Decree No. 35/2020/NĐ-CP detailing certain provisions of the Competition Law

DECREE

Detailed Provisions on Certain Articles of the Competition Law

Pursuant to the Government Organization Law dated June 19, 2015;

Pursuant to the Competition Law dated June 12, 2018;

At the proposal of the Minister of Industry and Trade;

The Government promulgates this Decree providing detailed provisions on certain articles of the Competition Law.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree provides detailed provisions on Articles 9, 10, 13, 26, 31, 32, 33, 36, 56, and 82 of the Competition Law.

Article 2. Interpretation of Terms

1. Controlling or dominating a business or an industry or profession of another business means one of the following situations occurs:

a) A business acquires ownership of more than 50% of the charter capital or more than 50% of the voting shares of the acquired business;

b) A business acquires ownership or usage rights of more than 50% of the assets of the acquired business in the entire business or in a specific industry or profession;

c) The acquiring business has one of the following rights:

- Directly or indirectly deciding on the appointment, dismissal, or removal of the majority or all members of the board of directors, chairman of the board of members, director, or general manager of the acquired business;

- Deciding to amend or supplement the charter of the acquired business; Deciding on important issues in the business operations of the acquired business including the choice of organizational form for business activities; selection of industries, professions, geographical areas, forms of business; adjustment of scale and industries or professions; selection of methods, means of raising, allocating, and using business capital of that business.

2. A group of associated businesses regarding organization and finance (hereinafter referred to collectively as a group of associated businesses) is a group of businesses under the control or domination of one or more businesses within the group or having a common management body.

3. Market share level is the numerical value of the market share of a business on the relevant market determined according to Article 10 of the Competition Law, for example, if a business has a market share of 30 percent (30%) on the relevant market, then the market share level of that business is 30.

4. The total squared market share of businesses on the relevant market is calculated according to the following formula:

Total squared market share = S₁² +S₂² +... S_(n)²

In which: S₁ ...,S_(n) are the corresponding market share levels of the first business to the nth business.

For example: On the same relevant market, there are three businesses with corresponding market shares of 30%, 30%, and 40%. The total squared market share of these three businesses on the relevant market is determined as follows: 30² +30² + 40²= 3400.

5. Entry barriers or expansion barriers are factors that hinder the entry or expansion of a business into the market.

Chapter II

DETERMINATION OF THE RELEVANT MARKET AND MARKET SHARE

Section 1

DETERMINATION OF THE RELEVANT MARKET

Article 3. Relevant Market

1. The relevant market is determined based on the related product market and the related geographic market.

2. During the process of determining the relevant market, the National Competition Commission has the right to seek opinions from sectoral management agencies, enterprises, organizations, and individuals with expertise.

Article 4. Determination of the Related Product Market

1. The related product market is the market of goods and services that can substitute each other in terms of characteristics, purpose of use, and price.

2. Goods and services are considered substitutable in terms of characteristics if they have similarities or are similar in one or several of the following aspects:

a) Characteristics of goods and services;

b) Composition of goods and services;

c) Physical and chemical properties of goods;

d) Technical features of goods and services;

đ) Secondary effects of goods and services on users;

e) User absorption capacity;

g) Other distinctive features of goods and services.

3. Goods and services are considered substitutable in terms of purpose of use if they have the same primary purpose of use.

4. Goods and services are considered substitutable in terms of price when the price difference between them does not exceed 5% under similar transaction conditions. In cases where the price difference exceeds 5%, the National Competition Commission determines whether goods and services are substitutable in terms of price based on additional factors specified in Clause 5 of this Article or implements the method prescribed in Clause 6 of this Article.

5. When the determination of substitutability attributes of goods and services as stipulated in Clauses 2, 3, and 4 of this Article is insufficient to conclude on the related product market, the National Competition Commission may consider additional factors such as:

a) The rate of change in demand for one type of goods or services when there is a change in the price of another type of goods or services;

b) Costs and time required for customers to switch to purchasing or using other goods or services;

c) Usage period of goods or services;

d) Consumption customs;

đ) Legal regulations affecting the substitutability of goods or services;

e) Price differentiation capability for different customer groups;

g) Supply substitutability of one type of goods or services as provided for in Article 5 of this Decree.

6. When necessary, the National Competition Commission may determine the substitutability attribute in terms of price according to the following method:

Goods and services are considered substitutable in terms of price if at least 35% of a random sample of 1,000 consumers living in the relevant geographic area switch to purchasing or intend to purchase other goods or services with similar characteristics, purposes of use, and intended use in the case where the price of those goods or services increases by more than 10% and remains so for six consecutive months.

If the number of consumers living in the relevant geographic area specified herein is less than 1,000, the minimum random sample size shall be 50% of the total number of consumers in that geographic area.

Article 5. Determining Supply Substitutability

Supply substitutability refers to the ability of enterprises currently producing and trading a type of goods or services to increase their production volume or sales quantity, or for other enterprises to start or switch to producing and trading such products within less than six months without a significant rise in costs if the prices of those goods or services increase by 5% to 10%.

Article 6. Determining Related Product Markets in Special Cases

1. A related product market in special cases may be determined as the market of one or a group of specific goods or services based on the characteristics of those goods or services, consumption habits, or unique transaction methods, including those using information technology.

2. When determining a related product market as provided for in Clause 1 of this Article, consideration may also be given to the markets of complementary goods or services for the related product.

3. Complementary goods or services for a related product are those used to enhance the functionality, efficiency, or necessity for the use of the related product. Accordingly, when the price of complementary goods or services increases or decreases, the demand for the related product will correspondingly decrease or increase.

Article 7. Determining Relevant Geographic Markets

1. A relevant geographic market is a specific geographic area where goods or services can substitute each other under similar competitive conditions and significantly differ from adjacent geographic areas.

2. The boundaries of the geographic area specified in Clause 1 of this Article shall be determined based on the following factors:

a) The geographic area with business establishments of enterprises involved in distributing related goods or services;

b) Business establishments of other enterprises located in adjacent geographic areas close enough to the geographic area specified in Point a of this Clause to compete with related goods or services in that geographic area;

c) Transportation costs for goods and service provision;

d) Transportation time for goods and service provision;

đ) Barriers to entry and expansion of the market;

e) Consumption habits;

g) Costs and time for customers to purchase goods and services;

3. A geographic area shall be considered to have similar competitive conditions and significant differences from adjacent geographic areas if it meets any of the following criteria:

a) Transportation costs and transportation time cause the price of goods and services to increase by no more than 10%;

b) There is the presence of one of the barriers to entry and expansion of the market as stipulated in Article 8 of this Decree.

Article 8. Barriers to Entry and Market Expansion

Types of barriers to entry and market expansion include:

1. Legal barriers created by laws and state policies, including import tax regulations and import quotas; technical standards; conditions and procedures for producing and trading goods and services; regulations on the use of goods and services; industry standards, and other administrative decisions of state management agencies.

2. Financial barriers including investment costs for producing and trading goods and services, access to capital, credit, and other financial resources of enterprises.

3. Initial costs incurred upon entering the market that the enterprise cannot recover when exiting the market.

4. Barriers to accessing and holding essential supply sources, infrastructure for production and trading; distribution and consumption networks of goods and services in the market.

5. Consumption habits.

6. Business customs and practices.

7. Barriers related to the real power of organizations and individuals over intellectual property rights, including copyright and related rights, industrial property rights, and rights to plant varieties as prescribed by the law on intellectual property rights.

8. Other barriers to entry and market expansion.

Section 2

MARKET SHARE DETERMINATION

Article 9. Principles for Determining Market Share of Enterprises in Relevant Markets

1. The market share of enterprises in relevant markets shall be determined according to the methods prescribed in Article 10 of the Competition Law.

2. During the process of determining market share, the National Competition Commission has the right to seek opinions from sectoral management agencies, enterprises, organizations, and individuals with expertise.

Article 10. Determination of Market Share of Associated Enterprise Groups

1. Sales revenue, purchase volume, number of units sold, and purchased for a type of goods or service of associated enterprise groups shall be determined as follows:

a) Sales revenue, purchase volume, number of units sold, and purchased for a type of goods or service to determine the market share of associated enterprise groups shall be calculated as the total sales revenue, purchase volume, number of units sold, and purchased for that type of goods or service of all enterprises within the associated enterprise group;

b) Sales revenue, purchase volume, number of units sold, and purchased for a type of goods or service of associated enterprise groups shall not include sales revenue, purchase volume, number of units sold, and purchased from transactions between enterprises within the associated enterprise group.

2. The market share of an enterprise belonging to an associated enterprise group is the market share of that associated enterprise group.

Chapter III

ASSESSMENT OF THE EFFECT OR CAPABILITY TO CAUSE A SIGNIFICANT RESTRICTIVE IMPACT ON COMPETITION OF A COMPETITIVE RESTRICTION AGREEMENT

Article 11. Content of Assessment of the Effect or Capability to Cause a Significant Restrictive Impact on Competition of a Competitive Restriction Agreement

1. The National Competition Commission assesses the effect or capability to cause a significant restrictive impact on competition of competitive restriction agreements under the cases prescribed in Clause 3 and 4 of Article 12 of the Competition Law.

2. The assessment of the effect or capability to cause a significant restrictive impact on competition of a competitive restriction agreement is based on one or more of the following factors:

a) The changes in market share trends of participating enterprises are evaluated in comparison with other competing enterprises that are not part of the agreement;

b) Barriers to entry and expansion of the market are evaluated to determine the effect or capability to cause a restrictive impact of the agreement based on factors affecting business decisions when entering or expanding the market as stipulated in Article 8 of this Decree;

c) Restrictions on research and development, technological innovation, or technological capacity are evaluated to determine the effect or capability of the competitive restriction agreement to impact the goals of research and development, technological innovation, or enhancing technological capacity in related industries and fields;

d) Reduction in access to and control over essential infrastructure is evaluated based on the importance of such infrastructure for production and business activities and the costs and time required for competing enterprises not part of the agreement to access and control such infrastructure or similar infrastructure;

e) Increase in customer costs and time in purchasing goods or services from participating enterprises or switching to related goods or services is determined by comparing the costs and time required for customers to purchase goods or services from participating enterprises or switching to goods or services from competing enterprises before and after the agreement;

f) Hindering competition in the market through controlling industry-specific factors affecting participating enterprises is determined based on the degree of influence of these specific factors on the competitive activities of enterprises in the market.

3. A competitive restriction agreement shall be considered not to cause or have the capability to cause a significant restrictive impact on competition if it falls under any of the following cases:

a) For competitive restriction agreements among enterprises operating in the same relevant market, when the combined market share of participating enterprises is less than 5%;

b) For competitive restriction agreements among enterprises engaged in different stages of production, distribution, and supply of a specific type of goods or service, when the market share of each participating enterprise is less than 15%.

4. During the process of assessing the effect and capability to cause a restrictive impact on competition of an agreement, the National Competition Commission has the right to seek opinions from relevant agencies, organizations, and individuals and request participating enterprises to provide necessary information and documents.

Chapter IV

SIGNIFICANT MARKET POWER DETERMINATION

Article 12. Content to determine the significant market power of enterprises and groups of enterprises

1. The National Competition Commission determines the significant market power of enterprises and groups of enterprises as prescribed in Article 26 of the Competition Law based on one or several factors as follows:

a) The market share correlation among enterprises on the relevant market evaluated based on the comparison of market shares between enterprises, groups of enterprises on the relevant market;

b) Financial strength and scale of enterprises, groups of enterprises evaluated based on financial capacity, access to capital, credit and other sources of finance, total capital, total assets, number of workers, production scale, distribution network, consumption of goods and services of those enterprises, groups of enterprises in relation to other competing enterprises;

c) Barriers to entry and expansion of the market for other enterprises evaluated based on factors affecting the decision of enterprises when entering or expanding the market as prescribed in Article 8 of this Decree;

d) The ability to hold, access, and control the distribution market, consumption of goods and services or supply sources of goods and services evaluated based on the advantage of enterprises, groups of enterprises over competitors due to holding and controlling the distribution network, consumption of goods and services or supply sources of goods and services on the market;

đ) Technological and technical infrastructure advantages of enterprises, groups of enterprises evaluated based on technological and technical infrastructure advantages that enterprises, groups of enterprises own or use for production and business compared to competitors;

e) Ownership, holding, and access to infrastructure evaluated to determine the advantage of enterprises, groups of enterprises over competitors based on the degree of necessity and access to infrastructure for production and business of goods and services;

g) Ownership rights and usage rights of intellectual property objects evaluated to determine the advantage of enterprises, groups of enterprises over competitors based on the degree of necessity and access to intellectual property objects in the production and business activities of goods and services;

h) The ability to switch to alternative suppliers or demand for related goods and services determined based on the costs and time required for customers or enterprises to switch to purchasing or selling goods and services from other enterprises on the same relevant market;

i) Special factors in the industry or sector where enterprises, groups of enterprises are operating evaluated to determine the advantage of enterprises, groups of enterprises over competitors under specific conditions of that industry or sector;

2. During the process of determining the significant market power of enterprises, groups of enterprises, the National Competition Commission has the right to seek opinions from relevant agencies, organizations, and individuals and request enterprises to provide necessary information and documents.

Chapter V

ECONOMIC CONCENTRATION

Article 13. Thresholds for notification of economic concentration

1. Enterprises planning to participate in economic concentration, except for enterprises prescribed in Clause 2 of this Article, according to Clause 1 of Article 33 of the Competition Law, must notify the National Competition Commission before implementing economic concentration if they fall into one of the following cases:

a) Total assets on the Vietnamese market of the enterprise or group of associated enterprises of which it is a member reach VND 30,000 billion or more in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented;

b) Total sales revenue or purchase volume on the Vietnamese market of the enterprise or group of associated enterprises of which it is a member reach VND 30,000 billion or more in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented;

c) Value of the economic concentration transaction reaches VND 10,000 billion or more;

d) Combined market share of enterprises planning to participate in economic concentration reaches 20% or more on the relevant market in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented.

2. Credit institutions, insurance enterprises, securities companies planning to participate in economic concentration according to Clause 1 of Article 33 of the Competition Law must notify the National Competition Commission before implementing economic concentration if they fall into one of the following situations:

a) Total assets on the Vietnamese market of the enterprise or group of associated insurance enterprises of which it is a member, of the company or group of associated securities companies of which it is a member reach VND 150,000 billion or more in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented; total assets on the Vietnamese market of the credit institution or group of associated credit institutions of which it is a member reach 20% or more of the total assets of the system of credit institutions on the Vietnamese market in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented;

b) Total sales revenue or purchase volume on the Vietnamese market of the enterprise or group of associated insurance enterprises of which it is a member reach VND 100,000 billion or more in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented; total sales revenue or purchase volume on the Vietnamese market of the company or group of associated securities companies of which it is a member reach VND 30,000 billion or more in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented; total revenue on the Vietnamese market of the credit institution or group of associated credit institutions of which it is a member reach 20% or more of the total revenue of the system of credit institutions in the fiscal year immediately preceding the year in which economic concentration is expected to be implemented;

c) The value of the economic concentration transaction of insurance enterprises and securities companies from VND 3,000 billion upwards; the value of the economic concentration transaction of credit institutions at or above 20% of the total charter capital of the system of credit institutions in the fiscal year immediately preceding the year in which the economic concentration is expected to be implemented;

d) The combined market share of the enterprises planning to participate in economic concentration at or above 20% on the relevant market in the fiscal year immediately preceding the year in which the economic concentration is expected to be implemented. In cases where economic concentration is carried out outside the territory of Vietnam, the threshold for notification of economic concentration shall be applied according to points a, b, or d of Clause 1, points a, b, or d of Clause 2 of this Article.

Article 14. Preliminary Review of Economic Concentration

1. Within thirty days from the date of receipt of a complete and valid notification of economic concentration, the National Competition Commission shall issue a notice of the preliminary review results of the economic concentration regarding one of the following contents:

a) The economic concentration may be implemented;

b) The economic concentration requires a formal review.

2. The economic concentration may be implemented if it falls under any of the following circumstances:

a) The combined market share of the enterprises planning to participate in economic concentration is less than 20% on the relevant market;

b) The combined market share of the enterprises planning to participate in economic concentration is at or above 20% on the relevant market and the total squared market share of the enterprises after economic concentration on the relevant market is lower than 1,800;

c) The combined market share of the enterprises participating in economic concentration is at or above 20% on the relevant market, the total squared market share of the enterprises after economic concentration on the relevant market is over 1,800, and the increase in the total squared market share of the enterprises on the relevant market before and after economic concentration is lower than 100;

d) The enterprises participating in economic concentration have relationships with each other in the production, distribution, supply chain for a specific type of goods or service or the business sectors of the participating enterprises are inputs or complementary to each other, and their market share is less than 20% on each relevant market.

3. If the National Competition Commission has not issued a notice of the preliminary review results within the time limit specified in Clause 1 of this Article, the economic concentration may be implemented.

4. The economic concentration shall be subject to a formal review if it does not fall under the circumstances stipulated in Clauses 2 and 3 of this Article.

Article 15. Content of Assessment of Impact or Potential to Significantly Restrict Competition of Economic Concentration

1. The combined market share of the enterprises participating in economic concentration on the relevant market before and after economic concentration.

2. The degree of concentration on the relevant market before and after economic concentration is assessed to determine the risk of creating or reinforcing the market power of the enterprise, the potential to increase coordination or collusion among enterprises on the relevant market.

3. The relationship of the enterprises participating in economic concentration in the production, distribution, supply chain for a specific type of goods or service or the business sectors of the participating enterprises are inputs or complementary to each other is evaluated to determine the potential of the parties after economic concentration to create a dominant competitive advantage over other competing enterprises in order to prevent or eliminate competitors from entering the market.

4. The competitive advantages brought about by economic concentration on the relevant market are considered comprehensively based on the advantages of the enterprise after economic concentration in terms of product characteristics, production and distribution chains, financial capacity, brand, technology, intellectual property rights, and other advantages in relation to competitors on the relevant market, leading to the risk of creating or reinforcing significant market power of the enterprise formed after economic concentration.

5. The potential of the enterprise to increase prices or profit margin after economic concentration is assessed based on one or more of the following factors:

a) Expected changes in demand before the potential of the enterprise after economic concentration to increase prices, change production volume, or trading conditions of goods or services on the relevant market;

b) Expected changes in supply by competing enterprises on the relevant market before the potential of the enterprise after economic concentration to increase prices, change production volume, or trading conditions of goods or services;

c) Expected changes in price, production volume, and trading conditions of enterprises supplying goods or services as inputs for the participating enterprises;

d) Conditions and risks of competing enterprises on the market increasing coordination or agreements to raise selling prices or profit margins;

đ) Other factors affecting the potential of the enterprise after economic concentration to increase prices or profit margins.

6. The potential of the enterprise after economic concentration to eliminate or prevent other enterprises from entering or expanding the market is determined based on one or more of the following factors:

a) The level of control over input factors for production and business before and after economic concentration;

b) Competitive characteristics in the industry and sector and the competitive behavior of enterprises participating in economic concentration during the period before economic concentration;

c) Market entry barriers prescribed in Article 8 of this Decree;

d) Other factors leading to the potential of the enterprise after economic concentration to eliminate or prevent other enterprises from entering or expanding the market.

7. Specific factors in the industry or sector in which the participating enterprises are involved are considered when such factors directly affect or significantly alter the assessment results of the impact of restricting competition and the potential to restrict competition of economic concentration as stipulated in this Article.

Article 16. Content of Positive Impact Assessment of Economic Concentration

The National Competition Commission assesses the positive impact of economic concentration based on one or a combination of the following factors:

1. Positive impact on the development of industries, sectors, and science and technology according to the State's strategy and planning, which is evaluated based on aspects such as:

a) The potential for enhancing economic efficiency due to scale and resources of localities, professions, sectors, and society that economic concentration may bring, aligning with the goals set out in industry and sector development strategies and plans approved by the Government or the Prime Minister.

b) The level of application of scientific progress and technological improvements by enterprises post-economic concentration to increase productivity, quality, and business efficiency aimed at reducing costs, improving product and service quality, or serving the interests of the consumer community.

2. Positive impact on the development of small and medium-sized enterprises, considered based on evaluating opportunities and favorable conditions for these enterprises when entering, expanding markets, or participating in production chains and distribution networks of goods and services expected from economic concentration.

3. Strengthening the competitiveness of Vietnamese enterprises in the international market, assessed based on the positive consequences of economic concentration through expanding domestic production and consumption, exporting goods and services by enterprises post-economic concentration.

Chapter VI

 ANTITRUST LITIGATION

Section 1

EVIDENCE

Article 17. Rights and Obligations to Prove

1. The complainant has the right and obligation to collect, submit documents and evidence, and prove that the complaint is based and lawful.

2. A person with independent rights and obligations related to the case has the right and obligation to provide documents and evidence and prove that their request is based and lawful.

3. The defendant in a complaint, the subject under investigation, and a person with related rights and obligations opposing another party's complaint or request has the right to prove that opposition is based and must present evidence to prove it.

4. The antitrust investigation agency has the obligation to prove the violation of competition laws in cases stipulated in Clause 2 of Article 80 of the Competition Law.

Article 18. Circumstances and Events Not Requiring Proof

The following circumstances and events do not require proof:

1. Circumstances and events that are obvious and known to everyone and recognized by the Competition Restriction Case Handling Council or the National Competition Commission.

2. Circumstances and events recorded in documents that have been legally certified or notarized. In cases where there is doubt about the authenticity of the circumstances and events in this document, the National Competition Commission may request the agency, organization, or individual providing or submitting the document to produce the original or authentic copy.

3. If the defendant in a complaint, the subject under investigation, or a person with related rights and obligations acknowledges or does not oppose the circumstances, events, documents, or records presented by one party, then the presenting party does not need to prove them. If the defendant in a complaint, the subject under investigation, or a person with related rights and obligations has a representative participating in litigation, the acknowledgment or non-opposition of the representative is considered the acknowledgment of the party unless it exceeds the scope of representation.

Article 19. Submission of Evidence

1. Participants in competition proceedings as stipulated in Article 66 of the Competition Law, except for interpreters, have the right and obligation to submit documents and evidence to the Competition Investigation Authority, the Competition Restriction Case Handling Council during the investigation and resolution of competition cases.

2. The submission of evidence as provided in Clause 1 of this Article must be recorded in a protocol. The protocol must clearly state the name, form, content, and characteristics of the evidence; the number of copies and pages of the evidence and the time of receipt; the signature or thumbprint of the person submitting the evidence and the signature of the recipient and the stamp of the Competition Investigation Authority, the National Competition Commission. The protocol must be made in two copies, one copy kept in the competition case file and one copy given to the party submitting the evidence to keep.

3. Documents and evidence in ethnic minority languages or foreign languages must be accompanied by a certified Vietnamese translation.

4. The time for submitting documents and evidence shall not exceed the investigation period specified in Articles 81, 87 of the Competition Law, the supplementary investigation period specified in Articles 89, 90, 91 of the Competition Law, or as required by the Chairman of the National Competition Commission, the Competition Restriction Case Handling Council.

Article 20. Request for Expert Appraisal, Request for Appraisal

1. The Complainant, the Respondent, the Investigated Party, and the Interested Parties have the right to request the Head of the Competition Investigation Authority, the Competition Restriction Case Handling Council to issue a request for expert appraisal or to make their own request for appraisal if the Head of the Competition Investigation Authority, the Competition Restriction Case Handling Council refuses to issue a request for expert appraisal. The right to request an appraisal can be exercised within the investigation and handling period of the competition case.

2. Upon the request of the Complainant, the Respondent, the Investigated Party, or the Interested Parties, or when deemed necessary, the Head of the Competition Investigation Authority, the Competition Restriction Case Handling Council issues a decision to request an expert appraisal. In the decision requesting an expert appraisal, the name and address of the appraiser, the object to be appraised, the issues to be appraised, and specific requirements for the conclusions of the appraiser must be clearly stated.

3. If the appraisal conclusion is found to be unclear, upon the request of the Complainant, the Respondent, the Investigated Party, or the Interested Parties, or when deemed necessary, the Head of the Competition Investigation Authority, the Competition Restriction Case Handling Council may require the appraiser to explain the appraisal conclusion, summon the appraiser to directly present on the relevant content.

4. Upon the request of the Complainant, the Respondent, the Investigated Party, or the Interested Parties, or when deemed necessary, the Head of the Competition Investigation Authority, the Competition Restriction Case Handling Council issues a decision for additional appraisal in cases where the content of the initial appraisal conclusion is unclear, incomplete, or new issues arise related to the circumstances of the competition case that has already been appraised.

5. A re-appraisal shall be conducted if there is a basis to believe that the initial appraisal conclusion is inaccurate or there is a violation of the law.

Article 21. Request for Authentication of Allegedly Counterfeit Evidence

1. In cases where evidence is alleged to be counterfeit, the person presenting such evidence has the right to withdraw it; if they do not withdraw it, the complainant may request the Competition Investigation Agency or the Anti-Competitive Practices Handling Council to request authentication.

2. If the counterfeiting of evidence indicates a criminal offense, the Competition Investigation Agency or the Anti-Competitive Practices Handling Council shall transfer the matter to the competent investigative authority for examination in accordance with the provisions of the Criminal Procedure Law.

3. The person presenting counterfeit evidence must compensate for any damage caused to other organizations or individuals as a result of the counterfeiting of such evidence, and must bear the costs of authentication if the Competition Investigation Agency or the Anti-Competitive Practices Handling Council decides to request authentication.

Article 22. Entrusting the Collection of Documents and Evidence

1. During the handling of competition cases, the National Competition Commission may issue a decision entrusting the authorized agency specified in Clause 3 of this Article to take statements from parties involved in litigation or to take other measures to collect documents and evidence, and verify the details of the competition case.

2. The entrusted tasks for collecting documents and evidence must be clearly stated in the entrustment decision, including the name and address of the party involved in litigation and specific tasks entrusted for collecting documents and evidence.

3. In cases where the collection of documents and evidence must be conducted abroad, upon the request of the Head of the Competition Investigation Agency or the Anti-Competitive Practices Handling Council, the National Competition Commission shall proceed with the entrustment through the competent authority of Vietnam or the competent authority of another country that is a member of an international treaty providing for such matters, or carry out on a reciprocal basis without contravening Vietnamese law, and in compliance with international law and practice.

4. In cases where the entrustment cannot be carried out as prescribed in Clause 1 of this Article, or where the entrustment has been carried out but no response has been received, the National Competition Commission and the Anti-Competitive Practices Handling Council shall handle the competition case based on the information and evidence already available in the case file.

Article 23. Preservation of Evidence

1. In cases where evidence has been submitted to the Competition Investigation Agency or the Anti-Competitive Practices Handling Council, the Competition Investigation Agency or the Anti-Competitive Practices Handling Council shall be responsible for its preservation.

2. In cases where evidence cannot be submitted to the Competition Investigation Agency or the Anti-Competitive Practices Handling Council, the person currently holding the evidence shall be responsible for its preservation.

3. In cases where it is necessary to entrust a third party with the preservation of evidence, the Head of the Competition Investigation Agency or the Anti-Competitive Practices Handling Council shall issue a decision and record it in a handover document. The person receiving the preservation responsibility must sign the document, receive remuneration, and bear responsibility for the preservation of the evidence.

4. It is strictly prohibited to destroy documents or evidence.

Article 24. Evaluation of Evidence

1. The evaluation of evidence must be comprehensive, objective, thorough, and accurate.

2. The Competition Investigation Agency or the Anti-Competitive Practices Handling Council must evaluate each piece of evidence, the relationship between pieces of evidence, and affirm the legal value of each piece of evidence.

Article 25. Publication and Use of Evidence

1. All evidence shall be published and used publicly, except for cases provided for in Clauses 2 and 3 of this Article.

2. The Chairman of the National Competition Commission, the Competition Investigation Authority, and the Competition Restriction Handling Council shall not publish and use publicly the following evidence:

a) Evidence classified as state secrets under the provisions of the law;

b) Evidence related to customs, professional secrets, business secrets, and personal secrets at the legitimate request of the parties involved in competition litigation.

3. In necessary cases, the Chairman of the National Competition Commission, the Competition Investigation Authority, and the Competition Restriction Handling Council have the right to publish and use publicly some, part, or all of the evidence at an appropriate time for the purpose of investigation and handling of competition cases.

4. Authorities, persons conducting proceedings, and parties involved in proceedings must keep confidential those pieces of evidence that are not to be published and used publicly as stipulated in Clause 2 of this Article according to the provisions of the law.

Section 2

 ANTI-MEASURES AND GUARANTEES FOR ENFORCING ADMINISTRATIVE VIOLATIONS IN INVESTIGATION AND HANDLING OF COMPETITION CASES

Article 26. Procedure for Requesting Authorities with Competence to Apply Anti-Measures and Guarantees for Enforcing Administrative Violations in Investigation and Handling of Competition Cases

1. The Chairman of the National Competition Commission requests authorities with competence to apply anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases in writing.

2. The written request for applying anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases must include the following main contents:

a) Date, month, year;

b) Name and address of the enterprise, industry association, authority, organization, or individual subject to the application of anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases;

c) Summary of the violation of competition laws;

d) Reason for the necessity to apply anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases;

đ) Time, scope, and anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases to be applied, along with other specific recommendations.

3. Within three working days from the date of receipt of the request document, the requested authority must issue a decision to apply anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases. If the requested authority refuses to apply anti-measures and guarantees for enforcing administrative violations, it must respond in writing and provide clear reasons.

Article 27. Responsibility for Coordinating Implementation of Anti-Measures and Guarantees for Enforcing Administrative Violations in Investigation and Handling of Competition Cases

The National Competition Commission has the responsibility to coordinate with competent authorities when applying anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases.

Article 28. Revocation of Application of Anti-Measures and Guarantees for Enforcing Administrative Violations in Investigation and Handling of Competition Cases

If the reason for the necessity to apply anti-measures and guarantees for enforcing administrative violations in investigation and handling of competition cases no longer exists, the Chairman of the National Competition Commission requests the competent authority to revoke the measures already applied.

Chapter VII

IMPLEMENTING PROVISIONS

Article 29. Effective Date

This Decree takes effect from May 15, 2020.

Article 30. Implementation

1. The Ministry of Finance shall guide the establishment, management, and use of funds to ensure the costs incurred during the process of reviewing applications for exemption from restrictive competition agreements; during the process of reviewing notifications of economic concentration; during the process of investigating competition cases; and during the competition litigation process.

2. The Minister of Industry and Trade and the Chairman of the National Competition Commission are responsible for organizing the implementation of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairmen of provincial people's committees under the central government are responsible for implementing this Decree./.

                                                                                                             PRIME MINISTER

                                                                                                               PRIME MINISTER

                                                                                                                  (Signed)

                                                                                                          Nguyen Xuan Phuc