemption shall be
revoked in the following circumstances:
(a) Upon discovery of fraud during application
for exemption;
(b) When an enterprise granted exemption fails
to fulfil the conditions and discharge the obligations within the time-limit
stipulated in the decision granting exemption;
(c) When the conditions for exemption no longer
exist.
Article 38. Complaint
about granting of entitlement to exemption
Any enterprise which disagrees with a decision
granting exemption or not granting exemption or a decision revoking a decision
granting exemption shall have the right to complain in accordance with the laws
on complaints and denunciations.
CHAPTER III
UNFAIR COMPETITIVE
PRACTICES
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Unfair competitive practices in this Law
comprise:
1. Misleading instructions;
2. Infringement of business secrets;
3. Coercion in business;
4. Defamation of another enterprise;
5. Causing disruption to the business activities
of another enterprise;
6. Advertisement aimed at unfair competition;
7. Promotion aimed at unfair competition;
8. Discrimination by an association;
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10. Other unfair competitive practices
stipulated by the Government determined in accordance with the criteria
stipulated in clause 4 of article 3 of this Law.
Article 40. Misleading
instructions
1. Enterprises shall be prohibited from using
instructions which contain misleading information about commercial names,
business slogans, business logos, packaging, geographical indications and other
elements in accordance with regulations of the Government in order to mislead
customers in their understanding of goods and services for competitive
purposes.
2. Conducting business in goods and services
which use misleading instructions as prescribed in clause 1 of this article
shall be prohibited.
Article 41.
Infringement of business secrets
Enterprises shall be prohibited from conducting
the following practices:
1. Accessing or collecting information in the
category of business secret by countering the security measures taken by the
lawful owner of such business secret;
2. Disclosing or using information in the
category of business secret without permission from the lawful owner of such
business secret;
3. Breaching a confidentiality contract or
cheating or abusing the confidence of a person with an obligation to maintain
confidentiality, aimed at accessing, collecting and disclosing information in
the category of business secret of the owner of such business secret;
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Article 42. Coercion in
business
Enterprises shall be prohibited from coercing
customers or business partners of another enterprise by threatening or coercive
conduct in order to compel them not to transact or to cease a transaction with
such other enterprise.
Article 43. Defamation
of another enterprise
Enterprises shall be prohibited from defaming
another enterprise by any direct or indirect act of providing untruthful
information which adversely impacts on the reputation, financial position or
business activities of such other enterprise.
Article 44. Causing
disruption to business activities of another enterprise
Enterprises shall be prohibited from causing
disruption to the lawful business activities of another enterprise by any
direct or indirect act which hinders or interrupts the business activities of
another enterprise.
Article 45.
Advertisement aimed at unfair competition
Enterprises shall be prohibited from conducting
the following advertising activities:
1. Comparing directly their own goods and
services with those of the same type of another enterprise;
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3. Providing false or misleading information to
customers about one of the following matters:
(a) Price, quantity, quality, usage, design,
type, packaging, date of manufacture, use expiry, origin of goods,
manufacturer, place of manufacture, processor or place of processing;
(b) Manner of use, method of service, warranty
period;
(c) Other false or misleading information;
4. Other advertising activities prohibited by law.
Article 46. Promotions
aimed at unfair competition
Enterprises shall be prohibited from conducting
the following promotional activities:
1. Holding a promotion providing false
information about prizes;
2. A promotion which is untruthful or misleading
about goods and services in order to deceive customers;
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within the same promotional campaign;
4. Offering free goods to customers for trial
use but requiring exchange of goods of the same type produced by another
enterprise which the customer is currently using in order that the customer
will use the goods of the promoting enterprise;
5. Conducting other promotional activities which
are prohibited by law.
Article 47.
Discrimination by associations
Industry associations shall be prohibited from
acting as follows:
1. Refusing admission to or refusing withdrawal
from the association by any organization or individual satisfying the
conditions for admission or withdrawal, if such refusal constitutes
discriminatory treatment and places such organization or individual at a
competitive disadvantage;
2. Unreasonably restricting the business
activities or other activities involving a business objective of member enterprises.
Article 48. Illegal
multi-level selling of goods
Enterprises shall be prohibited from conducting
the following acts aimed at obtaining illegal profit from recruitment of new
participants to a multi-level sales network:
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2. Failing to undertake to re-acquire the goods
sold to the participant for re- sale at at least ninety (90) per cent of their
original price;
3. Allowing participants to receive commissions,
bonuses and/or other economic benefits essentially only from enticing other
persons to participate in the multi-level sales network;
4. Providing untruthful information about the
benefits of participation in the multi-level sales network or untruthful
information about the quality and use purpose of goods in order to entice other
persons to participate.
Chapter IV
ADMINISTRATIVE BODY FOR
COMPETITION AND COMPETITION COUNCIL
Section 1. ADMINISTRATIVE
BODY FOR COMPETITION
Article 49.
Administrative body for competition
1. The Government shall issue a decision on
establishment and shall regulate the organizational structure and staffing of the
administrative body for competition.
2. The administrative body for competition shall
have the following duties and powers:
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(b) To accept jurisdiction over files for request
of exemption; to forward its opinion to the Minister of Trade for decision or
to submit same to the Prime Minister for his decision;
(c) To investigate competition cases concerning
practices in restraint of competition and unfair competitive practices;
(d) To deal with and impose fines in respect of
unfair competitive practices;
(dd) To fulfil other duties in accordance with
law.
Article 50. Head of
administrative body for competition
1. The Prime Minister of the Government shall
appoint and dismiss the head of the administrative body for competition on the
proposal of the Minister of Trade.
2. The head of the administrative body for
competition shall be responsible to organize and direct the administrative body
for competition to fulfil the duties and powers stipulated in clause 2 of
article 49 of this Law.
Article 51. Investigators
of competition cases
1. An investigator of a competition case
(hereinafter referred to as an investigator) shall be appointed by the Minister
of Trade on the proposal of the head of the administrative body for
competition.
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Article 52. Standards
for investigators
Persons who satisfy the following standards may
be appointed to act as investigators:
1. Having good ethics and being honest and
objective;
2. Having a bachelor degree in law or in
economics or in finance;
3. Having five or more years work experience in
one of the sectors stipulated in clause 2 of this article;
4. Having undertaken training in professional
investigations. SECTION 2 Competition Council
Article 53. Competition
Council
1. The Competition Council shall be a body
established by the Government. The Competition Council shall consist of from
eleven (11) to fifteen (15) members appointed and dismissed by the Prime
Minister of the Government on the proposal of the Minister of Trade.
2. The Competition Council shall have the duty
to organize dealing with competition cases concerning practices in restraint of
competition and resolution of complaints in accordance with this Law.
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1. The Prime Minister of the Government shall
appoint from amongst the members of the Council, and dismiss, the chairman of
the Competition Council on the proposal of the Minister of Trade.
2. The chairman of the Competition Council shall
be responsible to organize the activities of the Competition Council.
3. The chairman of the Competition Council shall
make a decision on establishment of a council to deal with a competition case,
consisting of at least five of the members of the Competition Council, one of
whom shall act as chairman of the investigative hearing, in order to resolve a
specific competition case.
Article 55. Standards
for members of Competition Council
1. Persons who satisfy the following standards
may be appointed as members of the Competition Council:
(a) Having good ethics, being honest and
objective, and having the spirit of protecting the socialist legal system;
(b) Having a bachelor degree in law or in
economics or in finance;
(c) Having at least nine or more years work
experience in one of the sectors stipulated in clause 1(b) of this article;
(d) Having the ability to complete the tasks
assigned.
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Chapter V
INVESTIGATIONS AND
DEALING WITH COMPETITION CASES
Section 1. GENERAL
PROVISIONS
Article 56. Principles
of competition legal proceedings
1. The resolution of competition cases
concerning practices in restraint of competition shall be carried out in
accordance with this Law.
2. The resolution of competition cases
concerning unfair competitive practices shall be carried out in accordance with
this Law and the laws on dealing with administrative offences.
3. During the course of competition legal
proceedings, investigators, the head of the administrative body for competition
and members of the Competition Council shall, within the scope of their
respective responsibilities, maintain the confidentiality of the business
secrets of enterprises and respect the lawful rights and interests of the
organizations and individuals concerned.
Article 57. Spoken and
written language used in competition legal proceedings
The written and spoken language used in
competition legal proceedings shall be Vietnamese. Parties participating in
competition legal proceedings shall have the right to use their native written
and spoken language, and in such case an interpreter shall be required.
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1. Organizations and individuals considering
that their lawful rights and interests have been infringed as a result of a
breach of the provisions of this Law (hereinafter referred to as complainants)
shall have the right to lodge a complaint at the administrative body for
competition.
2. The time-limit for lodging a complaint shall
be two years from the date on which the conduct indicating a breach of this Law
was carried out.
3. A complaint file must contain the following
main documents:
(a) Complaint application in the form issued by
the administrative body for competition;
(b) Evidence of the offending practice.
4. Complainants shall be responsible for the
truthfulness of the evidence that they submit to the administrative body for
competition.
Article 59. Acceptance
of jurisdiction over complaint files
1. The administrative body for competition shall
be responsible to accept jurisdiction over complaint files.
2. Within a time-limit of seven working days
from the date of receipt of a complaint file, the administrative body for
competition shall be responsible to provide written notice to a complainant about
acceptance of jurisdiction.
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Article 60. Evidence
1. Evidence means things which are true and are
used by investigators and councils dealing with competition cases as grounds
for determining whether or not a practice is in breach of this Law.
2. Evidence shall be determined from the
following sources:
(a) Physical evidence, including things used as
tools or means of breach, money and other things which have value in proving a
breach of this Law;
(b) Declarations of witnesses and explanatory
statements of organizations or individuals concerned;
(c) Original documents, or copies or
translations of original documents which are notarized or lawfully certified or
which are provided or authenticated by a competent body or organization;
(d) Expert conclusions.
Article 61. Application
of administrative preventive measures
1. The head of the administrative body for
competition and the chairman of the Competition Council shall have the right to
apply a number of administrative preventive measures in accordance with the
laws on dealing with administrative offences in the circumstances stipulated in
clause 6 of article 76 and clause 4 of article 79 of this Law.
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2. The following persons shall have the right to
recommend application of administrative preventive measures:
(a) A complainant shall have the right to make a
recommendation to the head of the administrative body for competition or the
chairman of the Competition Council;
(b) An investigator shall have the right to make
a recommendation to the head of the administrative body for competition;
(c ) The chairman of an investigative hearing
shall have the right to make a recommendation to the chairman of the
Competition Council.
3. In the case of application of administrative
preventive measures at the request of a complainant, the complainant shall be
responsible to deposit a security sum in accordance with regulations of the
Government.
In the event of incorrect application of
administrative preventive measures causing loss to the party subject to
investigation due to the fault of the complainant, the complainant must pay
compensation. The amount of compensation shall be agreed by the complainant and
the party subject to investigation; where the parties fail to reach an
agreement, there shall be the right to institute court proceedings requesting
compensation for loss in accordance with civil laws.
4. In the event of incorrect application of
administrative preventive measures at the request of an investigator or the
chairman of an investigative hearing causing loss to the party subject to
investigation, the administrative body for competition or the Competition
Council must pay compensation. The amount of compensation shall be agreed by
the party subject to investigation and the administrative body for competition
or the Competition Council; where the parties fail to reach an agreement, the
party subject to investigation shall have the right to institute court
proceedings requesting compensation for loss in accordance with civil laws. In
this case, the administrative body for competition or the Competition Council
must determine the liability, including material liability, of the applicant1
and of related persons in order that appropriate disciplinary action may be
taken, and the administrative body for competition or the Competition Council
shall be indemnified for the amount of compensation which has been paid to the
party subject to investigation.
5. Any party against which administrative
preventive measures are applied shall have the right to lodge a complaint about
the decision on application of such measures in accordance with the laws on
complaints and denunciations.
Article 62. Fees for
dealing with competition cases
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Article 63. Liability
for payment of fees for dealing with competition cases
1. The party which is concluded to be in breach
of this Law must pay the fees for dealing with the competition case.
2. If the party subject to investigation is not
in breach of this Law, the complainant must pay the fees for dealing with the
competition case.
3. In the case of an investigation into a
competition case conducted pursuant to clause 2 of article 65 of this Law, if
the party subject to investigation is not in breach of this Law, the
administrative body for competition must bear the fees for dealing with the
case.
SECTION 2. PARTICIPANTS IN
COMPETITION LEGAL PROCEEDINGS ARTICLE 64 PARTICIPANTS IN COMPETITION LEGAL
PROCEEDINGS PARTICIPANTS IN COMPETITION LEGAL PROCEEDINGS SHALL COMPRISE:
1. Complainant;
2. Party(ies) subject to investigation;
3. Lawyers;
4. Witnesses;
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6. Interpreters;
7. Persons with related interests and
obligations.
Article 65. Party
subject to investigation in competition case
A party subject to investigation in a
competition case (hereinafter referred to as the party subject to
investigation) means any organization or individual against which or whom the
administrative body for competition issues a decision to investigate in the
following circumstances:
1. A complaint is lodged against such party
pursuant to article 58 of this Law;
2. The administrative body for competition
discovers that such party has been or is currently conducting a practice with
indications of a breach of the laws on competition within two years from the
date on which the practice with indications of a breach of the laws on
competition was conducted.
Article 66. Rights and
obligations of parties
1. Parties subject to investigation shall have
the following rights:
(a) To lead their own evidence and documents,
and to know about2 the documents and evidence which the complainant or the
administrative body for competition leads;
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(c) To request that an investigator or a member
of a council dealing with a competition case be replaced if it is discovered
that such investigator or member falls within one of the categories stipulated
in article 83 of this Law;
(d) To authorize a lawyer to participate in the
competition legal proceedings;
(dd) To request that a witness be invited;
(e) To propose that the administrative body for
competition seek an expert opinion;
(g) To recommend replacement of the persons
conducting and participating in the competition legal proceedings in accordance
with this Law.
2. Complainants shall have the following rights:
(a) The rights stipulated in clause 1 of this
article;
(b) To request the head of the administrative
body for competition or the chairman of the Competition Council to apply
administrative preventive measures relating to the competition case.
3. Parties subject to investigation and
complainants shall have the following obligations:
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(b) To attend in accordance with a summons
issued by the administrative body for competition or the council dealing with
the case. In the event of failure to attend without a legitimate reason despite
service of a summons to attend, the council dealing with the case shall proceed
to deal with the matter on the basis of the information available;
(c) To implement any decision of the
administrative body for competition or the council dealing with the case.
Article 67. Lawyers for
complainant and for party subject to investigation
1. Any lawyer who satisfies the conditions to
participate in legal proceedings as stipulated by the laws on lawyers and is
authorized by a complainant or by a party subject to investigation shall have
the right to participate in competition legal proceedings in order to protect
the lawful rights and interests of the party represented by such lawyer.
2. Lawyers shall have the following rights and
obligations when they participate in competition legal proceedings:
(a) To participate in the stages of competition
legal proceedings;
(b) To verify and collate evidence and to lead
evidence in order to protect the lawful rights and interests of the represented
party;
(c) To investigate documents in the file of a
competition case and to copy by hand or photocopy necessary documents in such
file in order to take action to protect the lawful rights and interests of the
represented party;
(d) To request, on behalf of the represented
party, replacement in accordance with this Law of a person conducting or
persons participating in competition legal proceedings;
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(e) To respect the truth and the law; and not to
bribe, compel or entice others to give false testimony or to provide false
documents;
(g) To attend in accordance with a summons from
the council dealing with the competition case;
(h) Not to disclose investigation secrets
learned during the course of participation in competition legal proceedings;
not to use documents copied from files of competition cases for the purpose of
infringing the interests of the State or the lawful rights and interests of
organizations and individuals.
Article 68. Witnesses
1. A council dealing with a competition case may
summons as a witness a person with knowledge of circumstances relating to
contents of a competition case, or the administrative body for competition may
invite such person to act as a witness at the request of concerned parties. A
person lacking civil capacity may not act as a witness.
2. Witnesses shall have the following rights and
obligations:
(a) To provide all documents and other things in
their possession relating to resolution of a competition case; to testify
directly or in writing before the administrative body for competition or the
council dealing with a competition case about all incidents relating to
resolution of a competition case that they know;
(b) To participate in investigative hearings and
to testify before the council dealing with a competition case;
(c) To be entitled to leave from work when
summonsed by or providing evidence to the administrative body for competition
or the council dealing with a competition case, if the witness works for a
State body or for an organization or enterprise;
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(dd) To be entitled to refuse to testify if the
evidence of the witness involves State secrets, professional secrets or private
life secrets, or if the testimony would adversely impact on or cause harm to
the interests of a complainant or a party subject to investigation having a
close relationship with the witness;
(e) To provide truthful testimony about all
incidents relating to resolution of a competition case that they know;
(g) To pay compensation and to be responsible
before the law for any false testimony causing loss to a complainant, to a
party subject to investigation or to another person;
(h) To attend an investigative hearing in
accordance with a summons issued by the council dealing with a competition
case, if the testimony of such witness must be given publicly in the
investigative hearing;
(i) To warrant to the administrative body for
competition or the council dealing with a competition case that rights will be
exercised and obligations will be discharged, except in cases where the witness
is a minor.
3. Except in the cases stipulated in clause
2(dd) of this article, any witness who refuses to testify, who provides false
testimony or documents, or who is summonsed by the council dealing with a
competition case but fails to attend without a legitimate reason shall be
liable in accordance with law.
4. Witnesses shall be protected in accordance
with law.
Article 69. Experts
1. An expert means a person with essential
knowledge in a sector in which expertise is required and who is called by the
head of the administrative body for competition or the council dealing with a
competition case, or whom the parties concerned suggest be called and the head
of the administrative body for competition or the council dealing with the
competition case so agrees in accordance with law.
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(a) To read documents in the file of a
competition case relating to the matter on which their expertise is sought; to
request the body which called them to provide documents required for the provision
of an expert opinion;
(b) To put questions to persons participating in
the competition legal proceedings on issues relating to the matters on which
their expertise is sought;
(c) To attend in accordance with a summons
issued by the body calling them; to answer questions relating to the matters on
which their expertise is sought and to provide their conclusions honestly and
objectively and stating the grounds therefor;
(d) To notify in writing the body calling them
if they are unable to act as an expert because the matters on which their
expertise is sought are beyond their professional expertise or because the
documents sent to them are inadequate or unable to be used as a basis for an
expert opinion;
(dd) To preserve any documents received by them
and to return [such documents]3 together with their conclusions to the body
requesting expertise or a notice that they are unable to provide an expert
opinion;
(e) Not to collate their own documents to
provide an expert opinion, not to make private contact with other persons
participating in the competition legal proceedings if such contact would affect
the objectivity of the expert conclusion; not to disclose confidential
information learned during the course of providing an expert opinion, and not
to notify their expert conclusion to any person other than the person signing
the decision calling the expert;
(g) In the case where a number of experts are
called to provide a joint opinion, to provide their conclusions if they differ
from that of the other experts provided in the joint opinion;
(h) To be entitled to travelling expenses and
other regimes provided by law.
3. Any expert who refuses to provide his or her
conclusion without a legitimate reason, whose conclusion contains false
testimony, or who is summonsed by the body calling the expert but fails to
attend without a legitimate reason shall be liable in accordance with law.
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(a) He or she belongs to one of the categories
stipulated in article 83 of this Law;
(b) He or she has already participated in the
same competition case as a lawyer for one of the parties, as a witness or as an
interpreter;
(c) He or she has already participated in the
same competition case as a member of the council dealing with the competition
case.
Article 70.
Interpreters
1. An interpreter means a person with the
ability to translate into the Vietnamese language from another language and
vice versa in the case where a person participating in the competition case is
unable to speak the Vietnamese language. Interpreters shall be selected by
agreement between the parties concerned and approved by the council dealing
with the competition case or shall be appointed by the council dealing with the
competition case.
2. Interpreters shall have the following rights
and obligations:
(a) To attend in accordance with a summons from
the council dealing with the competition case;
(b) To interpret truthfully, objectively and
correctly;
(c) To request additional explanation of matters
to be interpreted from persons conducting and participating in the competition
case;
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(dd) To be entitled to travelling expenses and
other regimes provided by law;
(e) To warrant to the council dealing with the
competition case that they will exercise their rights and discharge their obligations.
3. If an interpreter deliberately interprets
incorrectly, or is summonsed by the council dealing with the competition case
but fails to attend without a legitimate reason, he or she shall be liable in
accordance with law.
4. An interpreter shall refuse to act as an
interpreter or shall be replaced in the following circumstances:
(a) He or she belongs to one of the categories
stipulated in article 83 of this Law;
(b) He or she has already participated in the
same competition case as a lawyer for the complainant or the party subject to
investigation, as a witness or as an expert;
(c) He or she has already participated in the
same competition case as a member of the council dealing with the competition
case.
5. The provisions in this article shall also
apply to a person understanding the sign language of a deaf person or a dumb
person participating in a competition case.
If the only person competent in the sign
language of a deaf person or a dumb person participating in a competition case
is the representative or relative of such deaf person or dumb person, the
council dealing with the competition case may approve such representative or
relative to act as interpreter for the deaf person or dumb person.
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1. Persons with related interests and
obligations may request to participate in competition legal proceedings
independently or with the complainant or with the party subject to investigation.
2. A person with related interests and
obligations who makes a request to participate in competition legal proceedings
independently or with the complainant or who only has interests shall have the
rights and obligations of the complainant stipulated in article 66 of this Law.
3. A person with related interests and
obligations who participates in competition legal proceedings with the party
subject to investigation or who only has obligations shall have the rights and
obligations of the party subject to investigation stipulated in article 66 of
this Law.
Article 72. Procedures
for refusal to act as expert or interpreter and for request of replacement of
expert or interpreter
1. Any refusal to act as an expert or
interpreter or any request for replacement of an expert or interpreter prior to
opening of an investigative hearing must be made in writing and shall specify
the reasons therefor.
2. Any refusal to act as an expert or
interpreter or any request for replacement of an expert or interpreter during
an investigative hearing must be recorded in the minutes of the investigative
hearing.
Article 73. Decision on
replacement of expert or interpreter
1. Prior to opening of an investigative hearing,
the chairman of the Competition Council shall make a decision on replacement of
an expert or interpreter.
2. During an investigative hearing, the council
dealing with the competition case shall make a decision on replacement of an
expert or interpreter after hearing the opinions of the person proposed to be
replaced and of other persons participating in the competition legal
proceedings.
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Section 3. BODIES
CONDUCTING COMPETITION LEGAL PROCEEDINGS AND PERSONS CONDUCTING COMPETITION
LEGAL PROCEEDINGS
Article 74. Bodies
conducting competition legal proceedings
Bodies conducting competition legal proceedings
shall comprise the administrative body for competition and the Competition
Council.
Article 75. Persons
conducting competition legal proceedings
Persons conducting competition legal proceedings
shall comprise members of the Competition Council, the head of the
administrative body for competition, investigators, and secretaries to
investigative hearings.
Article 76. Duties and
powers of head of administrative body for competition when conducting
competition legal proceedings
The head of the administrative body for
competition shall have the following duties and powers when conducting
competition legal proceedings:
1. To make decisions assigning investigators to
specific competition cases;
2. To supervise the activities of an
investigator of a competition case;
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4. To make decisions on replacement of the
investigator conducting a competition case;
5. To make decisions calling for expert
opinions;
6. To make decisions on application, amendment
or revocation of administrative preventive measures prior to transferring a
file on a competition case to the Competition Council for resolution;
7. To make decisions on preliminary
investigations, on stay of investigations, and on opening of an official
investigation into a competition case within the authority of the
administrative body for competition;
8. To invite witnesses at the request of parties
during the investigative stage;
9. To sign conclusions of an investigation of a
competition case when submitted by the assigned investigator;
10. To transfer files on competition cases to
the Competition Council where such competition cases concern practices in
restraint of competition;
11. To resolve complaints and denunciations
within the authority of the administrative body for competition.
Article 77. Rights of
investigators when conducting competition legal proceedings Investigators shall
have the following rights when conducting competition legal proceedings:
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2. To require the party subject to investigation
to provide documents and/or explanatory statements relating to the case which
is the subject of investigation;
3. To recommend that the head of the administrative
body for competition seek an expert opinion;
4. To recommend that the head of the
administrative body for competition apply administrative preventive measures
relating to the competition case.
Article 78. Obligations
of investigators when conducting competition legal proceedings Investigators
shall have the following obligations when conducting competition legal
proceedings:
1. To serve the decision to conduct an
investigation as issued by the head of the administrative body for competition
on the party subject to investigation;
2. To maintain the confidentiality of the
business of enterprises;
3. To keep the documents provided in safe
custody;
4. To conduct the investigation into the
competition case as assigned by the head of the administrative body for
competition;
5. To write a report upon completion of a
preliminary investigation and official investigation into the competition case;
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Article 79. Duties and
powers of chairman of Competition Council when conducting competition legal
proceedings
1. To establish a council to deal with a
competition case pursuant to clause 3 of article 54 of this Law;
2. To make decisions on replacement of members
of a council dealing with a competition case, secretary to an investigative
hearing, experts or interpreters prior to opening of an investigative hearing
pursuant to clause 1 of article 73, article 83 and clause 1 of article 85 of
this Law;
3. To make decisions on appointment of
replacement members of a council dealing with a competition case or secretary
to an investigative hearing pursuant to clause 2 of article 85 of this Law;
4. To make decisions on application, amendment
or revocation of administrative preventive measures as from receipt of the file
on a competition case.
Article 80. Councils
dealing with competition cases
1. When resolving competition cases, councils
dealing with competition cases shall act independently and shall obey the law
only.
2. Any decision dealing with a competition case
passed by the council dealing with such case shall be on the principle of a
majority vote and, in the case of a tied vote, the decision shall be that of
the side of the chairman of the investigative hearing.
Article 81. Duties and
powers of chairman of investigative hearing
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1. To arrange research into the file on a
competition case;
2. On the basis of the decision of the council
dealing with the competition case, to sign a recommendation to the chairman of
the Competition Council to apply, amend or revoke administrative preventive
measures; to make a decision on return of the file on a competition case to the
administrative body for competition and to request an additional investigation;
or to make a decision on suspension of dealing with a competition case;
3. On the basis of the decision of the council
dealing with the competition case, to sign a decision on opening of an
investigative hearing;
4. To make a decision on summons of persons to
participate in the investigative hearing;
5. To sign and issue decisions on dealing with
competition cases and other decisions of the council dealing with a competition
case;
6. To conduct other activities within his or her
authority in accordance with this Law when dealing with competition cases.
Article 82 Secretary to
investigative hearing
1. A secretary to an investigative hearing shall
have the following duties and powers:
(a) To prepare the necessary technical matters
prior to opening of the investigative hearing;
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(c) To report to the council dealing with the
competition case on who is in attendance and who is not in attendance amongst
the persons summonsed to attend;
(d) To prepare minutes of the investigative
hearing;
(dd) To undertake other work assigned by the
chairman of the investigative hearing.
2. A secretary to an investigative hearing must
refuse to so act or shall be replaced if he or she belongs to one of the
categories stipulated in article 83 of this Law.
Article 83. Cases of
compulsory refusal by and replacement of investigators, members of councils
dealing with competition cases, secretaries to investigative hearings, experts
and interpreters
A member of a council dealing with a competition
case, an investigator, the secretary to an investigative hearing, an expert or
an interpreter must refuse to carry out their duties and shall be replaced in
any of the following circumstances:
1. He or she is a relative of a complainant or
of a party subject to investigation;
2. He or she is a person with rights or
interests related to the competition case;
3. There are other clear grounds to demonstrate
that he or she is not impartial in the exercise of his or her duties.
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1. Any refusal to conduct proceedings or any
request for replacement of a member of a council dealing with a competition
case or the secretary to an investigative hearing prior to opening of an investigative
hearing must be made in writing and shall specify the reasons therefor.
2. Any refusal to conduct proceedings or any
request for replacement of a member of a council dealing with a competition
case or the secretary to an investigative hearing during an investigative
hearing shall be recorded in the minutes of the investigative hearing.
Article 85. Decision on
replacement of members of councils dealing with competition cases or
secretaries to investigative hearings
1. Prior to opening of an investigative hearing,
the chairman of the Competition Council shall make a decision on replacement of
a member of the council dealing with the competition case or of the secretary
to the investigative hearing.
2. During an investigative hearing, the council
dealing with the competition case shall make a decision on replacement of a
member of such council or of the secretary to an investigative hearing after
hearing the opinions of the person sought to be replaced and of other persons
participating in the proceedings. The council dealing with the competition case
shall deal with such matter in camera4 and shall reach a majority decision
thereon.
If a member of the council dealing with the
competition case or the secretary to an investigative hearing must be replaced,
the council shall issue a decision on adjournment of the investigative hearing.
The chairman of the Competition Council shall make a decision on the person to
replace the member of the council dealing with the competition case or the
secretary to an investigative hearing.
Section 4. INVESTIGATION OF
COMPETITION CASES
Article 86. Preliminary
investigation
A preliminary investigation of a competition
case shall be conducted pursuant to a decision of the head of the
administrative body for competition in the following circumstances:
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2. After the administrative body for competition
discovers there is an indication of a breach of the provisions of this Law.
Article 87. Time-limit
for preliminary investigation
1. The time-limit for a preliminary
investigation shall be thirty (30) days from the date of a decision to conduct
a preliminary investigation.
2. Within the time-limit stipulated in clause 1
above, the investigator assigned to investigate the case must complete the
preliminary investigation and make a recommendation to the head of the
administrative body for competition to either issue a decision to conduct an
official investigation or to stay the investigation.
Article 88. Decision to
stay investigation or decision to conduct official investigation
The head of the administrative body for
competition shall, based on the result of the preliminary investigation and the
recommendation of the investigator, issue one of the following decisions:
1. A decision to stay the investigation if the
results of the preliminary investigation reveal that there is no practice in
breach of the provisions of this Law;
2. A decision to conduct an official investigation
if the results of the preliminary investigation reveal that there are
indications of a breach of the provisions of this Law.
Article 89. Contents of
official investigation
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(a) Verification of the relevant market;
(b) Verification of the relevant market share of
the party subject to investigation;
(c) Collation and analysis of evidence of the
practice in breach.
2. In respect of an unfair competition case, the
investigator must identify the grounds for concluding that the party subject to
investigation has engaged or is currently engaging in an unfair competitive
practice.
Article 90. Time-limit
for official investigation
The time-limit for an official investigation
shall be provided for as follows:
1. The time-limit for an investigation of an
unfair competitive case shall be ninety (90) days from the date of the decision
to conduct an official investigation. In necessary cases, the head of the
administrative body for competition may extend this time-limit, but not by more
than sixty (60) days.
2. The official time-limit for an investigation
of an agreement in restraint of competition, an abuse of dominant market
position or monopoly position, or a case of economic concentration shall be one
hundred and eighty (180) days from the date of the decision to conduct an
official investigation. In necessary cases, the head of the administrative body
for competition may extend this time-limit, but on not more than two occasions
and each extension may not exceed sixty (60) days.
3. An investigator must notify any extension of
the time-limit for an investigation to all parties concerned at least seven
working days prior to expiry of the time-limit.
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1. When conducting an investigation, the
investigator must prepare minutes, specifying the location, dates and times when
the investigation is conducted, the persons carrying out the investigation, the
party subject to investigation, the contents being investigated, the
complaints, and the requests of the party subject to investigation.
2. The investigator of a competition case must
read out the minutes to the party subject to investigation prior to all of them
signing the minutes.
3. Where the party subject to investigation
refuses to sign the minutes, the investigator must record the refusal in the
minutes and specify the reasons therefor.
Article 92. Request for
witnesses during investigation
1. During the process of an investigation, the
parties shall have the right to request that the administrative body for
competition invite witnesses. The party requesting that a witness be invited
shall be obliged to present the reasons why it is necessary to invite such
witness in order that the administrative body for competition may make a
decision.
2. The invitation letter for witnesses issued by
the administrative body for competition shall specify the full name and place
of residence of the invitee, the location and time for providing testimony, the
parties and the subject matter of the case.
3. The testimony of the witness shall be minuted
and read out by the investigator to the witness prior to both parties signing
the minutes.
Article 93. Report on
investigation
1. Upon completion of an investigation, the head
of the administrative body for competition must send a report on the
investigation together with the whole of the file on the competition case to
the Competition Council.
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(a) Summary of the case;
(b) Features of the case and the evidence which
was verified;
(c) Suggestions on measures for dealing with the
case.
Article 94. Transfer of
files on competition cases with indications of criminal offences
If indications of a criminal offence are
identified during investigation of a competition case, the investigator must
make an immediate recommendation to the head of the administrative body for
competition to consider the transfer of the file to the State body with
authority to institute a criminal prosecution.
Article 95. Return of
file when no grounds for instituting criminal prosecution
If the State body with authority to institute a
criminal prosecution considers that there are no grounds for instituting a
criminal prosecution pursuant to the Criminal Procedure Code, such body shall
return the file to the administrative body for competition to continue the
investigation in accordance with this Law. The time-limit for an investigation
stipulated in article 90 of this Law shall be calculated from the date of
receipt of the returned file.
Article 96. .Additional
investigation and time-limit for conducting additional investigation
1. The investigator of a competition case must
conduct an additional investigation at the written request of the council
dealing with the competition case.
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Article 97.
Responsibility to co-ordinate and assist with investigations
Local authorities, police authorities and other
bodies and organizations shall be responsible to co-ordinate and assist with
investigations at the request of the head
of the administrative body for competition.
Section 5. INVESTIGATIVE
HEARINGS
Article 98..Competition
cases which must be considered and dealt with by way of investigative hearing
Competition cases within the authority for
resolution of the Competition Council must be considered and dealt with by way
of an investigative hearing.
Article 99..Preparation
for conducting investigative hearing
1. Upon receipt of the investigation report and
the complete file of a competition case forwarded by the head of the
administrative body for competition, the chairman of the Competition Council
shall issue a decision on establishment of a council to deal with the
competition case.
2. Within a time-limit of thirty (30) days from
the date of receipt of the file on the competition case, the council dealing
with the competition case must issue one of the following decisions:
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(b) To return the file for additional
investigation;
(c) To stay resolution of the competition case.
3. Within a period of fifteen (15) days from the
date of a decision to conduct an investigative hearing, the council dealing
with the competition case must open the investigative hearing.
4. Where the file has been returned for
additional investigation, within fifteen (15) days from the date of receipt of
the returned file5, the council dealing with the competition case shall issue
one of the decisions stipulated in clause 2 of this article.
Article 100. Return of
file for additional investigation
If the council dealing with the competition case
considers that the evidence collected is insufficient to determine whether or
not there has been a practice in breach of the provisions of this Law, it shall
issue a decision returning the file and requesting additional investigation.
Article 101. Stay of
resolution of case within authority for resolution of Competition Council
1. The council dealing with the competition case
shall issue a decision to stay resolution of a case within the authority for
resolution of the Competition Council in the following circumstances:
(a) Where the head of the administrative body
for competition proposes a stay of resolution of a case because there is
insufficient evidence to prove a practice in breach of the provisions of this
Law and the council dealing with the competition case agrees that such proposal
is legitimate;
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(c) Where the investigation of the competition
case is carried out in accordance with clause 2 of article 65 of this Law, the
parties subject to investigation have terminated voluntarily the practice in
breach and remedied the consequences caused, and the head of the administrative
body for competition proposes a stay of resolution of the case.
2. The decision to stay resolution of a
competition case shall be sent to the party subject to investigation, the
complainant (if any) and the administrative body for competition.
Article 102. Decision
to conduct investigative hearing
1. The decision to conduct an investigative
hearing must be delivered to the parties stated in the decision no later than
ten (10) days prior to opening of the hearing.
2. The decision to conduct an investigative
hearing shall specify the following particulars:
(a) Party(ies) subject to investigation;
(b) Complainant, or administrative body for
competition when the investigation of the competition case is conducted
pursuant to clause 2 of article 65 of this Law;
(c) Specific articles and clauses of this Law
being breached;
(d) Time and location where the investigative
hearing is to be opened;
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(e) Full name of members of the council dealing
with the competition case;
(g) Full name of the investigator who has
already investigated the competition case and of the secretary of the
investigative hearing;
(h) Full name of lawyers;
(i) Full name of interpreters;
(k) Full name of witnesses;
(l) Full name of experts;
(m) Any person with related rights and
obligations.
Article 103. Summons
to persons who must attend investigative hearing
The council dealing with the competition case
shall, on the basis of the decision to conduct an investigative hearing, send a
summons to persons who must attend such hearing no later than ten (10) days
prior to opening of the hearing.
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1. An investigative hearing shall be conducted
in public. If the matters investigated concern national security or business
secrets, the investigative hearing shall be conducted in camera.
2. The following persons shall participate in a
hearing:
(a) Members of the council dealing with the
competition case and the secretary of the investigative hearing;
(b) Party(ies) subject to investigation;
(c) Complainant;
(d) Lawyers;
(dd) Investigator who has already investigated
the competition case;
(e) Other persons as stated in the decision to
conduct the investigative hearing.
3. After hearing the opinions of and the
exchange of arguments by all participants, the council dealing with the
competition case shall hold its own discussion and reach a majority decision by
secret ballot.
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Article 105. Decision
on resolution of competition case
1. A decision on resolution of a competition
case must contain the following main particulars:
(a) Summary of the facts of the case;
(b) Analysis of the case;
(c) Conclusion on how to deal with the case.
2. The chairman of the investigative hearing
shall sign the decision on resolution of a competition case.
3. The decision on resolution of a competition
case must be sent to the parties concerned within seven working days of the
date of signing of such decision.
Article 106.
Effectiveness of decision on resolution of competition case
A decision on resolution of a competition case
shall become effective after thirty (30) days from the date of its signing,
unless a complaint is lodged within such period pursuant to article 107 of this
Law.
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Article 107.
Complaining against decision on resolution of competition case
1. In the case of disagreement with a part or
all of a decision on resolution of a competition case made by the council
dealing with such case, the parties shall have the right to lodge a complaint
with the Competition Council.
2. In the case of disagreement with a part or
all of a decision on resolution of a competition case made by the head of the
administrative body for competition, the parties shall have the right to lodge
a complaint with the Minister of Trade.
Article 108. Complaint
against decision on resolution of competition case
1. A complaint against a decision on resolution
of a competition case must contain the following main particulars:
(a) Full date of the complaint;
(b) Name and address of the complainant;
(c) Number and full date of the decision on
resolution of the competition case which is the subject of complaint;
(d) Reasons for the complaint and requests of
the complainant;
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2. A complaint must be lodged with the body
which issued the decision on resolution of the competition case, together with
any additional evidence proving that there are grounds for the complaint and
the complaint is legal.
Article 109.
Acceptance of jurisdiction over complaint against decision on resolution of
competition case Within a time-limit of five working days from the date of
receipt of a complaint against a decision on resolution of a competition case,
the body which issued the decision must verify the validity of the complaint
pursuant to article 108 of this Law.
Article 110
Consequences of complaint against decision on resolution of competition case
1. Any part of a complaint against a decision on
resolution of a competition case which is the subject of complaint shall not be
transferred for enforcement.
2. Within a time-limit of fifteen (15) days from
the date of receipt of a complaint against a decision on resolution of a
competition case, the body which accepted jurisdiction to resolve the complaint
shall consider it and then transfer the complaint, the whole of the file on the
competition case and the recommendations of such body to the Competition
Council or to the Minister of Trade in accordance with the provisions of
article 107 of this Law.
Article 111.
Time-limit for resolution of complaint against decision on resolution of
competition case
Within a time-limit of thirty (30) days from the
date of receipt of a complaint file, the Competition Council or the Minister of
Trade shall be responsible to resolve the complaint in accordance with their
authority. In especially complex cases, this time-limit may be extended but not
for more than thirty (30) days.
Article 112. Powers of
Competition Council when resolving complaint against decision on resolution of
competition case by council dealing with competition case
When the Competition Council considers
resolution of a complaint against a decision on resolution of a competition
case by a council dealing with a competition case, the Competition Council
shall have the following rights:
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2. If it considers that the original decision
was not correct in accordance with law, to amend a part or the whole of the
original decision;
3. To revoke the original decision and transfer
the file on the competition case to the council dealing with it for
reconsideration in the following circumstances:
(a) Evidence has not been sufficiently collected
and verified;
(b) Membership of the council did not comply
with the provisions of this Law or there was some other serious breach of the
provisions on competition legal proceedings.
Article 113. Powers of
Minister of Trade when resolving complaint against decision on resolution of
competition case by administrative body for competition
When the Minister of Trade considers resolution
of a complaint against a decision on resolution of a competition case made by
the administrative body for competition, the Minister of Trade shall have the
rights stipulated in clauses 1 and 2 of article 112 of this Law; and if
evidence has not been sufficiently collected and verified, the Minister of
Trade shall have the right to revoke the original decision and request that the
administrative body for competition reconsider its original decision in
accordance with the procedures stipulated in this Law.
Article 114.
Effectiveness of decision on resolution of complaint
A decision on resolution of a complaint against
a decision on resolution of a competition case shall be legally effective as
from the date of its signing.
Article 115.
Instituting proceedings in relation to decision on resolution of complaint
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2. If a court accepts jurisdiction over
proceedings as stipulated in clause 1 of this article, the Minister of Trade or
the chairman of the Competition Council shall be responsible to direct that the
file on the complaint against the decision on resolution of a competition case
must be transferred to the court within a time-limit of ten (10) working days
from the date of receipt of a request from the court.
Article 116.
Consequences of instituting proceedings
Any part of a decision on resolution of a
competition case which is not the subject of court proceedings shall continue
to be transferred for enforcement.
Section 8. DEALING WITH
BREACHES OF LAWS ON COMPETITION
Article 117. Forms of
penalties to be imposed for breaches of laws on competition and measures for
remedying consequences
1. For each practice in breach of the laws on
competition, the individual or organization in breach must be subject to one of
the following main forms of penalty:
(a) A warning;
(b) A fine.
2. Depending on the nature and seriousness of
the breach, one or more of the following additional forms of penalty may also
be applied to an individual or organization in breach of the laws on
competition:
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(b) Confiscation of exhibits and facilities used
to commit the breach of the laws on competition.
3. In addition to the forms of penalty
stipulated in clauses 1 and 2 of this article, one or more of the following
measures for remedying consequences may also be applied to an individual or
organization in breach of the laws on competition:
(a) Restructure of an enterprise which abuses
its dominant market position;
(b) Division or separation of enterprises which
merged or consolidated; compulsory re-sale of that part of an enterprise which
was acquired;
(c) Public rectification;
(d) Removal of illegal terms and conditions from
a contract or business transaction;
(dd) Other measures necessary to remedy the
effects of the restraint on competition caused by the practice in breach.
4. Where a practice in breach causes loss to the
interests of the State or to the lawful rights and interests of other
individuals or organizations, compensation must be paid for such loss in
accordance with law.
Article 118. Level of
fines for breach of laws on competition
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2. The body authorized to impose penalties shall
deal with unfair competitive practices and other conduct in breach of this Law
outside the cases stipulated in clause 1 of this article in accordance with the
laws on dealing with administrative offences or in accordance with relevant
laws.
3. The Government shall provide detailed
regulations on the level of fines applicable to practices in breach of this
Law.
Article 119. Authority
to impose fines and deal with breaches of laws on competition
1. A council dealing with a competition case and
the Competition Council shall have the following powers:
(a) To issue a warning;
(b) To impose a fine as stipulated in clause 1
of article 118 of this Law;
(c) To confiscate exhibits and facilities used
to commit the breach of the laws on competition;
(d) To apply the measures stipulated in
sub-clauses (c), (d) and (dd) of clause 3 of article 117 of this Law;
(dd) To request the competent State body to
withdraw the business registration certificate or to revoke the right to use a
licence or practising certificate;
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2. The administrative body for competition shall
have the right to apply the measures stipulated in sub-clause (a) of clause 1,
sub-clause (b) of clause 2 and sub-clause (c) of clause 3 of article 117 and
clause 2 of article 118 of this Law.
3. Other bodies authorized to impose penalties
for unfair competitive practices relating to intellectual property shall do so
in accordance with the laws on dealing with administrative offences.
Article 120. Dealing
with breaches by State employees and officials
Any State employee or official who commits a
breach of the laws on competition shall, depending on the nature and
seriousness of the breach, be disciplined or be subject to criminal prosecution;
and if loss is caused, he or she must pay compensation for it in accordance
with law.
Article 121.
Enforcement of decisions on resolution of competition cases
1. After a time-limit of thirty (30) days from
the date of effectiveness of a decision on resolution of a competition case, if
one of the parties fails to implement voluntarily the decision and has not
instituted proceedings before the court pursuant to Section 7 of this Chapter,
the judgment creditor shall have the right to lodge a request with a competent
State administrative body to enforce the decision pursuant to the functions,
duties and powers of such body.
2. If the decision on resolution of the
competition case relates to assets of a judgment debtor, the judgment creditor
shall have the right to request the civil judgment enforcement office of the
city or province under central authority where the judgment debtor has its head
office or resides or where there are assets of the judgment debtor to enforce
the decision on resolution of the competition case.
Chapter VI
IMPLEMENTING PROVISIONS
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This Law shall be of full force and effect as of
1 July 2005.
Article 123.
Implementing guidelines
The Government and the People's Supreme Court
shall provide detailed regulations for implementation of this Law.
This Law was passed by Legislature XI of the
National Assembly of the Socialist Republic of Vietnam at its 6th Session on 3
December 2004.
THE CHAIRMAN
OF THE NATIONAL ASSEMBLY
Nguyen Van An