Circular No. 08/2013/TT-BCT dated April 22, 2013 of the Ministry of Industry and Trade detailing goods trading and directly related activities of foreign-invested enterprises in Vietnam

MINISTRY OF INDUSTRY AND TRADE

Circular No. 08/2013/TT-BCT of April 22, 2013, detailing goods trading and directly related activities of foreign-invested enterprises in Vietnam

Pursuant to the Government’s Decree No. 95/2012/ND-CP of November 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No.108/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Law on Investment;

Pursuant to the Government’s Decree No. 23/2007/ND-CP of February 12, 2007, detailing the Commercial Law regarding goods trading and directly related activities of foreign-invested enterprises in Vietnam;

At the proposal of the director of the Planning Department;

The Minister of Industry and Trade promulgates the Circular to detail goods trading and directly related activities of foreign-invested enterprises in Vietnam:

Chapter I

GENERAL PROVISIONS

Article 1. Investment in goods trading and directly related activities

Foreign investors or foreign-invested enterprises in Vietnam that meet the conditions specified at Point a, Clause 1, Article 4 of Decree No. 23/2007/ND-CP may invest in goods trading and directly related activities in the forms and according to the roadmap provided in Appendix 01 to Decision No. 10/2007/QD-BTM of May 21, 2007, of the Minister of Trade (now the Minister of Trade and Industry), publicizing the roadmap for carrying out goods trading and directly related activities, and other relevant provisions of law.

Article 2. Scope of goods trading and directly related activities

Foreign-invested enterprises may only carry out goods trading and directly related activities prescribed in their investment certificates, business licenses or licenses for setting up retail establishments and other relevant laws.

Article 3. Exercise of the right to export

1. Foreign-invested enterprises already licensed to exercise the right to export, may purchase goods in Vietnam for export, including goods imported into Vietnam by them or other enterprises for which the tax liability and other financial obligations have been fulfilled, under the following conditions:

a/ Exports are not in the list of those banned from export, list of those temporarily suspended from export or list of those of which the right to export is not granted according to international commitments;

b/ For exports in the list of conditional exports, enterprises must meet conditions as prescribed by law;

c/ For exports in the list of goods to be exported under roadmaps specified in international commitments, enterprises shall comply with the committed roadmaps;

d/ Exported goods must be consistent with the content of the right to export which enterprises have been licensed to exercise.

2. Foreign-invested enterprises already licensed to exercise the right to export may directly carry out export procedures at customs offices as prescribed by law.

3. Foreign-invested enterprises already licensed to exercise the right to export shall fulfill the tax liability and other financial obligations for the export of goods as prescribed by law.

4. Foreign-invested enterprises already licensed to exercise the right to export may directly purchase for export only goods of Vietnamese traders that have business registration or the right to import or the right to distribution of such goods; may not organize a network for purchasing goods in Vietnam for export, including opening points for purchasing goods for export, unless otherwise provided by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party.

Article 4. Exercise of the right to import

1. Foreign-invested enterprises already licensed to exercise the right to import may import goods from abroad into Vietnam, under the following conditions:

a/ Imports are not in the list of those banned from import, list of those temporarily suspended from import or list of those of which the right to import is not granted according to international commitments;

b/ For imports in the list of conditional imports, enterprises must meet conditions as prescribed by law;

c/ For imports in the list of goods to be imported under roadmaps specified in international commitments, enterprises shall comply with the committed roadmaps;

d/ Imported goods must be consistent with the content of the right to import which enterprises have been licensed to exercise.

2. Foreign-invested enterprises already licensed to exercise the right to import may directly carry out import procedures at customs offices as prescribed by law.

3. Foreign-invested enterprises already licensed to exercise the right to import shall fulfill the tax liability and other financial obligations for the import of goods as prescribed by law.

4. Foreign-invested enterprises already licensed to exercise the right to import but not yet licensed to exercise the right to distribution may only directly sell imported goods to Vietnamese traders that have business registration or the right to export or right to distribution of such goods; and may not organize or participate in a system of goods distribution in Vietnam, unless otherwise provided by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party.

Article 5. Exercise of the right to distribution

1. Foreign-invested enterprises already licensed to exercise the right to distribution may distribute goods which are produced in Vietnam and lawfully imported into Vietnam, under the following conditions:

a/ The distributed goods are not in the list of those banned from business or the list of those of which the right to distribution is not granted under international commitments;

b/ For goods restricted from trading or goods subject to business conditions, enterprises must meet conditions as prescribed by law;

c/ For distributed goods in the list of goods to be distributed according to roadmaps specified in international commitments, enterprises shall comply with the committed roadmaps;

d/ Distributed goods must be consistent with the content of the right to distribution which enterprises have been licensed to exercise.

2. Foreign-invested enterprises already licensed to exercise the right to distribution shall fulfill the tax liability and other financial obligations for the distribution of goods as prescribed by law.

Article 6. Goods trading and directly related activities with export processing enterprises

1. Foreign-invested export processing enterprises already licensed to exercise the right to import and export may exercise the relevant rights specified in Articles 3 and 4 of this Circular.

2. Foreign-invested export processing enterprises already licensed to exercise the right to distribution may exercise the right to distribution specified in Article 5 of this Circular, including distribution for export processing enterprises and enterprises outside export processing zones in Vietnam.

3. Foreign-invested enterprises other than export processing enterprises already licensed to exercise the right to distribution may exercise the right to distribution specified in Article 5 of this Circular, including distribution for export processing enterprises.

4. Export processing enterprises shall fulfill their tax liability and other financial obligations for goods trading and directly related activities as prescribed by law.

5. Investment incentives, tax incentives and other financial incentives applicable to export production of foreign-invested export processing enterprises are not applicable to goods trading and directly related activities of foreign-invested export processing enterprises.

Article 7. Setting up of retail establishments

1. The setting up of retail establishments, including first retail establishments, must comply with the law on state management of retail activities and conform with related master plans of provinces and centrally run cities where retail establishments are expected to be set up.

2. The setting up of retail establishments in addition to the first retail establishment are considered on a case-by-case basis based on the assessment of economic demand of each locality where retail establishments are located according to the following criteria: quantity of retail establishments, stability of market, population density and size of the district-level locality where retail establishments are expected to be set up.

3. In case of setting up a retail establishment of under 500 m² in an area planned for goods trading activities by the province or centrally run city and with completely constructed infrastructure facilities, it is not required to comply with the provision on economic demand assessment in Clause 2 of this Article. This provision does not apply when there are changes in planning and this condition does not exist.

4. The People’s Committees of provinces and centrally run cities (below referred to as provincial-level People’s Committees) shall establish a council for economic demand assessment to consider the conformity of the setting up of retail establishments in addition to the first retail establishment with the criteria specified in Clauses 1 and 2 of this Article.

5. A council for economic demand assessment is composed of representatives of the provincial-level People’s Committee; provincial-level Planning and Investment Department (or the management board of the economic zone where the retail establishment is located); provincial-level Industry and Trade Department and relevant agencies, committees and sectors (as decided by the chairperson of the provincial-level People’s Committee).

In case a retail establishment is to be set up in a place in a commune, ward or township adjacent to another province or centrally run city, the council for economic demand assessment must include a representative of the provincial-level People’s Committee of the adjacent locality

6. The working result of the council for economic demand assessment must be adopted in writing by the provincial-level People’s Committee. This document constitutes part of the dossier of setting up of retail establishment sent to the Ministry of Industry and Trade for opinion.

7. Foreign-invested enterprises possessing investment certificates permitting the setting up of retail establishments in addition to the first retail establishment not falling in the case specified in Clause 3, Article 7 of this Circular but having no license for the setting up of retail establishments as prescribed in Decree No. 23/2007/ND-CP shall carry out procedures to apply for a license to set up retail establishments as prescribed in Article 19 of this Circular.

Article 8. Setting up of branches for goods trading and directly related activities

Foreign-invested enterprises that set up branches for goods trading and directly related activities or set up retail establishments in association with setting up branches shall comply with the provisions of the Law on Investment, the Law on Enterprises, Decree No. 23/2007/ND-CP and this Circular.

Article 9. Capital contribution and share purchase by foreign investors in Vietnamese enterprises in order to carry out goods trading and directly related activities

Enterprises that become foreign-invested enterprises carrying out goods trading and directly related activities as a result of capital contribution or share purchase by foreign investors in Vietnamese enterprises shall comply with Decree No. 23/2007/ND-CP and this Circular.

Chapter II

PROCEDURES FOR LICENSING GOODS TRADING AND DIRECTLY RELATED ACTIVITIES

Article 10. Licensing of the exercise of the right to export and the right to import, but not concurrently exercise of the right to distribution or activities directly related to goods trading

1. Foreign investors who invest to exercise the right to export or the right to import shall carry out procedures for application for investment certificates; foreign-invested enterprises in Vietnam which supplement their operation objectives for exercise of the right to export or the right to import shall carry out procedures for adjustment of their investment certificates.

a/ A dossier comprises:

- Dossier of verification for grant or adjustment of investment certificate as prescribed by the law on investment;

- A written explanation about the satisfaction of conditions for carrying out goods trading and directly related activities, made according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the exercise of the right to export or the right to import;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years, for foreign-invested enterprises wishing to supplement the exercise of the right to export or the right to import. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

b/ Competent state agencies shall base themselves on relevant regulations to grant investment certificates or adjust investment certificates in order to supplement the operation objectives for exercise of the right to export or the right to import. The investment certificate is concurrently the business license. Regulations on business lines in investment certificates comply with form HD-1 promulgated together with this Circular.

2. A foreign-invested enterprise possessing an investment certificate for exercise of the right to export or the right to import, when adjusting the content of exercise of the right to export or the right to import, shall carry out procedures for adjustment of its investment certificate or procedures for adjustment of its investment certificate together with the grant of a business license (if it so requests).

a/ In case of adjustment of the investment certificate, a dossier comprises:

- Dossier of verification for adjustment of investment certificate as prescribed by the law on investment;

- A written explanation about the satisfaction of the conditions for carrying out goods trading and directly related activities, made according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the implementation of the adjusted content;

- Reports on the exercise of the right to export or the right to import, made according to forms BC-1, BC-2 and BC-3 promulgated together with this Circular.

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

b/ In case of adjustment of the investment certificate together with the grant of a business license, a dossier comprises:

- Dossier specified at Point a, Clause 2 of this Article;

- Application for a business license, made according to form MD-1 promulgated together with this Circular.

c/ Competent state agencies shall base themselves on relevant regulations to adjust investment certificates regarding the exercise of the right to export or the right to import or adjust investment certificates regarding the exercise of the right to export or the right to import together with the grant of business licenses according to form GP-1 promulgated together with this Circular. Regulations on business lines in investment certificate comply with form HD-1 promulgated together with this Circular.

Article 11. Grant of licenses for goods trading and directly related activities

1. Foreign investors with investment projects and carrying out goods trading and directly related activities in association with the setting up of enterprises shall carry out procedures for application for investment certificates.

a/ A dossier comprises:

- Dossier of verification for grant of investment certificate as prescribed by the law on investment;

- A written explanation about the satisfaction of conditions for carrying out goods trading and directly related activities, made according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the achievement of the operation objective of goods trading and directly related activities.

b/ After having the acceptance opinion of the Ministry of Industry and Trade, competent state agencies shall grant investment certificates. The investment certificate is concurrently the business license.

c/ Regulations on business lines in investment certificates comply with form HD-1 promulgated together with this Circular.

2. If a foreign investor possessing an investment certificate for carrying out goods trading and directly related activities has an investment project to establish another economic entity or participate in investment in a project of another economic entity aiming to carry out goods trading and directly related activities, it shall carry out procedures to apply for an investment certificate.

a/ A dossier comprises:

- Dossier specified at Point a, Clause 1 of this Article;

- Report on goods trading and directly related activities of licensed projects, made according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise may make a written explanation clearly stating the reason.

b/ After obtaining the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant an investment certificate. The investment certificate is concurrently the business license.

c/ Regulations on business lines in investment certificates comply with form HD-1 promulgated together with this Circular.

3. If a foreign-invested enterprise possessing an investment certificate for carrying out goods trading and directly related activities wishes to adjust the content of goods trading and directly related activities, it shall carry out procedures for adjustment of investment certificate or procedures for adjustment of investment certificate together with grant of business license (if it so requests).

a/ In case of adjustment of an investment certificate, a dossier comprises:

- Dossier of verification for adjustment of investment certificate as prescribed by the law on investment;

- A written explanation about the satisfaction of conditions for carrying out goods trading and directly related activities according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the achievement of the adjusted content;

- Report on goods trading and directly related activities, made according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

b/ In case of adjustment of investment certificate together with grant of business license, a dossier comprises:

- Dossier specified at Point a, Clause 3 of this Article;

- Application for a business license, made according to form MD-1 promulgated together with this Circular.

c/ Within three working days, after receiving the dossier, the dossier-receiving agency shall check the validity of the dossier and send a dossier to consult the Ministry of Industry and Trade. If the dossier is invalid, the dossier-receiving agency shall notify such in writing to the investor for modifying and supplementing the dossier.

Within 15 working days, after receiving a dossier, the Ministry of Industry and Trade shall send its written opinion on issues under its management.

In case of only adjusting the investment certificate, within seven working days after receiving the acceptance opinion of the Ministry of Industry and Trade, the competent state management agency shall adjust the content of goods trading and directly related activities in the investment certificate.

In case of adjusting investment certificate together with grant of business license, within 15 working days after receiving the acceptance opinion of the Ministry of Industry and Trade, the competent state management agency shall adjust the content of carrying out goods trading and directly related activities in the investment certificate together with granting a business license according to form GP-1 promulgated together with this Circular.

d/ Regulations on business lines in the investment certificate comply with form HD-1 promulgated together with this Circular.

Article 12. Grant of licenses to supplement the operation objective of goods trading and directly related activities

1. If a foreign-invested enterprise possessing an investment certificate wishes to supplement the operation objective of goods trading and directly related activities, it shall carry out procedures for adjustment of investment certificate and grant of business license. A dossier comprises:

a/ Dossier of verification for adjustment of investment certificate as prescribed by the law on investment;

b/ Dossier of application for business license comprises:

- Application for a business license, made according to form MD-1 promulgated together with this Circular;

- A written explanation about the satisfaction of conditions for goods trading and directly related activities, made according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in carrying out goods trading and directly related activities;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

2. After having the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall adjust and supplement the operation objective of goods trading and directly related activities in the investment certificate and grant a business license according to form GP-1 promulgated together with this Circular. Regulations on business lines in the investment certificate comply with form HD-1 promulgated together with this Circular.

Article 13. Modification and supplementation of business licenses for goods trading and directly related activities

1. Changing the registered information

a/ A dossier comprises:

- Application for modifying and supplementing business license, made according to form MD-2 promulgated together with this Circular;

- Documents on the changed content;

- Granted business license (original).

b/ Within 10 working days after receiving a complete and valid dossier as prescribed at Point a, Clause 1 of this Article, the competent state agency shall grant a new business license according to form GP-1 promulgated together with this Circular, and concurrently withdraw the granted business license.

2. Supplementing the content of goods trading and directly related activities

a/ A dossier comprises:

- Application for modifying and supplementing business license, made according to form MD-2 promulgated together with this Circular;

- A written explanation about the satisfaction of conditions for carrying out goods trading and directly related activities, made according to form MD-6 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the implementation of the supplementing content;

- Report on goods trading and directly related activities already licensed, made according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

- Granted business license (original).

b/ Within three working days after receiving a dossier, the dossier-receiving agency shall check the validity of the dossier and send a dossier to consult the Ministry of Industry and Trade. If the dossier is invalid, the dossier-receiving agency shall notify such in writing to the investor for modifying and supplementing the dossier.

Within 15 working days after receiving the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant a business license according to form GP-1 promulgated together with this Circular, and concurrently withdraw the granted business license.

Article 14. Re-grant of business licenses

1. A dossier comprises:

a/ Application for re-grant of business license, made according to form MD-3 promulgated together with this Circular.

b/ The identifiable remaining part of the original business license, in case it is torn, burned or destroyed partly; or written certification of the police of the report on the loss of business license, or a written explaination about the reason bearing the commitment of the enterprise in case it is torn, burned or destroyed entirely.

2. Competent state agencies shall grant new business licenses with the same content as that of granted business licenses.

Article 15. Grant of licenses for implementing the operation objective of goods trading and directly related activities after temporarily stopping or terminating other operation objectives

1. If a foreign-invested enterprise temporarily stops or terminates the licensed operation objective and only implements the operation objective of goods trading and directly related activities, the competent state agency shall send a dossier to consult the Ministry of Industry and Trade about adjustment of the operation objective of such enterprise.

2. After having the opinion of the Ministry of Industry and Trade, the competent state agency shall consider and adjust investment certificates and business licenses.

Chapter III

LICENSES FOR SETTING UP RETAIL ESTABLISHMENTS

Article 16. Licenses for setting up retail establishments

1. If a foreign-invested enterprise wishes to set up a retail establishment in addition to the first retail establishment, it shall carry out procedures for applying for a license for setting up retail establishments, a dossier comprises:

a/ Dossier of verification for grant or adjustment of investment certificate as prescribed by the law on investment;

b/ Dossier of application for a license for setting up retail establishments, comprising:

- Application for a license for setting up retail establishments, made according to form MD-4 promulgated together with this Circular;

- A written explanation about the satisfaction of conditions as prescribed in Clauses 1 and 2, Article 7 of this Circular;

- Document of the provincial-level People’s Committee that approves the working result of the council for economic demand assessment as prescribed in Article 7 of this Circular.

- Report on goods trading and directly related activities according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise may make a written explanation clearly stating the reason.

2. After having the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant a license for setting up retail establishments according to form GP-2 promulgated together with this Circular.

Article 17. Modification and supplementation of licenses for setting up retail establishments

1. Changing the registered information

a/ A dossier comprises:

- Application for modification and supplementation of the license for setting up retail establishments, made according to form MD-5 promulgated together with this Circular;

- Granted license for setting up retail establishment (original).

b/ Within 10 working days after receiving a complete and valid dossier as prescribed at Point a, Clause 1 of this Article, the competent state agency shall grant a new license for setting up retail establishments, and concurrently withdraw the granted license for setting up retail establishments.

2. Changing the size of a retail establishment

a/ A dossier comprises:

- Application for modification and supplementation of the license for setting up retail establishments, made according to form MD-5 promulgated together with this Circular;

- Documents related to the change of the size of the retail establishment;

- Document of the provincial-level People’s Committee that approves the working result of the council for economic demand assessment if the enterprise increases the size of its retail establishment up to the level subject to economic demand assessment as prescribed in Article 7 of this Circular.

- Report on goods trading and directly related activities, made according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

- The granted license for setting up retail establishments (original).

b/ Within three working days after receiving a dossier, the dossier-receiving agency shall check the validity of the dossier and send a dossier to consult the Ministry of Industry and Trade. If the dossier is invalid, the dossier-receiving agency shall notify such in writing the investor for modifying and supplementing the dossier.

Within 15 working days after receiving the dossier, the Ministry of Industry and Trade shall send its written opinion on issues under its management.

Within 15 working days, after receiving the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant a new license for the setting up of retail establishment according to form GP-2 promulgated together with this Circular, and concurrently withdraw the granted license for the setting up of retail establishment.

3. Supplementing the operational contents of retail establishments

a/ A dossier comprises:

- Application for modification and supplementation of the license for setting up retail establishments, made according to form MD-5 promulgated together with this Circular;

- Documents proving the financial capability and experience of the investor in the detailed implementation of the supplemented content;

- Report on goods trading and directly related activities already licensed, made according to form BC-3 promulgated together with this Circular;

- Vouchers of tax offices on the fulfillment of the enterprise income tax liability for the last two consecutive years. If having no or insufficient vouchers, an enterprise shall make a written explanation clearly stating the reason.

- The granted license for setting up retail establishments (original).

b/ Within three working days after receiving a dossier, the dossier-receiving agency shall check the validity of the dossier and send a dossier to consult the Ministry of Industry and Trade. If the dossier is invalid, the dossier-receiving agency shall notify such in writing to the investor for modifying and supplementing the dossier.

Within 15 working days after receiving the dossier, the Ministry of Industry and Trade shall send its written opinion on issues under its management.

Within 15 working days after receiving the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant a new license for setting up retail establishments according to form GP-2 promulgated together with this Circular, and concurrently withdraw the granted license for setting up retail establishments.

Article 18. Re-grant of licenses for setting up retail establishments

1. A dossier comprises:

a/ Application for re-grant of a license for setting up retail establishments, made according to form MD-3 promulgated together with this Circular;

b/ The identifiable remaining part of the original business license in case it is torn, burned or destroyed partly; or written certification of the police of the report on the loss of business license, or a written explaination about the reason bearing the commitment of the enterprise in case it is torn, burned or destroyed entirely.

2. The competent state agency shall grant a new license for setting up retail establishments with the same content as that of the granted license.

Article 19. Grant of licenses for setting up retail establishments in addition to the lawfully set up first establishment which have not yet been licensed under Decree No. 23/2007/ND-CP

1. A dossier comprises:

- Application for a license for setting up retail establishments, made according to form MD-4 promulgated together with this Circular;

- Report on the investment and operation of the retail establishment for which a license for setting up retail establishments is applied.

2. After having the acceptance opinion of the Ministry of Industry and Trade, the competent state agency shall grant a license for setting up retail establishments according to form GP-2 promulgated together with this Circular.

Chapter IV

WITHDRAWAL OF BUSINESS LICENSES AND LICENSES FOR SETTING UP RETAIL ESTABLISHMENTS

Article 20. Withdrawal of business licenses and licenses for setting up retail establishments

Competent state agencies shall withdraw business licenses or licenses for setting up retail establishments in the following cases:

1. Foreign-invested enterprises engaged in goods trading and directly related activities commit violations of law which are subject to withdrawal of business license or license for setting up retail establishment.

2. Investment projects on goods trading and directly related activities terminate their operation in accordance with law.

3. Competent state agencies withdraw investment certificates in accordance with the investment law.

Chapter V

THE REPORTING REGIME

Article 21. The reporting regime of enterprises

1. Foreign-invested enterprises engaged in goods trading and directly related activities shall implement periodical and irregular reporting regimes as prescribed by Vietnamese law; and make reports under Clauses 2, 3 and 4 of this Article.

2. Reporting on traders selling goods for export

Before January 30 every year, foreign-invested enterprises already licensed to exercise the right to export shall send reports on traders selling goods for export, made according to form BC-1 promulgated together with this Circular, to competent state agencies.

3. Reporting on traders buying goods for import

Before January 30 every year, foreign-invested enterprises already licensed to exercise the right to import but having no right to distribution shall send reports on traders buying goods for import, made according to form BC-2 promulgated together with this Circular, to competent state agencies.

4. General report

Before January 30 every year, foreign-invested enterprises already licensed to carry out goods trading and direct related activities shall send general reports, made according to form BC-3 promulgated together with this Circular, to competent state agencies.

5. The above reports serve as a basis for monitoring activities of enterprises.

Article 22. Reports of local state management agencies

1. Biannually, before January 15 and July 15 each year, competent state agencies shall summarize and report to the Ministry of Industry and Trade on the grant, re-grant, modification, supplementation and withdrawal of licenses granted for investment projects involving goods trading and direct related activities, and concurrently state recommendations and proposals according to form BC-4 promulgated together with this Circular.

2. Annually, before February 28, competent state agencies shall summarize and report to the Ministry of Industry and Trade on the operation of foreign-invested enterprises engaged in goods trading and directly related activities, and concurrently state recommendations and proposals according to form BC-5 promulgated together with this Circular.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 23. Responsibility for implementation

1. Provincial-level Planning and Investment Departments, the management boards of economic zones, industrial parks and export- processing zones, and provincial-level Industry and Trade Departments shall assist their People’s Committees in performing the state management of goods trading and directly related activities of foreign-invested enterprises in Vietnam as prescribed in Decree No. 23/2007/ND-CP and guided in this Circular.

2. Any problems arising in the course of implementation should be reported to the Ministry of Industry and Trade for timely handling.

Article 24. Effect

1. This Circular takes effect on June 7, 2013. This Circular applies to all cases that have not yet been licensed or have not yet had licenses modified and supplemented, or re-granted, counting to the end of the effective date of this Circular.

2. This Circular replaces Circular No. 09/2007/TT-BTM of July 17, 2007, of the Ministry of Trade (now the Ministry of Industry and Trade), guiding the Government’s Decree No. 23/2007/ND-CP of February 12, 2007, detailing the Commercial Law regarding goods trading and directly related activities of foreign-invested enterprises in Vietnam, and Circular No. 05/2008/TT-BCT of April 14, 2008, of the Ministry of Industry and Trade, amending and supplementing Circular No. 09/2007/TT-BTM of July 17, 2007, of the Ministry of Trade.

For the Minister of Industry and Trade
Deputy Minister
HO THI KIM THOA

Appendix 

LIST OF FORMS

(To the Ministry of Industry and Trade’s Circular No. 08/2013/TT-BCT of April 22, 2013)

Form MD-6. Written explanation about the satisfaction of conditions for goods trading and directly related activities

WRITTEN EXPLANATION ABOUT THE SATISFACTION OF CONDITIONS FOR GOODS TRADING AND DIRECTLY RELATED ACTIVITIES

I. Contents of explanation about the conformity with the market opening commitment

1. Nationality of foreign investor: Based on the place of registration of establishment (for institutional investors) or nationality (for individual investors), foreign investors shall determine whether or not they belong to a country or territory that has acceded to a treaty to which the Socialist Republic of Vietnam is a contracting party, in which Vietnam has a market-opening commitment on goods trading and directly related activities.

2. Form of investment: Based on the form of investment and the roadmap for goods trading and directly related activities prescribed in Appendix No. 01 to Decision No. 10/2007/TT-BTM of May 21, 2007, of the Ministry of Trade (now the Ministry of Industry and Trade), publishing the roadmap for goods trading and directly related activities (Decision No. 10/2007/TT-BTM), and relevant laws, foreign investors shall explain the conformity of the form of investment to the field of investment. 

II. Content of explanation about the satisfaction of conditions for goods trading (if applying for a license for goods trading)

1. Goods to be traded: Foreign investors shall draw up a list of goods for which they apply for licenses to exercise the right to export, the right to import or the right to distribution, by title of goods heading or name of each goods item and corresponding HS code, and base themselves on the list of goods and the roadmap for exercising the right to export, the right to import and the right to distribution provided in Appendices 02, 03 and 04 to Decision No. 10/2007/QD-BTM, and relevant laws, to explain the conformity of their goods with the market opening roadmap.

2. Scope of operation: Based on the provisions on goods trading in Decree No. 23/2007/ND-CP of February 12, 2007, detailing the Commercial Law regarding goods trading and directly related activities of  foreign-invested enterprises in Vietnam (Decree No. 23/2007/ND-CP), the Commercial Law and relevant laws, foreign investors shall explain the scope of operation being the right to export, the right to import, the right to distribution (wholesale and retail, setting up of retail establishments, commercial franchising and goods purchase and sale agency), specifically:

a/ Methods of exporting, importing and purchasing in Vietnam goods for exercising the rights to export, import and distribution (clearly explain procedures to be completed for customs clearance for exported and imported goods; and procedures for purchase of goods in Vietnam).

b/ Process of exercising the rights to export, import and distribution:

- Process of exercising the right to export: Explain the order of circulation of goods from the time of receipt of goods from the seller to the time of completion of export procedures associated with the condition of not opening places for purchasing goods for export.

- Process of exercising the right to import: Explain the order of circulation of goods from the time of completion of import procedures to the time of delivery of goods to the buyer associated with the condition of not organizing or participating in the distribution system.

- Process of exercising the right to distribution: Explain the order of circulation of goods from the time of completion of import procedures to the time of delivery of goods to the buyer (for goods imported for distribution) and the order of circulation of goods from the time of receipt of goods from the seller to the time of delivery of goods to the buyer (for goods purchased in Vietnam for distribution) and the method of goods sale (for goods retailed for consumption).

c/ Target markets and customers.

d/ Plans on goods storage and preservation (for cases related to environmental sanitation, fire and explosion safety, explain remedial measures).

dd/ Issues related to business conditions (for exported, imported or distributed goods subject to business conditions, foreign investors shall explain the satisfaction of relevant business conditions prescribed by law).

3. Explanation about the capability of market entry and development.

III. Content of explanation about the satisfaction of conditions for activities directly related to goods trading (if applying for a license for goods trading)

1. Trading activities:  Based on activities directly related to goods trading prescribed in Decree No. 23/2007/ND-CP, relevant laws and the corresponding roadmaps of implementation in Vietnam’s Schedule of Commitments on Trade in Services with WTO, foreign investors shall explain the conformity of trading activities with the market opening roadmaps.

2. Scope of operation: Based on the provisions on activities directly related to goods trading in Decree No. 23/2007/ND-CP, the Commercial Law and Vietnam’s Schedule of Commitments on Trade in Services with WTO, foreign investors shall explain the scope of activities directly related to the purchase and sale of goods for which they apply for licenses, clearly stating:

- CPC code of business activities (according to the United Nations Central Product Classification).

- Content of business activities (description of the nature, characteristics and process of business activities, etc).

- Target markets and customers.

- Issues related to business conditions (for conditional business activities, foreign investors should explain the satisfaction of relevant business conditions prescribed by law).

3. Explanation about the capability of market entry and development.

IV. Other contents

1. In case foreign investors already have a partner in Vietnam, they shall clearly explain the current relation with the partner, the plan for changing this relation after obtaining a business license and the plan for resolving possible contradictions and conflicts (if any) with such partner.

2. In case foreign investors have representative offices and branches currently operating in Vietnam, they should report on the operation of their representative offices and branches and their operation plans after obtaining a business license.

3. Other contents (when necessary or requested).

…, date……………….

At-law representative of enterprise    (Signature, full name and seal)

Form HD-2

CLASSIFICATION OF ENTERPRISES BY CONTENT OF ACTIVITY IN REPORTS OF LOCAL STATE MANAGEMENT AGENCIES (FORMS BC-4 AND BC-5)

1. Enterprises exercising the right to export or the right to import are those only exercising the right to export and the right to import without conducting any other business lines.

2. Enterprises engaged in goods trading and directly related activities are those exercising the right to export, the right to import and the right to distribution, regardless of being associated with auxiliary activities, and/or activities directly related to goods trading (as prescribed in Decree No. 23/2007/ND-CP) without conducting any other business lines.

3. Enterprises exercising the right to export, the right to import and conducting other business lines are those concurrently exercising the right to export and the right to import and conducting other business lines other than goods trading and directly related activities (as prescribed in Decree No. 23/2007/ND-CP).

4. Enterprises engaged in goods trading and directly related activities and other business lines are those exercising the right to export, the right to import, the right to distribution, regardless of being associated with auxiliary activities, and/or activities directly related to goods trading (as prescribed in Decree No. 23/2007/ND-CP) and concurrently conducting other business lines.-