OECD kpcdb

1. Scope

 

There is a distinction between cartels amongst competitors in the same market leading to price-fixing, market allocation, output control or bid rigging under Section 54 and other non-hard-core cartels under Sections 55, 56 and 58.

 

In cases where it is commercially necessary to undertake the prohibited conducts, the business operator concerned should submit an application for permission to the OTCC.

 

2. Assessment

 

The law does not set out any assessment criteria. There are currently no issued guidelines.

 

Any violation of Section 54 is per se illegal, and the Commission does not consider any efficiency that an allegedly exclusionary conduct may generate.

 

Section 56 provides that Section 55 agreements of the following type : R&D agreements and licensing-type arrangements, in so long as they do not go beyond what is necessary to achieve the benefits are excluded from the prohibition. Further, agreement types prescribed in a ministerial regulation are also excluded. 

 

3. Remedies and sanctions

 

Hard-core cartels under Section 54 are subject to criminal penalties, whilst other anti-competitive agreements under Sections 55, 56 and 58 are subject to administrative fines.

 

Under Section 72, any violation of Section 54 (anti-competitive agreements) shall be punishable by imprisonment not exceeding two years or a fine of not more than ten percent of turnover in the year of the offence or both. In the case of an offence committed during the first year of business operation, the person shall be subject to up to two years of imprisonment and a fine not exceeding THB 1 million or both.

 

Under Section 82 any person violating Sections 55 or 58 shall be subjective to an administrative fine of not more than 10 percent of turnover in the year of the offence. In the case of an offence committed during the first year of business operation, the person shall be subject to a fine of not more than THB 1 million.

 

Section 60 provides for the Commission to issue cease and desist type orders where it has sufficient evidence to believe that a business operator has violated or will violate these sections. Any person violating Section 60 shall be subject to an administrative fine of not more than 6 million Baht and a further fine of not more than THB 300,000 per day during the time of the violation. 

 

The OTCC, under the previous legal regime, the OTCC had handled 25 cases on anti-competitive agreements, but remedies or sanctions have not been imposed on a violation of Section 54 over the last five years.

 

4. Leniency

 

There is not a leniency programme.

 

 

* This information is based on Competition Law in Asia-Pacific: A Guide to Selected Jurisdictions (2018).