OECD kpcdb

1. Competition Law

 

The Trade Competition Act, B. E. 2560 (2017) (“the Act”), which took effect in October, 2017, is the main legal instrument on competition policy in Thailand. It repealed the Trade Competition Act B.E. 2542 (1999).

 

The purpose of the Act is to improve measures in regulating competition to become more efficient under an authority that is flexible and independent, consistent with the development of patterns and behaviours in business operations.

 

The Act regulates abuse of dominance, anti-competitive agreements, anti-competitive mergers, and unfair trade practices.

 

In addition to major antitrust prohibitions, the Act has a special provision, namely Sections 57, which prohibit, for instance, the unfair use of superior bargaining power by a non-market dominant firm under the name of “unfair trade practice.” 

Thailand follows the civil law tradition.

 

General exclusion: Central, regional and local administrations are exempt from the application of the Act. State-owned enterprises, public organisations, or other government agencies, provided that their conducts are undertaken according to the laws or the Cabinet’s resolutions which are necessary to maintain national security, public interest, general interest or the provision of public utilities are also exempt. In addition, farmer groups, co operatives or co operative groups prescribed by law and whose business objectives are for the benefit of the farming industry are exempted. Businesses prescribed by the Ministerial Regulations may also be fully or partially exempt from the application of the Act.

 

Extra-territorial application: The Act is not applicable to firms located outside Thailand whose behaviour directly affect competition and consumers in domestic markets. The Act’s merger control provisions are not applicable to foreign mergers.

 

2. Trade Competition Commission

 

Since 1st October 2017, the Trade Competition Commission (the “TCC” or “Commission”) is the authority that enforces competition law in Thailand. It is supported by the Office of Trade Competition Commission (“OTCC” or “Office”). The TCC has succeeded the OTCC that was integrated in the Ministry of Internal Trade and was previously responsible for the enforcement of the competition law in force until then. 

 

Organisational structure of the Commission: The Commission is a separate entity independent of the government, with its own budget. 

 

The Office has around 100 employees including officials and supporting staff.

 

Section 7 of the Act sets out that the Commission consists of a Chairperson, Deputy-Chairperson and five other Commissioners, appointed by the Prime Minister from persons chosen in a section process and approved by the Cabinet. Sections 8 and 10 set out a number of qualifications that the Commissioners must hold, and these include provisions that Commissioners must demonstrate experience and expertise of not less than 10 years in law, economics, finance, accounting other relevant fields, and not hold any position in business entities or as a civil servant with a title or a regular salary. 

 

According to Section 13 of the Act the Commissioners shall hold office for four-year terms, with a maximum of two terms. Commissioners are full-time.

 

Any of the Commissioners may only be dismissed from office under the conditions set out in Section 14, which includes a Cabinet resolution to remove a Commissioner due to failure to fulfil their duty, atrocious behaviour, or without capacity in performing duties. 

 

Decisions are taken by majority vote, with a casting vote of the Chairperson in case of equal number of votes. There is a quorum of half the total number of Commissioners.

 

The Commission is supported by the Office. It is the Commission which issues rules and regulations on the operation and organisation of the OTCC. The OTCC has a Secretary-General who shall be responsible for the operation of the Office reporting directly to the Chairperson and shall be a supervisor of all officials and employees of the OTCC. The Secretary-General is appointed and removed by the Chairperson of the TCC and shall hold an office term of four years. To be appointed Secretary-General a person must demonstrate under Section 32 of the Act certain qualifications, including knowledge and expertise in certain fields, including law and economics. 

 

The Commission may appoint a sub-committee to consider and make recommendations on any matter or perform any act as entrusted and prepare a report on such act to the Commission pursuant to Sections 20 and 21 of the Act.

 

Other regulators with competition powers: There are other sector regulators that have competition powers. The National Broadcasting and Telecommunications Commission (NBTC) regulates competition issues relating to broadcasting and telecommunications sectors. The Energy Regulatory Commission regulates competition issues relating to energy and gas industry operation. These two regulators have their own competition section under their laws. 

 

Competition advocacy: According to Section 17 of the Act, the TCC proposes opinions and recommendations to the Minister and the Cabinet with regard to government policies on competition, as well as gives recommendations to government agencies regarding rules, regulations, or orders which are obstacles to competition.

 

International co operation: There is an international co operation agreement between ASEAN.

 

3. Investigation

 

Powers of investigation: Section 63 (1) of the Act allows officers of the OTCC to issue a written summons requiring any person to give statements, facts or written explanations or provide accounts, registrations, documents or any evidence for examination or consideration.

 

Section 63 (2) of the Act also grants officers of the OTCC the power to enter a place of business, etc. of the business operator or any person or other places reasonably suspected to accommodate the imminent commission of an offence under the Act without a warrant, for the purpose of examining and ensuring the compliance with the Act or searching for and attaching evidence or property capable of forfeiture under the Act. 

 

Failure to comply with an investigation: Sections 73, 74, 75 stipulates that a person who fails to comply with the written summons, obstructs the performance of duties of officials, or other orders shall be liable to imprisonment or a fine, or to both. 

 

• Section 73, failure to comply with the written summons: imprisonment not exceeding three months or a fine not exceeding five thousand Baht or both
• Section 74, obstruction of the performance of duties of an officer: imprisonment not exceeding one year or a fine not exceeding twenty thousand Baht or both
• Section 75, failure to render assistance to the Commission: imprisonment not exceeding one month or a fine not exceeding two thousand Baht or both.

 

 

Procedural fairness: The OTCC provides the party/parties under investigation for an antitrust infringement with opportunities to consult with the OTCC with regard to significant legal, factual or procedural issues during the course of the investigation. The parties also have the right to be heard and present evidence before the imposition of any sanctions or remedies for having committed an antitrust infringement.

 

Procedural guidelines and rules: No guidelines have been published by the OTCC nor the Commission.

 

4. Remedies and sanctions

 

Section 60 gives the Commission the power to issue a written order instructing the business operator to suspend, cease, correct or change such conduct in cases where the Commission considers that a business operator committed an antitrust infringement, namely the violation of Section 50 (abuse of dominance), Section 51 (merger), or Section 54 (anti-competitive agreements). The person receiving the order under section 60 must comply with such order unless the administrative court gives a decision or issues an order suspending the execution thereof or revoking the order of the Commission. 

 

According to Section 83, any person violating Section 60 shall be subject to an administrative fine of not more than THB 6 million, and a further fine of THB 300,000 per day. 

 

Criminal sanctions: Under Section 72, any person who violates Section 50 (abuse of dominance) or Section 54 (anti-competitive agreements) shall be liable to 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.

 

5. Appeal

 

According to Section 60 and Section 52 the person who disagrees with the order of the commission has the right to appeal. 

 

6. Private enforcement 

 

The Act provides under Article 69 for stand-alone damage actions by any person who has suffered damages from a violation of Section 50 (abuse of dominance), Section 51 (merger), and Section 54 (anti-competitive agreements). 

 

The Consumer Protection Commission has the power to initiate the damages claims on behalf of consumers. 

 

Under Article 70, the claim for damages must be brought within one year from the date the damaged person knows or should have known the cause of such damages, otherwise the right to claim for damages in court will lapse