Decree No. 35/2020/ND-CP detailing the Competition Law

DECREE

Detailing a number of articles of the Competition Law^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the June 12, 2018 Competition Law;

At the proposal of the Minister of Industry and Trade;

The Government promulgates the Decree detailing a number of articles of the Competition Law.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree details Articles 9, 10, 13, 26, 31, 32, 33, 36, 56 and 82 of the Competition Law.

Article 2.Interpretation of terms

1. Controlling and dominating another enterprise or one of its business lines means one of the following cases where:

a/ The acquiring enterprise acquires the right to own over 50% of charter capital or over 50% of voting shares of the acquired enterprise;

b/ The acquiring enterprise acquires the right to own or use over 50% of assets of the acquired enterprise in all or one of the latter’s business lines;

c/ The acquiring enterprise has one of the following rights:

- To directly or indirectly decide on appointment, relief from duty or removal from office of majority or all of members of the Board of Directors, the chairperson of the Members’ Council, or the director or director general of the acquired enterprise;

- To decide to modify and supplement the charter of the acquired enterprise;

- To decide on important matters in business operations of the acquired enterprise, including selection of forms of business organization; selection of business lines, locations and forms; selection and adjustment of business scale and lines; and selection of forms and modes of raising, distribution and use of business capital of the acquired capital.

2. An organizationally and financially associated group of enterprises (below referred to as group of associated enterprises) means a group of enterprises controlled and dominated by one or more than one enterprise in the group or having a common administration section.

3. Market share threshold means a numerical value of market share of an enterprise in the relevant market identified under Article 10 of the Competition Law. For example, an enterprise has a market share of 30 percent (30%) in the relevant market means that its market share threshold is 30.

4. Total of squares of market share thresholds of enterprises in the relevant market shall be calculated by the following formula:

Total of squares of market share thresholds = S₁²+ S₂²+ … S_(n)²

In which S₁… S_(n)mean market share thresholds of enterprises numbered 1 thru n.

For example: In the same relevant market, there are 3 enterprises that have market shares of 30%, 30% and 40%, respectively. Total of squares of market share thresholds of these enterprises in the relevant market shall be 30²+ 30²+ 40²= 3,400.

5. Market entry and expansion barrier means an element that bars an enterprise from entering a market or expanding its market.

Chapter II

IDENTIFICATION OF RELEVANT MARKETS AND MARKET SHARES

Section 1

IDENTIFICATION OF RELEVANT MARKETS

Article 3.Relevant markets

1. A relevant market shall be identified on the basis of a relevant product market and relevant geographical market.

2. In the course of identification of relevant markets, the National Competition Commission may consult line agencies, enterprises, and organizations and individuals that have expert knowledge.

Article 4.Identification of relevant product markets

1. Relevant product market means a market of goods or services that are substitutable in terms of characteristics, use purposes and prices.

2. Goods or services are considered substitutable in terms of characteristics if they are identical or similar in one or several of the following elements:

a/ Substantial features;

b/ Ingredients or composition;

c/ Physical or chemical properties;

d/ Technical functions;

dd/ Side effects on users;

e/ Consumability of users;

g/ Other particular properties.

3. Goods or services are considered substitutable in terms of use purposes if they have identical main use purposes.

4. Goods or services are considered substitutable in terms of prices if their prices are different by no more than 5% in similar trading conditions. In case of a price difference of over 5%, the National Competition Commission shall identify goods or services that are substitutable in terms of prices based on several elements specified in Clause 5 or by the method provided in Clause 6 of this Article.

5. In case the identification of substitutable properties of goods or services under Clauses 2, 3 and 4 of this Article is not enough to conclude on a relevant product market, the National Competition Commission shall additionally consider one or several of the following elements:

a/ A change in demand for a type of goods or services upon a fluctuation in price of another type of goods or service;

b/ Expenses and time needed for customers to decide to buy or use another good or service;

c/ Use duration of goods or services;

d/ Consumption practices;

dd/ Regulations that affect substitutability of goods or services;

e/ Distinctiveness of buying or selling prices for different groups of customers;

g/ Supply substitutability of a certain type of goods or services specified in Article 5 of this Decree.

6. When necessary, the National Competition Commission may identify price substitutability of goods or services by the following method:

Goods or services are considered substitutable in terms of prices if at least 35% of a random sample quantity representing 1,000 consumers living in a relevant geographical area decide or intend to buy other goods or services with characteristics or use purposes identical to those of goods or services they are currently using or intend to use in case prices of such goods or services increase by over 10% and remain unchanged for 6 consecutive months.

In case the number of consumers living in a relevant geographical area mentioned at this Point is smaller than 1,000, the random sample quantity must represent at least 50% of the total number of consumers in such area.

Article 5.Identification of supply substitutability

Supply substitutability means capability of enterprises currently producing or trading in a type of goods or services to increase the production output or sales turnover of such goods or service or possibility that other enterprises commence or shift to producing or trading in such goods or service for under 6 months without seeing any considerable increase in costs if the price of such goods or service increases by between 5% and 10%.

Article 6.Identification of relevant product markets in special cases

1. A relevant product market in a special case may be identified as a market of a special good or service or a group of special goods or services based on characteristics of such good(s) or service(s), consumption practices or special trading methods, including information technology-based methods.

2. When identifying a relevant product market in the case specified in Clause 1 of this Article, markets of supplementary goods or services for relevant products may be additionally considered.

3. Supplementary products for relevant products mean goods or services to be used to improve utilities or effects or necessary for use of relevant products. Accordingly, when prices of supplementary products increase or decrease, the demand for relevant products is likely to decrease or increase correspondingly.

Article 7.Identification of relevant geographical markets

1. Relevant geographical market means a specific geographical area where substitutable goods or services are provided under similar competition conditions and which is significantly different from neighboring geographical areas.

2. Boundaries of a geographical area mentioned in Clause 1 of this Article shall be identified based on the following elements:

a/ Geographical areas where business establishments of enterprises distributing relevant products or services are located;

b/ Business establishments of other enterprises located in neighboring geographical areas that are close enough to the geographical areas mentioned at Point a of this Clause for their goods and services to participate in competition with relevant products or services;

c/ Cost of transportation of goods or provision of services;

d/ Time of transportation of goods or provision of services;

dd/ Market entry or expansion barriers;

e/ Consumption practices;

g/ Expenses and time for customers to buy goods or services;

3. A geographical area is considered having similar competition conditions and significantly different from neighboring geographical areas if satisfying one of the following conditions:

a/ Transportation cost and time make prices of goods or services increase by no more than 10%;

b/ There exists one of market entry or expansion barriers specified in Article 8 of this Decree.

Article 8.Market entry or expansion barriers

Market entry or expansion barriers include:

1. Legal barriers created by the State’s regulations and policies, including regulations on import duty and quotas; technical regulations; conditions and procedures for goods production and trading or service provision; regulations on use of goods or services; professional standards and other administrative decisions of state management agencies.

2. Financial barriers, including expenses for investment in goods production and trading or service provision, and accessibility to capital, loans and other financial sources of enterprises.

3. Initial expenses for market entry which enterprises cannot recover when withdrawing from markets.

4. Barriers to access to and possession of supply sources and essential infrastructure facilities for production and trading; networks for goods or service distribution and consumption in markets.

5. Consumption practices.

6. Business customs and practices.

7. Barriers related to the exercise of rights by organizations and individuals to intellectual assets, including copyright and related rights, industrial property rights and rights to plant varieties as provided by the law on intellectual property.

8. Other market entry or expansion barriers.

Section 2

IDENTIFICATION OF MARKET SHARES

Article 9.Principles of identification of market shares of enterprises in relevant markets

1. Market shares of enterprises in relevant markets shall be identified by one of the methods specified in Article 10 of the Competition Law.

2. In the course of identification of market shares, the National Competition Commission may consult line agencies, enterprises, and organizations and individuals that have expert knowledge.

Article 10.Identification of market shares of groups of associated enterprises

1. Sales turnover, costs for purchase, and quantity of a type of goods or services sold and purchased of a group of associated enterprises shall be identified as follows:

a/ Sales turnover, costs for purchase, and quantity of a type of goods or services sold and purchased for identification of the market share of a group of associated enterprises shall be calculated to be equal to the total of sales turnover, costs for purchase, and quantity of such type of goods or services sold and purchased of all enterprises in the group;

b/ Sales turnover, costs for purchase, and quantity of a type of goods or services sold and purchased of a group of associated enterprises exclude sales turnover, costs for purchase, and quantity of goods or services sold and purchased from the sale of goods or provision of services among enterprises in the group.

2. Market shares of enterprises in a group of associated enterprises constitute the market share of such group.

Chapter III

ASSESSMENT OF SIGNIFICANT COMPETITION RESTRAINING IMPACTS OR POSSIBLE SIGNIFICANT COMPETITION RESTRAINING IMPACTS OF CARTELS

Article 11.Contents of assessment of significant competition restraining impacts or possible significant competition restraining impacts of cartels

1. The National Competition Commission shall assess significant competition restraining impacts or possible significant competition restraining impacts of cartels in the cases specified in Clauses 3 and 4, Article 12 of the Competition Law.

2. The assessment of significant competition restraining impacts or possible significant competition restraining impacts of cartels shall be based on one or several of the following elements:

a/ Developments and trend of change of market share thresholds of enterprises joining cartels, to be assessed in comparison with other enterprises being competitors not joining cartels;

b/ Market entry or expansion barriers, to be assessed to identify competition restraining impacts or possible competition restraining impacts of cartels based on elements affecting decision making by enterprises when entering or expanding markets as specified in Article 8 of this Decree;

c/ Restrictions on technology research, development or innovation or restrictions on technology capacity, to be assessed to identify competition restraining impacts or possible competition restraining impacts of cartels on objectives of technology research, development or innovation or improvement of technology capacity in relevant sectors;

d/ Reduction of accessibility to or possession of essential infrastructure facilities, to be assessed based on essentiality of infrastructure facilities to production and business operations and costs and time for enterprises being competitors not joining cartels to access or possess such infrastructure facilities or similar infrastructure facilities;

dd/ Increase of costs and time of customers in buying goods or services from enterprises joining the cartels or when shifting to buy other relevant goods or services, to be identified through comparing necessary costs and time of customers when buying goods or services of enterprises joining cartels or when shifting to buy goods or services of enterprises being competitors before and after cartels are established;

e/ Obstruction to competition in the market through controlling particular elements in sectors related to enterprises joining cartels, to be identified based on dominance of such particular elements over competition activities of enterprises in the market.

3. A cartel is considered exerting no significant competition restraining impacts or unlikely to exert significant competition restraining impacts when:

a/ The combined market share of enterprises joining the cartel is smaller than 5%, for cartels among enterprises in the same relevant market; or,

b/ The market share of each enterprise joining the cartel is smaller than 15%, for cartels among enterprises engaged in different stages in the same production, distribution or supply chain for a certain type of goods or services.

4. In the course of assessment of competition restraining impacts and possible competition restraining impacts of cartels, the National Competition Commission may consult related agencies, organizations and individuals and request enterprises joining cartels to provide necessary information and documents.

Chapter IV

IDENTIFICATION OF SIGNIFICANT MARKET POWER

Article 12.Contents of identification of significant market power of enterprises and groups of enterprises

1. The National Competition Commission shall identify significant market power of an enterprise or a group of enterprises under Article 26 of the Competition Law based on one or several of the following elements:

a/ Shares of enterprises in a relevant market, to be assessed through comparing market shares of enterprises or groups of enterprises in the relevant market;

b/ Financial capacity and size of the enterprise or group of enterprises, to be assessed based on financial capacity and accessibility to capital, loans and other financial sources, total capital sources, total assets, number of employees, production scale, and goods or service distribution and sale network of the enterprise or group of enterprises in comparison with other enterprises being competitors;

c/ Market entry and expansion barriers to other enterprises, to be assessed based on elements affecting decision making by enterprises upon their market entry or expansion as specified in Article 8 of this Decree;

d/ Ability to hold, access and control the market for distribution and sale of goods and services or supply sources of goods and services, to be assessed based on advantages of the enterprise or group of enterprises compared to competitors thanks to its/their holding or control of the network of distribution and sale of goods and services or supply sources of goods and services in the market;

dd/ Advantages in technology and technical infrastructure facilities of the enterprise or group of enterprises, to be assessed based on advantages in technology and technical infrastructure facilities owned or used by the enterprise or group of enterprises for production and business compared to its/their competitors;

e/ Rights to own, hold and access infrastructure facilities, to be assessed to identify advantages of the enterprise or group of enterprises compared to its/their competitors based on essentiality and accessibility of infrastructure facilities for goods production and service provision;

g/ Rights to own and use subject matters of intellectual property rights, to be assessed to identify advantages of the enterprise or group of enterprises compared to its/their competitors based on essentiality and accessibility of subject matters of intellectual property rights of enterprises in goods production and service provision;

h/ Possibility to shift to supply or demand sources of other related goods and services, to be identified based on expenses and time necessary for customers and enterprises to shift to buy or sell goods and services of other enterprises in the same relevant market;

i/ Particular elements in sectors in which the enterprise or group of enterprises is/are doing business, to be assessed to identify advantages of the enterprise or group of enterprises compared to its/their competitors in specific conditions of such sectors.

2. In the course of identification of significant market power of enterprises or groups of enterprises, the National Competition Commission may consult related agencies, organizations and individuals and request enterprises to provide necessary information and documents.

Chapter V

ECONOMIC CONCENTRATION

Article 13.Notification thresholds of economic concentration

1. An enterprise intending to participate in economic concentration, except those specified in Clause 2 of this Article, shall notify its intention to the National Competition Commission before performing economic concentration under Clause 1, Article 33 of the Competition Law if falling into one of the following cases:

a/ Total assets in the Vietnamese market of such enterprise or a group of associated enterprises of which such enterprise is a member reach at least VND 3 trillion in the fiscal year preceding the planned year of economic concentration;

b/ Total sales turnover or costs for purchase in the Vietnamese market of such enterprise or a group of associated enterprises of which such enterprise is a member reach(es) at least VND 3 trillion in the fiscal year preceding the planned year of economic concentration;

c/ Traded value of economic concentration reaches at least VND 1 trillion;

d/ Combined market share of enterprises intending to participate in economic concentration represents at least 20% in a relevant market in the fiscal year preceding the planned year of economic concentration.

2. An enterprise being a credit institution, an insurance enterprise or a securities company intending to participate in economic concentration under Clause 1, Article 33 of the Law on Competition shall notify its intention to the National Competition Commission before performing economic concentration if falling into one of the following cases:

a/ Total assets in the Vietnamese market of such insurance enterprise or a group of associated insurance enterprises of which such enterprise is a member, or of such securities company or a group of associated securities companies of which such company is a member reach at least VND 15 trillion in the fiscal year preceding the planned year of economic concentration; total assets in the Vietnamese market of such credit institution or a group of associated credit institutions of which such credit institution is a member reach at least 20% of total assets of the system of credit institutions in the Vietnamese market in the fiscal year preceding the planned year of economic concentration;

b/ Total sales turnover or costs for purchase in the Vietnamese market of such insurance enterprise or a group of associated insurance enterprises of which such enterprise is a member reach(es) at least VND 10 trillion in the fiscal year preceding the planned year of economic concentration; total sales turnover or costs for purchase in the Vietnamese market of such securities company or a group of associated securities companies of which such company is a member reach(es) at least VND 3 trillion in the fiscal year preceding the planned year of economic concentration; total sales turnover in the Vietnamese market of such credit institution or a group of associated credit institutions of which such credit institution is a member reaches at least 20% of total sales turnover of the system of credit institutions in the fiscal year preceding the planned year of economic concentration;

c/ Traded value of economic concentration of such insurance enterprise or securities company reaches at least VND 3 trillion; traded value of economic concentration of such credit institution reaches at least 20% of total charter capital of the system of credit institutions in the fiscal year preceding the planned year of economic concentration;

d/ Combined market share of enterprises intending to participate in economic concentration represents at least 20% in a relevant market in the fiscal year preceding the planned year of economic concentration.

3. In case economic concentration is performed outside Vietnam’s territory, notification thresholds of economic concentration must comply with Point a, b or d, Clause 1, or Point a, b or d, Clause 2, of this Article.

Article 14.Preliminary review of economic concentration

1. Within 30 days after receiving a complete and valid dossier of notification of economic concentration, the National Competition Commission shall issue a notice of results of preliminary review of economic concentration, which must cover:

a/ Economic concentration to be performed; or,

b/ Economic concentration to be officially reviewed.

2. Economic concentration shall be performed in one of the following cases:

a/ Combined market share of enterprises intending to participate in economic concentration is under 20% in a relevant market;

b/ Combined market share of enterprises intending to participate in economic concentration is at least 20% in a relevant market and total squares of market share thresholds of enterprises after economic concentration in the relevant market is under 1,800;

c/ Combined market share of enterprises participating in economic concentration is at least 20% in a relevant market, total squares of market share thresholds of enterprises after economic concentration in the relevant market is over 1,800, and increase amplitude of total squares of market share thresholds of enterprises in the relevant market before and after economic concentration is under 100;

d/ Enterprises participating in economic concentration and interrelated in a production, distribution and supply chain for a certain type of goods or services or business lines of enterprises participating in economic concentration that are inputs of or complementary to one another have a market share of under 20% in each relevant market.

3. Upon expiration of the time limit specified in Clause 1 of this Article, if the National Competition Commission issues no notice of results of preliminary review, economic concentration may be performed.

4. Economic concentration shall be officially reviewed when not falling in any case specified in Clauses 2 and 3 of this Article.

Article 15.Contents of assessment of significant competition restraining impacts or possible significant competition restraining impacts of economic concentration

1. Combined market shares of enterprises participating in economic concentration in relevant markets before and after economic concentration.

2. Concentration level in relevant markets before and after economic concentration, to be assessed to identify risks of creating or consolidating market power of enterprises, and possibility of increasing coordination or collusion between enterprises in relevant markets.

3. Relationships between enterprises participating in economic concentration in production, distribution and supply chains for a certain type of goods or services or business lines of enterprises participating in economic concentration that are inputs of or complementary to one another, to be assessed to identify possibility that involved parties after economic concentration create a significant competitive edge compared to enterprises being other competitors in order to bar such competitors from entering markets or eliminate them.

4. Competitive edge brought about by economic concentration in relevant markets, to be subject to overall review based on advantages in product characteristics, production and distribution chains, financial capacity, brands, technology, and intellectual property rights, and other advantages of enterprises after economic concentration in relationship with competitors in relevant markets, which are likely to create or consolidate significant market power of enterprises established after economic concentration.

5. Possibility that an enterprise increases prices or profit-to-sales ratio after economic concentration, to be assessed based on one or several of the following elements:

a/ Expected change in demand in case of possibility that the enterprise increases prices or changes output or trading conditions of its goods or services in the relevant market after economic concentration;

b/ Expected change in supply of enterprises being competitors in the relevant market in case of possibility that the enterprise increases prices or changes output or trading conditions of its goods or services after economic concentration;

c/ Expected change in prices, output or trading conditions of enterprises supplying goods or services being inputs of enterprises participating in economic concentration;

d/ Conditions for and possibility that enterprises being competitors in the market intensify coordination or reach agreement to increase selling prices or profit-to-sales ratio;

dd/ Other elements that affect the possibility of increasing prices or profit-to-sales ratio of enterprises after economic concentration.

6. Possibility that an enterprise eliminates or bars other enterprises from entering or expanding the market after economic concentration, to be identified based on one or several of the following elements:

a/ Level of control of production or business inputs before and after economic concentration;

b/ Competition characteristics in sectors and competitive practices of enterprises participating in economic concentration during the period before economic concentration;

c/ Market entry and expansion barriers specified in Article 8 of this Decree;

d/ Other elements that might lead to the possibility that the enterprise eliminates or bars other enterprises from entering or expanding the market after economic concentration.

7. Special elements in sectors which enterprises participating in economic concentration may consider, when such elements directly impact or considerably change results of the assessment of competition restraining impacts or possible competition restraining impacts of economic concentration specified in this Article.

Article 16.Contents of assessment of positive impacts of economic concentration

The National Competition Commission shall assess positive effects of economic concentration based on one or several of the following elements:

1. Positive effects on development of sectors and science and technology under the State’s strategies and master plans, to be assessed based on the following aspects:

a/ Capability to promote economy of scale and resources of localities, sectors and the society possibly brought about by economic concentration in conformity with objectives set forth in sector development strategies and master plans approved by the Government or Prime Minister;

b/ Level of application of scientific advances and technological innovations by enterprises after economic concentration for improving productivity, quality and business efficiency in order to reduce costs and raise quality of products and services or bring benefits to consumers and the community.

2. Positive effects on development of small- and medium-sized enterprises, to be considered based on evaluation of opportunities and favorable conditions for small- and medium-sized enterprises to enter and expand the market or participate in goods or service production chains and distribution networks expected to be brought about by economic concentration.

3. Enhanced competitiveness of Vietnamese enterprises in the global market, to be assessed based on positive consequences of economic concentration thanks to expansion of domestic production scale and consumption, and export of goods and services of enterprises after economic concentration.

Chapter VI

COMPETITION LEGAL PROCEEDINGS

Section 1

EVIDENCES

Article 17.Right and obligation to prove

1. Complainants have the right and obligation to collect and submit documents and evidences and prove that their complaints are grounded and lawful.

2. Persons with related interests and obligations that make independent claims have the right and obligation to provide documents and evidences and prove that their claims are grounded and lawful.

3. Complainees, investigated parties and persons with related interests and obligations that object complaints or claims of others against them have the right to prove that their objection is grounded and shall provide proofs.

4. The investigation body for the competition case has the obligation to prove acts violating the competition law in the cases specified in Clause 2, Article 80 of the Competition Law.

Article 18.Circumstances and events not required to be proven

The following circumstances and events are not required to be proven:

1. Clear circumstances and events that are known to everyone and recognized by the Council for handling of the competition restraint-related case or the National Competition Commission.

2. Circumstances and events that are recorded in documents and lawfully notarized or certified. In case of a doubt about the reliability of the recorded circumstances or events, the National Competition Commission may request the agency, organization or individual that has provided or submitted such documents to produce the primary source documents or originals thereof.

3. Circumstances, events and documents provided by one party and recognized or not objected by complainees, investigated parties and persons with related interests and obligations. If such complainees, investigated parties and persons with related interests and obligations have their representatives participating in legal proceedings, recognition or non-objection by such representatives is regarded as recognition or non-objection by represented parties, provided it is not beyond the scope of representation.

Article 19.Submission of evidences

1. Competition legal proceedings participants specified in Article 66 of the Competition Law, excluding interpreters, have the right and obligation to submit documents and evidences to the investigation body for the competition case and the Council for handling of the competition restraint-related case in the course of investigation and settlement of the competition case.

2. The submission of evidences under Clause 1 of this Article shall be recorded in a minutes, which must clearly state names, forms, contents and characteristics of evidences; number of copies and pages of evidences and time of receipt; signature or fingerprint of the submitter, signature of the recipient, and seals of the investigation body for the competition case and National Competition Commission. Such minutes shall be made in two copies, one to be included in the competition case file and the other to be handed to the evidence submitter for keeping.

3. Documents and evidences in ethnic minority languages or foreign languages shall be accompanied with their lawfully notarized or certified Vietnamese translations.

4. The time limit for submission of documents and evidences must not exceed the time limit for investigation prescribed in Articles 81 and 87 of the Competition Law or the time limit for additional investigation prescribed in Articles 89, 90 and 91 of the Competition Law or shall be requested by the Chairperson of the National Competition Commission or the Council for handling of the competition restraint-related case.

Article 20.Solicitation of expert assessment, requests for expert assessment

1. Complainants, complainees, investigated parties and persons with related interests and obligations may request the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case to solicit expert assessment or request by themselves expert assessment in case the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case refuses to solicit expert assessment. The right to request expert assessment may be exercised within the time limit for investigation and handling of the competition case.

2. Upon request of complainants, complainees, investigated parties or persons with related interests and obligations or when deeming it necessary, the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case shall issue a decision on solicitation of expert assessment. Such decision must clearly state the name and address of the expert witness, objects and matters that need to be assessed, and specific requests requiring conclusions of the expert witness.

3. If finding expert assessment conclusions unclear and upon request of complainants, complainees, investigated parties or persons with related interests and obligations or when deeming it necessary, the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case shall request the expert witness to explain expert assessment conclusions or summon the expert witness to personally present related contents.

4. Upon request of complainants, complainees, investigated parties or persons with related interests and obligations or when deeming it necessary, the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case shall issue a decision on additional expert assessment in case expert assessment conclusions are unclear or inadequate or when new problems arise in relation to circumstances of the competition case on which expert assessment conclusions have been previously made.

5. Expert re-assessment shall be carried out in case there are grounds to believe that initial expert assessment conclusions are inaccurate or there is a violation.

Article 21.Solicitation of expert assessment of reportedly falsified evidences

1. In case of a reportedly falsified evidence, the evidence provider may withdraw it. If he/she fails to do so, the denouncer may request the investigation body for the competition case or the Council for handling of the competition restraint-related case to solicit expert assessment.

2. In case an evidence falsification shows a sign of crime, the investigation body for the competition case or the Council for handling of the competition restraint-related case shall transfer the case to a competent investigation body for examination in accordance with the criminal procedure law.

3. Falsified evidence providers shall pay compensations for damage caused by the evidence falsification to other organizations and individuals and bear expenses for expert assessment if the investigation body for the competition case or the Council for handling of the competition restraint-related case decides to solicit expert assessment.

Article 22.Entrustment of collection of documents and evidences

1. In the course of handling of a competition case, the National Competition Commission may issue a decision on entrustment for a competent agency specified in Clause 3 of this Article to take testimonies of legal proceedings participants or take other measures to collect documents and evidences and verify circumstances of the competition case.

2. A decision on entrustment must clearly state names and addresses of legal proceedings participants and specific entrusted jobs of collection of documents and evidences.

3. In case the collection of documents and evidences is required to be carried out overseas, upon request of the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case, the National Competition Commission shall carry out procedures for entrustment through a Vietnamese competent agency, or a foreign competent agency of the country that, together with the Socialist Republic of Vietnam, are contracting parties to the treaty regulating this issue, or on the principle of reciprocity provided that such entrustment does not contravene Vietnam’s law and complies with international law and practices.

4. In case no entrustment is made under Clause 1 of this Article or entrustment has been made but no replies are received, the National Competition Commission or the Council for handling of the competition restraint-related case shall settle the competition case based on information and evidences included in the case files.

Article 23.Preservation of evidences

1. In case evidences have been submitted to the investigation body for the competition case or the Council for handling of the competition restraint-related case, such body or Council shall preserve evidences.

2. In case evidences cannot be submitted to the investigation body for the competition case or the Council for handling of the competition restraint-related case, the person who possesses such evidences shall preserve them.

3. In case evidences need to be handed over to a third party for preservation, the head of the investigation body for the competition case or the Council for handling of the competition restraint-related case shall issue a decision and make a minutes to assign such party to preserve evidences. The person who undertakes to preserve evidences shall sign the minutes and take responsibility for evidence preservation and may enjoy remuneration.

4. Destruction of documents and evidences is prohibited.

Article 24.Evaluation of evidences

1. Evaluation of evidences shall be carried out in an adequate, objective, comprehensive and accurate manner.

2. The investigation body for the competition case and the Council for handling of the competition restraint-related case shall evaluate each evidence and relevance between evidences and affirm the legal value of each evidence.

Article 25.Announcement and use of evidences

1. Every evidence shall be publicly announced and used, except the cases specified in Clauses 2 and 3 of this Article.

2. The Chairperson of the National Competition Commission, the investigation body for the competition case and the Council for handling of the competition restraint-related case may not publicly announce and use:

a/ Evidences classified at state secrets in accordance with law;

b/ Evidences related to fine national traditions and customs, professional secrets, business secrets or personal secrets, upon legitimate request of competition legal proceedings participants.

3. In case of necessity, the Chairperson of the National Competition Commission, the investigation body for the competition case and the Council for handling of the competition restraint-related case may publicly announce and use several or all of evidences at a proper time for investigation and handling of the competition case.

4. Legal proceedings-conducting bodies and persons, and legal proceedings participants shall keep evidences confidential that may not be publicly announced and used as specified in Clause 2 of this Article in accordance with law.

Section 2

MEASURES TO DETER ADMINISTRATIVE VIOLATIONS IN THE INVESTIGATION AND HANDLING OF COMPETITION CASES AND ENSURE HANDLING THEREOF

Article 26.Procedures for requesting competent agencies to apply measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof

1. The Chairperson of the National Competition Commission shall request in writing competent agencies to apply measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof.

2. A written request for application of measures to deter administrative violations in the investigation and handling of a competition case and ensure handling thereof must have the following principal contents:

a/ Date of the request;

b/ Name and address of the enterprise, trade association, agency, organization or individual against which/whom measures are requested to be applied to deter administrative violations in the investigation and handling of the competition case and ensure handling thereof;

c/ Summarized acts violating the competition law;

d/ Reason for application of measures to deter administrative violations in the investigation and handling of the competition case and ensure handling thereof;

dd/ Measures that need to be applied to deter administrative violations in the investigation and handling of the competition case and ensure handling thereof, duration and scope of application of such measures, and other specific proposals.

3. Within 3 working days after receiving a written request, the requested agency shall issue a decision on application of measures to deter administrative violations in the investigation and handling of the competition case and ensure handling thereof. In case the requested agency refuses to apply measures to deter administrative violations and ensure handling thereof, it shall reply in writing, clearly stating the reason.

Article 27.Responsibility for coordination in applying measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof

The National Competition Commission shall coordinate with competent agencies in applying measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof.

Article 28.Cancellation of application of measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof

In case reasons for application of measures to deter administrative violations in the investigation and handling of competition cases and ensure handling thereof no longer exist, the Chairperson of the National Competition Commission shall request competent agencies to cancel the applied measures.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 29.Effect

This Decree takes effect on May 15, 2020.

Article 30.Organization of implementation

1. The Ministry of Finance shall guide the estimation, management and use of budget funds to cover expenses arising in the course of appraisal of dossiers of request for enjoyment of exemption for cartels and dossiers of notification of economic concentration, investigation of competition cases, and competition legal proceedings.

2. The Minister of Industry and Trade and Chairperson of the National Competition Commission shall organize the implementation of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC