PROCEDURES FOR NOTIFICATION OF ECONOMIC CONCENTRATIONS

Legal basis:

• Competition Law 2018; and

• Decree 35/2020/ND-CP of the Government guiding on several articles of Competition Law.

The enterprises engaging in economic concentration must file a dossier of economic concentration notification (hereinafter referred to as notification dossier) to the National Competition Commission as prescribed in Article 34 Competition Law 2018 before initiating economic concentration if they reach the notification threshold.

1. Notification dossier

According to the provisions of Clause 1, Article 34 of the Competition Law 2018, a notification dossier shall consist of:

• A notification of economic concentration issued by the National Competition Commission;

• Agreed contents of the economic concentration or draft contracts, memorandum of understanding regarding economic concentration between/among enterprises;

• Valid copies of the business registration certificates of similar documents of all enterprises engaging in economic concentration;

• Financial statements of all enterprises engaging in economic concentration in two consecutive years before the notification year or, in case of newly-established enterprises, from the establishment time to the notification time as per the law;

• The list of parent companies, subsidiaries, associate companies, branches, representative offices and other affiliated entities of every enterprise engaging in economic concentration (if any);

• The list of goods, services dealt in by each enterprise engaging in economic concentration;

• Information about market shares in the sector where economic concentration will take place held by every enterprise engaging in economic concentration in 2 consecutive years before the notification year;

• Proposed remedies for possible anti-competitive effects of the economic concentration;

• Report on assessment of positive effects of economic concentration and measures to enhance the positive effects of economic concentration.

Of note: Enterprises submitting notification dossiers shall be accountable for the truthfulness of their dossiers. Vietnamese translations are required if documents in the dossier are made in foreign language.

2. Procedures for notification of Economic concentrations

Step 1: Submit an economic concentration notice dossier

Enterprises shall submit dossiers of notification of economic concentration through the online public service portal of the Ministry of Industry and Trade, by post or directly to the Ministry of Industry and Trade.

Step 2: Receipt of notification dossiers

• The National Competition Commission shall receive notification dossiers.

• Within 7 working days from receipt of an exemption application, the National Competitive Commission shall notify the applicant in writing that whether the application is complete and valid.

If the application is incomplete or invalid, the National Competition Commission shall notify the applicant in writing of deficiencies need amendments and allow them 30 days to make amendments from the date of notice.

Upon expiry of 30 days, if no amendment is made or the application is not amended completely, the National Competition Commission shall return the notification dossier.

Step 3: Preliminary assessment of economic concentration

Within 30 days from receipt of a complete and valid notification dossier, the National Competition Commission shall notify the preliminary assessment result that:

• Economic concentration is approved; or

• Economic concentration is subject to further official assessment.

Step 4: Official assessment of economic concentration

The National Competition Commission shall carry out the official assessment of economic concentration within 90 days from the date on which a notification of preliminary assessment result prescribed in Point b Clause 2 Article 36 Competition Law.

In complicated cases, the time limit for official assessment of economic concentration may be extended, but not exceeding 60 days and the National Competition Commission shall inform enterprises submitting the notification dossier.

Consultation during the assessment of economic concentration

• During the assessment of economic concentration, the National Competition Commission may consult the bodies which manage the domains/sectors where enterprises engaging in the economic concentration are operating.

• Within 15 days from the date on which the request for consultation made by the National Competition Commission is received, the relevant entity shall respond in writing and provide documentation supporting their consultation.

• During the assessment of economic concentration, the National Competition Commission may consult other related entities.

Additional documentation on economic concentration

• During the official assessment of economic concentration, the National Competition Commission may require the enterprise submitting notification dossier to provide additional documentation but not exceeding 2 times.

• The enterprise submitting notification dossier shall provide additional documentation on economic concentration and be accountable for the completeness and accuracy of the documentation provided at the request of the National Competition Commission.

Step 5: Decision on economic concentration

Upon completion of the official assessment of economic concentration, the National Competition Commission shall issue a decision determining that:

• The economic concentration is approved;

• The economic concentration is subject to conditions prescribed in Article 42 Competition Law; or

• The economic concentration is prohibited.

Of note: The decision on economic concentration shall be sent to enterprises engaging in economic concentration within 5 working days from the date of issuance.

ADK & Co Vietnam Lawyers Law Firm