OECD kpcdb

1. Scope and Assessment

 

The Competition Law identifies eight specific types of anti-competitive agreements that are prohibited. Articles 8 and 9 of the VCL provide per se prohibition for the following types of agreements: agreements which prevent, impede or do not allow other enterprises to participate in the market or to develop business; agreements which exclude from the market other enterprises which are not parties to the agreement; collusion in order for one or more parties to win a tender for supply of goods and services.

 

However, other anticompetitive agreements as follows are not prohibited per se: price fixing; market allocation; restricting or controlling the quantity or volume of production and supply, restricting technical or technological developments or investment, imposing to other enterprises terms of contract or obligations not relevant to the subject matter of the contract. These agreements are prohibited when the parties have a combined market share of 30% or more of the relevant market.

 

The list of types of agreements covered by the Article 8 is exhaustive. There is no formal distinction between horizontal and vertical agreements under the VCL. Vertical agreements may be addressed under the abuse of dominance provisions, e.g., minimum resale price maintenance causing damage to customers (Article 13(2) of the VCA - see section below on Abuse of Dominance for more detail on its application). 

 

Exemptions: According to article 10 of the VCL, exemption may be granted for a limited period of time by the Minister of Industry and Trade. The agreement must satisfy one of the conditions as follows: rationalises an organisational structure or a business scale or increases business efficiency; promotes technical or technological progress or improves the quality of goods and services; promotes uniform applicability of quality standards and technical tings of product types; unifies conditions on trading, delivery of goods and payment (but does not relate to price or any pricing factors); increases the competitiveness of medium and small sized enterprises; increases the competitiveness of Vietnamese enterprises in the international market. 

 

In practice, VCA hasn’t received any exemption applications regarding anticompetitive agreements over the last 5 years. 

 

2. Remedies and sanctions 

Under Article 117, administrative sanctions such as a warning or a fine may be imposed. Measures for remedying consequences may also be applied, including removal of illegal terms and conditions from a contract or business transaction.

According to Section 1 of Chapter II of the Decree No. 71/2014 / ND -CP agreements in restraint of competition are penalised with a fine of up to 10 per cent of total revenues and the potential confiscation of the profits of the impugned conduct.

 

3. Leniency

 

Currently, Vietnam does not have a leniency programme. According to the Decree No. 116-2005-ND-CP, however, a voluntary declaration of a breach prior to the detection by the VCA constitutes an extenuating circumstance when dealing with a breach of the VCL.