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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No: 71/2014/ND-CP
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Hanoi, July 21, 2014
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DECREE
REGULATIONS OF LAW ON COMPETITION ON
IMPOSITION OF PENALTIES FOR VIOLATIONS AGAINST 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
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Article 1. Scope of regulation
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. Regulated objects
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.
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Article 3. Penalties for violations 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;
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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
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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;
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5. In
case of any mitigating circumstance or aggravating circumstance prescribed in
Article 85 of the Decree No. 116/2005/ND-CP detailing the implementation of
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. Rates of fines 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 implementation of
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. Compensation for damage 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.
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Article 7. Time limit for filing complaints about
competitions cases, time limit for issuance of decision on investigation in
case of 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. Price fixing
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;
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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. Exclusive dealing and market division
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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. Limiting production and sales
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 to limit technology and investment
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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 to impose conditions for signing
contracts for trade in goods and services on enterprises or constrain other
enterprises to accept duties not directly irrelevant to objects of contracts
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
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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.
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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
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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.
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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 supplied goods 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.
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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:
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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
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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;
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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;
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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 of 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
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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.
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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.
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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;
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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 business activities of
other enterprises
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 advertising
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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 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;
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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.
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Article 36. Violations against regulations on multi-level
marketing
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;
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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;
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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:
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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;
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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.
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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;
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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 from VND 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.
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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 HANDLING OF VIOLATIONS AGAINST LAW ON COMPETITION
Section 1: ENTITLEMENT TO HANDLING OF VIOLATION AGAINST LAW
ON COMPETITION
Article 40. Entitlement of regulatory authorities of
competition
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.
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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. Entitlement of Competition Council and Council
in charge 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 exhibits and 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.
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Section 2: PROCEDURES FOR HANDLING OF VIOLATIONS AGAINST
LAW ON COMPETITION
Article 42. Procedures for handling of violations against
law on competition
The
procedures for handling of violations against the law on competition include:
1.
Procedures for handling of violations 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 handling of violations 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-CP detailing 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.
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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).
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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 issuance of Decisions on
imposition of penalties for other violations 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. Decisions on imposition of penalties for other
violations 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;
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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.
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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
penalties for competitions cases and other violations 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 of implementation of Decision on
imposition of penalties for competitions cases
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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
penalties for other violations 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
Article 51. Effect
1. This
Decree takes effect from September 15, 2014 and replaces the Decree No.
120/2005/ND-CP of the Government on the penalties for violations against the
law on competition dated September 30, 2005.
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Article 52. Implementation responsibility
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./.
ON BEHALF OF THE GOVERNMENT
THE MINISTRY
Nguyen Tan Dung