Decree No. 71/2014/ND-CP dated July 21, 2014 of the Government detailing the Law on Competition on imposition of violation penalties against the Law on Competition

THE GOVERNMENT

Decree No. 71/2014/ND-CPdated July 21, 2014 of the Government detailing the Law on Competition on imposition of violation penalties against the Law on Competition

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Competition dated December 03, 2004;

Pursuant to the Law on handling administrative violations dated June 20, 2012;

At the request of the Minister of Industry and Trade,

The Government issues the Decree detailing the Law on Competition on the imposition of penalties for violations against the Law on Competition.

Chapter I

GENERAL PROVISION

Article 1. Scope of adjustment

1.This Decree regulates the imposition of penalties for the organizations and individuals committing violations against the Law on Competition.

2.The violations against the Law on Competition under the regulations of this Decree include:

a) Violations against regulations on control of anti-competitive practices;

b) Violations against regulations on unhealthy competition;

c) Other violations against regulations of the Law on Competition.

Article 2. Objects of applications

This Decree applies to:

1.Business organizations and individuals(hereinafter referred to as enterprise) and industry associations in Vietnam (hereinafter referred to as association) that are prescribed in Article 2 of the Law on Competition.

2.Other organizations and individuals committing violations prescribed in the regulations of Section 5 Chapter II of this Decree.

Article 3. Violation penalties against Law on Competition

1.Any organization or individual committing violations against the Law on Competition shall be penalized by either:

a) warnings;

b) fine.

2.Depending on the nature and severity of the violations, any organization or individual committing violations against the Law on Competition may face the additional penalties such as:

a) revocation of Certificate of Enterprise registration;  suspension of practice certificate and license;

b) confiscation of exhibits and means used for activities breaching the Law on Competition including the confiscation of profit from the violations.

3.In addition to the penalties prescribed in the regulations in Clause 1 and Clause 2 this Article, any enterprise committing violations may be liable to some remedial measures as follows:

b) The enterprise abusing firms dominant market positions must be re-structured;

b) The acquirer or consolidated enterprise must be separated; the contributed capital must be resold;

c) The rectification must be published;

d) The illegal clauses must be removed from the agreement;

dd) The unused inventions, useful remedies and industrial designs must be used or resold; 

e) The obstacles preventing other enterprises from participating in the market or developing their business must be removed;

g) The conditions for the development of technology that are prevented by the enterprise must be restored;

h) The disadvantages to the customers must be deleted;

i) The contract clauses changed without legitimate reasons must be restored;

k) The contract that is rescinded without legitimate reasons must be restored.

Article 4. Determination of fines for violations against regulations on control of anti-competitive practices

1.The fines for the violations against regulations on the control of the anti-competitive practices shall be determined according to the percentage of the turnover or value of the goods and services related to the violations within the time each enterprise commits violations.

2.In case the turnover or value of the goods and services related to the violations prescribed in the regulations in Clause 1 this Article cannot be determined, the fines shall be determined according to the percentage of the turnover of the enterprises committing violations of the financial year before the year in which the violations are committed.

3.The competent authorities shall determine the fines in accordance with the regulations in Clause 1 and Clause 2 this Article according to the information and figures recorded in the accounting books provided by the enterprises. In case the information and figures provided by the enterprises are incorrect, the competent authorities shall use the information and figures that they collect themselves or the available information and figures.

4.The competent authorities shall determine the percentage prescribed in Clause 1 and Clause 2 according to:

a) Anti-competitive decree of the violations;

b) Extend of damage caused by the violations;

c) Anti-competitive potential of the wrongdoers;

d) The time when the violations are committed;

dd) Scope of violations;

e) Profits from the violations;

g) Other essential factors related to each specific case.

5.In case of any mitigating circumstance or aggravating circumstance prescribed in Article 85 of the Decree No.116/2005/ND-CP detailing the implementationof some articles of the Law in Competition, the fine prescribed in Clause 1 this Article might be correspondingly reduced or raised by 15%.

6.In any circumstance, the fine for each violation against the regulations on the control of anti-competitive practices must not exceed the maximum fine of such violation as prescribed in Sections 1, 2 and 3 Chapter II of this Decree.

Article 5. Fine rates for violations against regulations on unhealthy competition and other violations against Law on Competition

1.The maximum fine for a violation against the regulations on the unhealthy competition or violation against the Law on Competition is VND 100 million with regard to an individual and VND 200 million with regard to a organization.

2.The fine for any violation prescribed in Section 4 and Section 5 Chapter II of this Decree shall apply to such violation committed by an organization. The fine given to any individual committing the same violation shall be the half of the fine of an organization.

3.The specific fine for a violation against the regulations on unhealthy competition or another violation against the Law on Competition is the average of the prescribed fine bracket for such violation; the fine can be reduced but not lower than the minimum fine in the fine bracket in case of mitigating circumstances; the fine can be raised but not higher than the maximum fine in the fine bracket in case of aggravating circumstances.

4.In case of each mitigating circumstance or aggravating circumstance prescribed in the Article 85 of the Decree No.116/2005/ND-CP detailing the implementationof some articles of the Law on Competition, the fine determined according to the regulations in Clause 3 this Article might be correspondingly reduced or raised by 15%.

Article 6. Damage compensation caused by violations against Law on Competition

1.Any organization or individual committing violations against the Law on Competition must compensate for the damage to the interests of the State and lawful rights and interests of other entities.

2.The compensation mentioned in Clause 1 this Article is prescribed in the regulations of the civil law.

Article 7. Time limit for filing complaints on competitions cases and decision issuance on investigating the case that entities suspected of committing violations against Law on Competition

The time limit for filing any complaint about competitions cases and the time limit for the issuance on investigation in case of any entity suspected of committing violations against the Law on Competition are 2 years from the day on which such entity is suspected of committing violations against the Law on Competition as prescribed in Clause 2 Article 65 of the Law on Competition.

Chapter II

VIOLATIONS AND PENALTIES FOR VIOLATIONS AGAINST LAW ON COMPETITION

Section 1: VIOLATIONS AGAINST REGULATIONS ON ANTI-COMPETITIVE AGREEMENTS

Article 8. Fixing price for goods and services in the direct or indirect ways

1.Each party to the agreement whose combined market share in the relevant markets is at least 30 % shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement on a fixed price for some or all goods

b) Agreement to reduce or raise the price at a specific rate;

c) Agreement on a uniform formula to calculate the price;

d) Agreement on the maintenance of a fixed rate of the price for relevant goods;

dd) Agreement on uniform trade-in allowances;

e) Agreement on credit limit offered to customers, except for agreement on credit limit offered to customers regarding syndicated loans under the regulations of the law on credit institutions;

d) Agreement not to reduce the price if other parties to the Agreement are not notified.

h) Agreement on a uniform price at the time the negotiation starts.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures such as:

a) Confiscation of the profit from the violation;

b) Removal of illegal clauses from the agreement.

Article 9. Agreement and division of consumption market, sources of goods and service supplies

1.Each party to the agreement whose combined market share in the relevant markets is at least 30 % shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement on quantity or location of business or customer allocation;

b) Agreement on which each party is obliged to only purchase from one or some contracted suppliers

2.In addition to the fine prescribed in Clause 1 this Article, each enterprise committing any violation may be liable to additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 10. Agreement for limiting or controlling the quantity, volume of producing and trading goods, services

1.Each party to the agreement whose combined market share in the relevant markets is at least 30 % shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement to reduce the output or sales of goods and services in the relevant markets in comparison with the previous period;

b) Agreement to fix the output and sales of goods and services to create the scarcity in the market.

2.In addition to the fine prescribed in the regulations in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 11. Agreement for limiting the technical and technological development and investment

1.Each party to the agreement whose combined market share in the relevant markets is at least 30 % shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement to buy inventions, useful remedies and industrial designs to destruct or to leave them idle;

b) Agreement to limit the capital used for extending the production, improving the goods and service quality or other development.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 12. Agreement for imposing conditions to sign the trading contracts for goods and services or forcing enterprises to accept responsibilities having no direct relation with the contract’s subjects

1.Each party to the Agreement whose combined market share in the relevant markets is at least 30% shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement to impose one of the following preconditions on other enterprises before signing the contracts for trade in goods and services: limiting the production and distribution of other goods; purchasing and providing other services not directly related to the commitment of the agents under the regulations of the law on agent; limiting the place to resell the goods except for the goods on the List of goods traded subjects to conditions, restricted goods under the regulations of the law; limiting the resale of the goods purchased by the customers except for the good on the List of goods traded subjects to conditions, restricted goods under the regulations of the law; limiting the form and quantity of supplied goods;

b) Agreement to constrain any other enterprise to buy the goods and services from the appointed suppliers or persons or perform some duties irrelevant to the contracts when doing business with any party to the Agreement.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 13. Agreement to prevent other enterprises from getting into market or developing business

1.Each party to the Agreement shall be fined up to 10% of their turnover of the financial year before the year in which one of these violations is committed:

a) Agreement not to do business with the enterprises which are not the parties to the Agreement;

a) Agreement to entice their customers not to purchase the goods and services provided by the enterprises which are not parties to the Agreement;

c) Agreement on sale prices for goods and services that prevent the enterprises which are not parties to the Agreement from getting into the relevant markets;

d) Agreement to entice their distributors and retailers to discriminate against the enterprise which are not parties to the Agreement when trading with them in order to make difficulties for the consumption of such enterprises;

dd) Agreement on sale prices for goods and services that prevents the enterprises which are not parties to the Agreement from extending their business.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 14. Agreement to eliminate enterprises which are not parties to Agreement from market

1.Each party to the Agreement shall be fined up to 10% of their turnover of the financial year before the year in which one of these violations is committed:

a) Agreement not to do business with the enterprises which are not parties to the Agreement and to entice their customers not to trade goods with and use the services provided by the enterprises which are not parties to the Agreement.

b) Agreement not to do business with the enterprises which are not parties to the Agreement and to set a sale prices for goods and services so that the enterprises which are not parties to the Agreement must withdraw from the relevant markets.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Article 15. Bid rigging

1.Each party to the Agreement shall be fined up to 10% of its turnover of the financial year before the year in which one of these following violations is committed:

a) Agreement that one or more than one party to the Agreement shall withdraw from the bidding or withdraw their submitted bid-envelopes so that another party can win the contract;

b) Agreement that one or more than one party to the Agreement shall make difficulties for the nonparties by refusing to supply materials and sign the subcontracts or other difficulties

c) Agreement that the parties to the Agreement shall submit cover bids containing uncompetitive prices or the cover bids containing conditions that will be unacceptable to the agency calling for the bids so that another party can win the contract;

d) Agreement on the times each party to the Agreement wins the contract in a determined period.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 8 of this Decree.

Section 2: VIOLATION AGAINST REGULATIONS ON ABUSE OF FIRMS DOMINANT MARKET POSITIONS

Article 16. Limit price under the total price to win the competitors

1.Any enterprise or each enterprise of any enterprise group having a monopoly, selling goods and providing services at a price below the fair value shall be fined up to 10% of the turnover of the financial year in which such violation is committed.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise breach the regulations on abuse of firms’ dominant market position might face these following additional penalties and remedial measures as follows:

a) The profit from the violation must be confiscated;

b) The illegal clauses from the relevant agreement;

c) The monopolist must be restructured.

Article 17. Imposing unreasonable sale prices for goods and services or minimum resale prices

1.Any enterprise or each enterprise of any enterprise group having a monopoly shall be fined up to 10% of the turnover of the financial year before the year in which one of these violations is committed:

a) Imposing the sale prices for goods and services, which causes damage to the customers;

b) Imposing the minimum resale price, which causes damage to the customers.

2.In addition to the fine prescribe in Clause 1 this Article, any enterprise committing any violation against the regulations on the abuse of firms’ dominant market positions may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 16 of this Decree.

Article 18. Limiting production, distribution of goods and services, market and development of technology

1.Any enterprise or each enterprise of any enterprise group having a monopoly to 10% of the turnover of the financial year before the year in which one of these following violations is committed:

a) Reduction in the quantity of goods and services provided in the relevant markets in comparison with the previous quantity of goods and services provided when there is no large fluctuation in the supply and demand relationship; financial crisis, natural disaster, hostilities; major technical problem or emergency;

b) Imposing the quantity of suppliedgoods and services to create the scarcity in the market;

c) Hoarding of goods in order to create market instability;

d) Supply of goods and services to one or some certain geography areas;

dd) Purchase of goods and services from one of some determined suppliers unless other suppliers cannot meet the requirements that are reasonable and suitable for the commercial practices requested by the buyers.

e) Purchase of inventions, useful remedies and industrial designs to destruct or leave them idle;

g) Coercing the researchers to stop or cancel their researches which are in progress.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation against the regulations on the abuse of firms’ dominant market positions may be liable to some additional penalties and remedial measures as follows:

a) The additional penalties and remedial measures prescribed in Clause 2 Article 16 of this Decree;

b) The unused inventions, useful remedies and industrial designs must be used or resold;

c) The obstacles preventing enterprises from getting into the market or developing their business must be removed;

c) The conditions for the development of technology that have been restricted by the enterprise must be restored;

Article 19. Composition on different trade conditions in business to create inequality in competition

1.Any enterprise or each enterprise in any enterprise group having a monopoly shall be fined up to 10% of their turnover of the financial year before the year in which it discriminates against other enterprises on the ground of conditions for sale, purchase, prices, payment deadlines, quantity of traded goods and services similar in value or nature of goods and services to advantage some enterprises in competition.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise abuse the firms dominant market positions may be liable to some additional penalties or remedial measures prescribed in Clause 2 Article 16 of this Decree.

Article 20. Imposing on conditions for other enterprises signing contract for trade in goods, services or forcing other enterprises to accept duties which are not related in a direct way to subject matter of contract

1.Any enterprise or each enterprise of any enterprise group having a monopoly shall be fined up to 10% of their turnover of the financial year before the year in which one of these following violations is committed:

a) Imposing the following preconditions on other enterprises before singing the contracts for trade in goods and services: limiting the production and distribution of other goods; purchasing and providing other services not directly related to the commitment of the agents under the regulations of the law on agent;limiting the place to resell the goods except for the goods on the List of goods traded subjects to conditions, restricted goods under the regulations of the law; limiting the resale of the goods purchased by the customers except for the good on the List of goods traded subjects to conditions, restricted goods under the regulations of the law; limiting the form and quantity of supplied goods.

b) Constraining any other enterprise to buy the goods and services from the appointed suppliers or persons or perform some duties irrelevant to the contracts when doing business with any party to the Agreement.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation against the regulations on abuse of firm s dominant market positions may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 16 of this Decree.

Article 21. Preventing new competitors from getting into market

1.Any enterprise or each enterprise of any enterprise group shall be fined up to 10% of their turnover of the financial year before the year in which one of these following violations is committed:

a) Requiring their customers not to do business with the new competitors;

b) Coercing the distributors and retailers not to distribute the goods of the new competitors;

c) Selling goods at the prices that prevent the new competitors from getting into the market, which is other than the cases prescribed in Clause 1 Article 16 of this Decree.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise committing any violation against the regulations on abuse of firm s dominant market position may be liable to some additional penalties and remedial measures prescribed in Clause 2 Article 16 this Article.

Article 22. Abuse of firms’ dominant market positions

1.Any monopolist shall be fined up to 10% of the turnover of the financial year before the year in which one of these violations is committed:

a) The violations prescribed in Clause 1 Article 16, Clause 1 Article 17, Clause 1 Article 18, Clause 1 Article 19, Clause 1 Article 20 and Clause 1 Article 21 of this Decree;

b) Imposing disadvantages on the customers;

c) Unilaterally changing or canceling the signed contracts without sending prior notification to customers and carrying any penalty;

d) Unilaterally changing or canceling the signed contracts according to one or some reasons not directly related to necessary conditions to continue fully executing the contracts without any penalty.

2.In addition to the fine prescribed in Clause 1 this Article, any enterprise abusing the firm s dominant market positions may be liable to some following additional penalties and remedial measures:

a) The profit from the violations must be confiscated;

b) The illegal clauses shall be removed from the relevant agreements;

c) The conditions for the development of technology that are prevented by the enterprise must be restored;

d) The disadvantages imposed on the customers must be removed;

dd) The contract clauses that are changed without legitimate reasons must be restored;

e) The contracts that are canceled without legitimate reasons must be restored.

Section 3: VIOLATIONS AGAINST REGULATIONS ON ECONOMIC CONCENTRATION

Article 23. Prohibited merger among enterprises

1.An acquirer enterprise shall be fined up to 10% of the turnover of the acquirer enterprise and acquiree enterprise of the financial year before the year in which such prohibited merger goes through in accordance with the Article 18 of the Law on Competition.

2.In addition to the fine prescribed in Clause 1 this Article, any acquirer enterprise may be separated.

Article 24. Prohibited consolidation of enterprises

1.A consolidated enterprise shall be fined up to 10% of its turnover of the financial year before the year in which such prohibited consolidation takes place as prescribed in Article 18 of the Law on Competition.

2.In addition to the fine prescribed in Clause 1 this Article, the consolidating enterprise may be liable to some following additional penalties and remedial measures:

a) The Certificate of Enterprise registration issued to the consolidated enterprise shall be revoked;

b) The consolidated enterprise must be separated.

Article 25. Prohibited acquisition of enterprises

1.The acquirer shall be fined up to 10% of its turnover of the financial year in which the acquirer purchase part of or whole property of other enterprises as prescribed in Article 18 of the Law on Competition.

2.In addition to the fine prescribed in Clause 1 this Article, the acquirer may be liable to resell the property that it purchases.

Article 26. Prohibited Joint-venture among enterprises

1.Each party to the joint venture shall be fined up to 10% of the financial year before the year in which such prohibited joint venture take places as prescribed in Article 18 of the Law on Competition.

2.In addition to the fine prescribed in Clause 1 this Article, the Certificates of Enterprise registration of the parties to the joint venture may be revoked.

Article 27. No notification on economic concentration

Any enterprise participating in the economic concentration without giving notification shall be fined up to 10% of the turnover of the financial year before such violation is committed as prescribed in Article 20 of the Law on Competition.

Section 4: VIOLATIONS AGAINST REGULATIONS ON UNHEALTHY COMPETITION

Article 28. Unhealthy competition related to industrial property

1.A fine of from VND 10 million to VND 40 million shall be imposed when:

a) The representative or agent of a brand owner illegally uses their trademark which is protected in a country that is a State party to the International Agreement prohibiting the representative or agent of such brand owner from using their trademark. Vietnam is also a State party to such International Agreement.

b) Any entity hijacks the domain name or uses a domain name identical or similar to the trademark or trade name of the other or the geographical indications that he is ineligible for in order to hijack, misuse the domain name or cause damage to the prestige of the corresponding trademark, trade name and geographical indication.

2.A fine of from VND 50 million to VND 100 million shall be imposed on any entity

a) Using directions confusable with the trade names, business slogans, business logos, packaging, geographical indications, trademarks and other factors under the regulations of the Government in order to mislead the perception of the customers of the goods and services for the purpose of competition;

b) Trading goods and services with confusable directions prescribed in Point a, this Clause.

3.A fine twice as many as the fine prescribed in Clause 2 this Article shall be imposed on any violation prescribed in Clause 2 this Article if:

a) Relevant goods and services are essential goods and services under the regulations of the law;

b) The violation is committed in more than one province.

4.In addition to the fines prescribed in Clause 1, Clause 2 and Clause 3 this Article, any enterprise committing violations might face the following additional penalties and remedial measures:

a) The exhibits and means to commit the violations and the profit from the violations shall be confiscated.

b) Public rectification must be filed.

Article 29. Trade secret infringement

1.A fine of from VND 10 million to VND 30 million shall be imposed on one of these violations:

a) Collecting the information of the trade secrets by violating the security measures if the legal owners of such trade secrets;

b) Revealing or using the information of the trade secrets without the permission of the owners of such trade secrets;

c) Violating the security contracts or deceiving the persons in charge of security to collect and reveal the information of the trade secrets;

d) Collecting the information of the trade secrets of any person when (s)he follow the procedures under the regulations of the law related to business, the procedures for the circulation of products or by violate the security measures of the competent authorities or using such information for business purposes or to request the licenses related to business or circulation of products.

2.In addition to the fines prescribed in Clause 1 this Article, the exhibits, means to commit the violations and profit from the violations of the enterprise committing violations may be confiscated.

Article 30. Coercion in business activities

1.Any enterprise that coerces the customers and business partners of other enterprises not to do business with such enterprises shall be fined from VND 50,000,000 to VND 100,000,000.

2.Any enterprise committing any violation prescribed in Clause 1 this Article shall be fined from VND 100,000,000 to VND 150,000,000 when it:

a) Coerces the biggest customers or business partners of the competitors;

b) Commits a violation in more than one province.

3.In addition to the fine prescribed in Clause 1 and Clause 2 this Article, the exhibits and means to commit the violation and the profit from the violation of the enterprise committing any violation shall be confiscated.

Article 31. Vilification of other enterprises

1.Any enterprise vilifies other enterprises by indirectly giving incorrect information which badly affects the reputation, financial conditions and business activities of other enterprises shall be fined from VND 10,000,000 to VND 15,000,000.

2.Any enterprise shall be fined from VND 50,000,000 to VND 100,000,000 when:

a) It vilifies other enterprises by directly giving incorrect information which badly affects the reputation, financial conditions and business activities of other enterprises;

b) It vilifies other enterprises by indirectly giving incorrect information which badly affects the reputation, financial conditions and business activities of other enterprises in case such violation is committed in more than one province.

3.The violation prescribed in Point a Clause 2 this Article shall be fined from VND 100,000,000 to VND 150,000,000 if it is committed in more than one province.

4.In addition to the fines prescribed in Clause 1, Clause 2 and Clause 3 this Article, the enterprise may be liable to some additional penalties and remedial measures prescribed in Clause 4 Article 28 of this Decree.

Article 32. Disruption to other enterprise’s business activities

1.Any enterprise disrupting the legal business activities of other enterprises shall be fined from VND 50,000,000 to 100,000,000.

2.Any enterprise committing the violation prescribed in Clause 1 this Article shall be fined from 100,000,000 to VND 150,000,000 if:

a) The enterprises that are disrupted can not continue their operation normally.

b) Such violation is committed in more than one province.

3.In addition to the fines prescribed in Clause 1 and Clause 2 this Article, the enterprise committing such violation may be liable to some additional penalties and remedial measures prescribed in Clause 4 Article 28 of this Decree.

Article 33. Unhealthy competition on advertising

1.Any enterprise shall be fined from VND 60,000,000 to VND 80,000,000 if it

a) Directly compares their goods and services with the goods and services of the same type of other enterprises;

b) Copies another advertisement to confuse the customers.

2.Any advertisement giving incorrect information or confusing the customers with: prices, quantity, uses, designs, package, production and expiry date, sources of goods, producers, processors, processing places; use methods, serving methods, warranty periods; incorrect or confusable information shall be fined from VND 80,000,000 to VND 140,000,000.

3.In addition to the fines prescribed in Clause 1 and Clause 2 this Article, the enterprise committing such violation may be liable to some additional penalties and remedial measures prescribed in Clause 4 Article 28 of this Decree.

Article 34. Unhealthy competition on promotion

1.Any enterprise shall be fined from VND 60,000,000 to 80,000,000 if it:

a) commits fraud during sales promotion;

b) does sales promotions that are fraudulent confuse the customers with the goods and services;

c) discriminates the customers in different sales promotion locations during a sales promotion;

d) offers trial goods to the customers but requires the customers to exchange the goods of the same type produced by other enterprises that they are using for its goods.

2.The enterprise committing any violation prescribed in Clause 1 this Article shall be fined from VND 80,000,000 to VND 100,000,000 in case such sales promotion is done in more than one province.

3.In addition to the fines prescribed in Clause 1 and Clause 2 this Article, any enterprise does any unhealthy competition promotion may be liable to some additional penalties and remedial measures prescribed in Clause 4 Article 28 of this Decree.

Article 35. Discrimination of Association

1.One of these violations shall be fined from VND 10,000,000 to VND 30,000,000:

a) Preventing other eligible enterprises from participating in or withdrawing from the Association due to discrimination, which is a competition disadvantage to the enterprises;

b) Unreasonably limiting the business activities or other activities related to the business purposes of the parties to the Association.

2.A fine of from VND 30,000,000 to 50,000,000 shall be imposed when:

a) An enterprise suffers the discrimination many times;

b) More than one enterprise suffers from the discrimination at the same time.

3.A fine of from VND 50,000,000 to VND 100,000,000 shall be imposed on any violation prescribed in Clause 2 this Article in case the parties are limited unreasonably to withdraw from the Association.

Article 36. Violations against multi-level marketing’s regulations

1.A fine of from VND 20,000,000 to VND 40,000,000 shall be imposed on any enterprise when it:

a) does the multi-level marketing without ensuring the conditions for multi-level marketing under the regulations of the law;

b) does not apply for adjustments to the Certificate of multi-level marketing in case if changes related to the application for the issuance of the Certificate of multi-level marketing.

c) does not apply for the re-issuance of the Certificate of multi-level marketing in case such Certificate is damaged;

d) provides false information in the application for the issuance of the Certificate of multi-level marketing;

dd) does not continuously do the multi-level marketing for 12 months from the issuance of the Certificate of multi-level marketing or continuously suspends its multi-level marketing activities for more than 12 months; 

e) signs contracts for multi-level marketing with individuals ineligible for multi-level marketing under the regulations of the law;

g) fails to fulfill the obligations related to the training given to the multi-level salespeople under the regulations of the law;

h) fails to fulfill the obligations related to the issuance, re-issuance or revocation of multi-level marketing membership cards under the regulations of the law;

i) fails to discharge the obligations to publicly announce and provide the persons intending to take part in the multi-level marketing pyramid with the information under the regulations of the law;

k) does not regularly supervise the multi-level salespeople to ensure that the multi-level salespeople adhere to the Rules on operation and Commission scheme of the enterprise;

l) does not deduct the personal income tax of the multi-level salespeople to pay to the State budget before paying the multi-level salespeople for the commissions, bonuses or other financial benefits;

m) does not administer the multi-level salespeople through the membership card system under the regulations of the law;

n) notifies the multi-level salespeople of incorrect and insufficient information about the goods that shall not be repurchased by the enterprise before they purchase such goods;

o) signs contracts with the multi-level salespeople which are not recorded in writing or contain insufficient basic contents under the regulations of the law.

2.One of these violations shall be fined from VND 40,000,000 to VND 60,000,000:

a) Failing to comply with the regulations on the multi-level marketing goods or trading in goods through the multi-level marketing which is not prescribed in the Certificate of multi-level marketing under the regulations of the law;

b) Failing to fulfill the obligations under the regulations of the law when the multi-level marketing is suspended or the multi-level marketing continues after the suspension;

c) Failing to fulfill the obligation to send notifications to the competent authorities when stopping doing multi-level marketing;

d) Doing multi-level marketing in provinces where there are no head offices of the enterprises when the provincial Departments of Industry and Trade of such provinces have not confirm the receipt of the dossiers on the operation;

dd) Failing to fulfill the obligation to notify the provincial Departments of Industry and Trade of the places where the conferences, workshops and training take place under the regulations of the law;

e) Failing to fulfill the obligations to repurchase the goods of the multi-level salespeople under the regulations of the law;

g) Paying the multi-level salespeople the totally annual commission, bonus and other financial benefits which exceed the 40% of the multi-level marketing turnover of such year of the multi-level marketing companies; 

h) Failing to fulfill the obligations under the regulations of the law when any contract for multi-level marketing is ended;

i) Withdrawing the deposit before the Authorities in charge of issuing the Certificate of multi-level marketing gives written approvals unless the enterprises withdraw the deposit paid to the commercial banks to apply for the multi-level marketing without the issuance of the Certificates of multi-level marketing;

k) Not changing the records on deposit or changing the records on deposit without notifying the authorities in charge of issuing the Certificates of multi-level marketing in case of changes related to the contents of the records on deposit;

l) Failing to fulfill the obligation to send periodic reports to the competent authorities under the regulations of the law.

3.Any multi-level marketing company shall be fined from VND 60,000,000 to VND 100,000,000 if it:

d) does multi-level marketing without applying for the multi-level marketing to the competent authorities;

b) requests the persons wishing to be salespeople to pay the deposit or particular amounts in any shape or form to joint the scheme;

c) requests the persons wishing to be salespeople to buy a quantity of goods in any shape or form to joint the pyramid;

d) requests the multi-level marketing salespeople to pay additional amounts in any shape or form to maintain, develop or extend their schemes;

dd) unreasonably limits the right to develop the pyramid  of the multi-level marketing salespeople in any shape or form;

e) pays the salespeople the commissions, bonuses and other financial benefits for enticing other people to join the multi-level marketing;

g) unreasonably refuses to pay the salespeople the commissions, bonuses and other financial benefits that they are eligible for;

h) requests the salespeople to recruit a particular number of salespeople or extend the contracts for multi-level marketing to be eligible for the commissions, bonuses and other financial benefits.

i) requests the participants in the conferences, workshops or training related to the contents in the basic training program to pay the fees in any shape or form, except for the fees for the training material;

k) coerces the salespeople to attend the conferences, workshops or training in the contents irrelevant to the basic training program of the company;

l) requests the participants in the conferences, workshops or training in the contents irrelevant to the basic training program to pay the fees higher than the reasonable costs to hold such events;

m) collects the fees for the issuance of and adjustment to the membership cards of the salespeople in any shape or form;

n) does not make commitments to receive the goods that the salespeople return and repay the amounts that the salespeople pay the company under the regulations of the law;

o) prevents the salespeople from returning the goods under the regulations of the law;

p) provides inaccurate or confusable information about the benefits from the participation in the pyramid, natures, uses of the goods and operation of the multi-level marketing company to entice other people to join the multi-level marketing;

q) provides more than one position, contracts, participant ID numbers, etc. for the same salesperson;

r) runs pyramid scheme;

s) sells, buys or transfers the multi-level marketing salespeople system to other companies except for the repurchase, consolidation or merger among enterprises;

t) requests or incites the salespeople to commit violations under the regulations of the law.

4.The fine for any violation prescribed in Clause 3 this Article that is committed in more than one province shall be as twice as the fine prescribed in Clause 3 this Article.

5.In addition to the fines prescribed in Clause 1, Clause 2, Clause 3 and Clause 4 this Article, any enterprise committing any violation may be liable to some additional penalties and remedial measures as follows:

a) Revocation of Certificate of multi-level marketing regarding the violations prescribed in Points d and dd this Article and violations prescribed in Clause 3 this Article other than doing the multi-level marketing without applying for the multi-level marketing to the competent authorities;

b) Confiscation of exhibits and means to commit the violations and the profit from the violations;

c) Public rectification.

Section 5: OTHER VIOLATIONS AGAINST LAW ON COMPETITION

Article 37. Violations against regulations on provision of information and documents

1.Warnings or fines of from VND 2 million to VND 5 million shall be given to one of these following violations:

a) Provide insufficient information and documents at the request of the competent authorities;    

b) Provide information and documents late at the request of the competent authorities;

c) Provide false or wrong information and documents;

d) Coerce others to provide false information and documents;

dd) Hide or destruct the information and documents related to the competitions cases.

2.Any violation prescribed in Clause 1 this Article can be fined from VND 5 million to VND 10 million in case the provided information and documents are especially important to deal with the competitions cases.

3.The wrongdoers shall be not only fined as prescribed in Clause 1 and Clause 2 but also requested to provide sufficient information and documents.

Article 38. Violations against other regulations related to investigation and handling of competitions cases

1.Warnings or fines of fromVND 2 million to VND 5 million shall be given to one of these following violations:

a) Reveal confidential investigation information and documents

b) Cause disruption at the hearings

2.Any violation prescribed in Clause 1 this Article can be fined from VND 5 million to VND 10 million in case the revealed information and documents are especially important to deal with the competitions cases.

3.The wrongdoers shall be fined as prescribed in Clause 1 and Clause 2 this Article and their exhibits and means to commit the violations shall be confiscated.

Article 39. Anti-competitive agreements and economic concentration before Decision on exemption issued by competent authorities

1.Each party to the anti-competitive Agreement subject to the exemption in accordance with the regulations in Article 10 of the Law on Competition before the Minister of Industry and Trade issues the Decision on exemption shall be fined from VND 100,000,000 to VND 200,000,000.

2.Any enterprise engaged in economic concentration subject to the exemption in accordance with the regulations in Article 19 of the Law on Competition before the Prime Minister or the Minister of Industry and Trade issues the Decision on exemption shall be fined from VND 100,000,000 to VND 200,000,000.

Chapter III

ENTITLEMENT TO AND PROCEDURES FOR  VIOLATION HANDLING AGAINST LAW ON COMPETITION

Section 1: ENTITLEMENT TO HANDLING OF VIOLATION AGAINST LAW ON COMPETITION

Article 40. Authorities of regulatory competition authorities

1.Regarding the violations against the regulations on unhealthy competition and other violation against the Law on Competition, the heads of the regulatory authorities of competition shall:

a) give warnings;

b) impose fines of up to VND 100 million in case of individuals committing the violations prescribed in Section 4 and Section 5 Chapter II of this Decree and of up to VND 200 million in case of organizations.

c) confiscate the exhibits and means to commit the violations against the Law on Competition and the profits from the violations;

dd) force the wrongdoers to file public rectifications, 

2.The Heads of the regulatory authorities of competition can apply, change or cancel the administrative preventive measures when the dossiers on the competitions cases have not handed over to the Competition Council.

Article 41. Authorities of Competition Council and Council of Competitions Cases

Regarding violations against the regulations on the control of the anti-competitive practices, the Competition Council and Council of competitions cases shall:

1.Give warnings.

2.Impose fines.

3.Confiscate exhibitsand means to commit the violations.

4.Impose the penalties prescribed in Points c, d, dd, e, g, h, i and k Clause 3 Article 3 of this Decree.

5.Request the competent authorities to revoke the Certificates of Enterprise registration or suspend the practice certificates and licenses.

6.Request the competent authorities to impose the penalties prescribed in Point a and Point b Clause 3 of this Decree.

Section 2: PROCEDURES FOR  VIOLATION HANDLING AGAINST LAW ON COMPETITION

Article 42. Procedures for violation handling against Law on Competition

The procedures for violation handling against the Law on Competition include:

1.Procedures for violation handling against the regulations on the control of the anti-competitive practices and unhealthy competition;

2.Procedures for handling of other violations against the regulations of the Law on Competition.

Article 43. Procedures for violation handling against regulations on control of anti-competitive practices and unhealthy competition

The handling of the violations against the regulations on the control of anti-competitive practices and unhealthy competition must follow the procedures for competition proceedings prescribed in Chapter V of the Law on Competition and regulations in Chapter III of the Decree No.116/2005/ND-CPdetailing the implementation of some articles of the Law on Competition.

Article 44. Filing records of other violations against regulations of Law on Competition

1.The competent persons must immediately suspend the violation and file a record of such violation on detecting any violation against Law on Competition prescribed un Section 3 Chapter II of this Decree.

2.The record must present:

a) Date and location of the record;

b) Full name and title of the person making the report;

c) Full name, address and occupation of the entity committing violation;

d) Date and location of the violation;

dd) Description of the violation;

e) Administrative preventive measures (if any);

g) Conditions of impounded exhibits and means (if any);

h) Statement of the individual committing the violation or the representative of the organization committing the violation;

i) Names, addresses and statements of the witnesses, individuals or representatives of the organizations suffering the damage (if any).

3.There are at least 2 records of the violation which must be signed by the person making the record and the individual or the representative of the organization committing the violation; and the witnesses and individuals or representatives of the organizations suffering the damage (if any). If a record includes several pages, the abovementioned persons must sign on each page of the record. If the individual or the representative of the organization committing the violation, the witnesses and individuals or representatives of the organizations suffering the damage refuse to sign the record, the person making the record must write the reasons in the record.

4.The wrongdoer shall be given one record. In case of the violation outside the competence of the person making the report must send the report to the competent persons for consideration

Article 45. Deadline for Decision issuance on imposition of violation penalties against Law on Competition

1.Any Decision on imposition of penalties for other violations against the Law on Competition shall be issued within 10 days from the day on which the Record on the violations against the Law on Competition is filed; or 30 days in case of complex facts.

2.The competent persons must send a written request for extension to their head if it is necessary to verify or collect the evidences, such extension must not exceed 30 days.

3.After the deadline prescribed in Clause 1 and Clause 2 this Article, if the competent persons in charge of imposing penalties have not issued the Decision on imposition of penalties, the remedial measures prescribed in Clause 3 Article 37 and Clause 3 Article 38 of this Decree shall apply.

If the Decision on imposition of penalties has not issued before such deadline, the competent persons in charge shall be penalized under the regulations of the law.

Article 46. Decision issuance on imposition of violation penalties against Law on Competition

1.A Decision on imposition of penalties for other violations against the Law on Competition includes:

a) Date of the Decision;

b) Full name and title of the person making the Decision;

c) Full name, address and occupation of the wrongdoer;

d) The violations; facts related to the handling of the violations; provisions of the legislative documents that are applied;

dd) Administrative penalties, additional penalties (if any), remedial measures (if any);

e) Deadline, place of implementation of the Decision and the sign of the person making the Decision;

g) Rights to complain about the Decision on imposition of penalties for other violations against the Law on Competition under the regulations of the law.

2.The wrongdoer must be written in the Decision on imposition of penalties for other violations against the Law on Competition. The wrongdoer shall be compelled to implement such Decision in case of non-compliance.

3.The Decision on imposition of penalties for other violations against the Law on Competition shall take effect as of the signing date unless the Decision prescribes another effective date.

4.The competent persons in charge of issuing the Decision must send the Decision to the penalized entity, the authority in charge of collecting the fines and other relevant authorities (if any) within 03 working days from the issuance of the Decision on imposition of penalties for other violations against the Law on Competition.

The Decision on imposition of penalties for violations against the Law on Competition shall be sent directly or via registered mail and announced to the penalized entity.

If the Decision is sent directly but the wrongdoer intentionally refuses to receive it, the competent persons shall make a record on such refusal which is confirmed by the local authority. In this case, it is supposed that the Decision is sent.

If the Decision is sent via registered mail and after 10 days from the third return of the mail due to the intentional refusal of the wrongdoer, it shall be supposed that the Decision is sent when the Decision is announced at the penalized individual’s place of residence or penalized organization’s premises or there are grounds for presuming that the wrongdoer refuse to receive the Decision.

Section 3: PROCEDURES FOR IMPLEMENTATION OF DECISIONS ON HANDLING OF COMPETITIONS CASES AND VIOLATIONS AGAINST LAW ON COMPETITION

Article 47. Implementation of Decision on imposition of violation penalties against Law on Competition

1.Any enterprise liable to the penalties must implement the Decision on imposition of penalties for competitions cases issued by the Council of competitions cases and regulatory authorities of competition within 30 days from the effective date of the Decision on imposition of penalties for competitions cases.

2.Any organization or individual liable to the penalties for other violations against the Law on Competition prescribed in Section 5 Chapter II of this Decree must implement the Decision on imposition of penalties for other violation against the Law on Competition within 10 days from the receipt of such Decision.

3.In case of non-compliance within the period prescribed in Clause 1 and Clause 2 this Article, the organization or individual shall be compelled to implement such Decision under the regulations in Article 49 and Article 50 of this Decree.

Article 48. Place to pay fines

Any entity liable to the fine due to the Decision on imposition of penalties for competitions cases and Decision on imposition of penalties for other violations against the Law on Competition must pay the fine at the State Treasury written in the on handling of competitions cases and Decision on imposition of penalties for other violations against the Law on Competition.

Article 49. Enforcement for the Decision implement on competition case’s imposition

1.If any entity liable to the penalties does not implement the Decision or bring the case to Court in accordance with the regulations in Section 7 Chapter V of the Law on Competition after the period prescribed in Clause 1 Article 47 of this Decree, the enforcer in charge of the Decision on imposition of penalties for competitions cases can make a written request that the competent authorities (prescribed in Clause 2 and Clause 3 this Article) implement such Decision within their scope of functions, tasks, powers.

2.The competent authorities shall revoke the Certificate of Enterprise registration or suspend the practice certificate and license that such competent authority issue to any enterprise committing violations against the Law on Competition at the request of the Council of competitions cases written in the Decision on imposition of penalties for competitions cases.

3.Other competent authorities shall restructure the enterprises abusing firms dominant market positions, separate the merged or acquired enterprises or resell the contributed capital at the request of the Council of competitions cases written in the Decision on imposition of penalties for competitions cases.

4.Civil execution authorities of provinces where the wrongdoers establish their premises, live or place their property shall implement the provisions of the Decision related to the property of the Decision on imposition of penalties for competitions cases at the request of the authorities in charge of implementation of such Decision. 

Article 50. Enforcement of Decision on imposition of violation penalties against Law on Competition

In case of non-compliance with the Decision on other violations against the Law on Competition within the period prescribed in Clause 2 Article 47 of this Decree, the entities liable to the penalties shall be compelled to implement such Decision under the regulations of the law

Chapter IV

IMPLEMENTATION ORGANIZATION

Article 51. Implementation effect

1.This Decree takes effect from September 15, 2014 and replaces the Decree No.120/2005/ND-CPof the Government on the penalties for violations against the Law on Competition dated September 30, 2005.

2.Any organization or individual committing any violation against the Law on Competition before the effective date of this Decree shall be applied beneficial regulations on penalties.

Article 52. Implementation responsibilities

1.The regulatory authorities of competition can request the Ministry of Finance to cooperate in determining the profits from the violations under the regulations of this Decree if necessary.

2.The Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the President of the People’s Committees of centrally-affiliated cities and provinces shall implement this Decree./.

For the Government

The Prime Minister

Nguyen Tan Dung