Vietnam: 06 elements for assessment of anti-competitive effects applied from May 15, 2020

According to Vietnam’s regulations, the National Competition Commission shall conduct assessment of anti-competitive effects or likelihood of causing significant anti-competitive effects of anti-competitive agreements in the cases specified in clause 3 and 4 of Article 12 in the Competition Law.

According to Decree No. 35/2020/ND-CP of Vietnam’s Government, the assessment of anti-competitive effects or likelihood of causing significant anti-competitive effects of anti-competitive agreements shall be based on one or several elements, including:

- Developments and changes of market share points of enterprises engaging in agreements that are evaluated in comparison with those of their competitors not engaging in agreements;

- Barriers to market entry or expansion that are evaluated for the purpose of determination of anti-competitive effects or likelihood of causing anti-competitive effects of anti-competitive agreements based on elements affecting an enterprise's decision on entry into or expansion of its market as provided in Article 8 herein;

- Restrictions on technological research, development and innovation, or technological competencies, which are assessed for the purpose of determination of anti-competitive effects or likelihood of causing anti-competitive effects with respect to objectives of technological research, development and innovation or improvement of technological competencies in relevant sectors and industries;

- Decreases in accessibility to or keep hold of essential infrastructure that are evaluated based on the significance of infrastructure for production and business activities, costs and time that their competitors not engaged in anti-competitive agreements can spend on accessing and holding such infrastructure or other equivalents;

- Increases in costs and time that consumers can spend on purchasing products or services of enterprises engaged in anti-competitive agreements, or switching to other relevant products or services. This element shall be determined by comparing required costs and time that consumers can spend on purchasing products and services of enterprises engaged in anti-competitive agreements or switching to products and services of their competitors before and after these agreements take effect;

- Impediments to market competition through control of sector or industry-specific factors related to enterprises engaged in anti-competitive agreements. This element shall be defined by taking into consideration the degree of influence that these specific factors have over market competitions of these enterprises.

Note: Anti-competitive agreements shall be regarded as not causing, or unlikely to cause, anti-competitive effects in a considerable manner if the following circumstances occur:

- Anti-competitive agreements between enterprises in the same relevant market shall be as mentioned above if the joint market share of enterprises engaged in these agreements is less than 5%;   

- Anti-competitive agreements between enterprises performing trades and participating in different stages in the same chain of production, distribution and supply with respect to a certain product or service shall be as mentioned above if the market share of each enterprises engaged in these agreements is less than 15%.

View more details at Decree No. 35/2020/ND-CP of Vietnam’s Government effective from May 15, 2020.

Le Hai

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