This article was written by our Lawyer Nguyen Nhat Duong and Nguyen Ngoc Tu Linh published in the Legal Electronic Magazine on December 22, 2023. Below is the English version:
Between 2016 - 2020, the Competition Authority resolved approximately 56 complaints related to unfair competitive practices1. As defined by the law, an unfair competitive practice refers to a company's activity that contravenes the principles of good faith, honesty, commercial practices, and other business standards, resulting in, or potentially leading to, harm to the legitimate rights and interests of other companies2. Under current regulations, both organizations and individuals possess the right to file a complaint with the competition authority upon discovering such violations. Drawing on legal research and practical experience, this presentation aims to elucidate and analyze the key considerations that companies should take into account when preparing to file a complaint in cases of unfair competition.
1. Concerning the statute of limitations for filing complaints in unfair competition cases
Based on our experience, before filing an unfair competition complaint, companies should consider whether to file a complaint or file a lawsuit, such as a lawsuit in court to claim damages, for example, for instance, VinaSun sued Grab 5 years ago3. On the grounds that a complaint about an unfair competition case is mainly for the purpose of informing the competition authority about the handling of the violating party's practice, not to resolve the defendant's claim for compensation. Therefore, if companies find that a rival company's unfair competition practice causes damage and want to be compensated for such damage, the company should sue the offending company directly in court. On the other hand, if there is no need to require the infringing company to pay damages, or the damages cannot be determined, or it is determined that it will be extremely difficult to prove the damages, the company may proceed with the complaint procedure.
In short, complaining about unfair competitive practices only means notifying the competition authority so that it can take corrective measures and help stabilize the market. From a legal point of view, civil litigation and competition litigation are two completely different processes.
In short, complaining about unfair competitive practices only means notifying the competition agency so that it can take corrective measures and help stabilize the market. From a legal perspective, civil litigation and competition litigation are also completely different two processes.
If a company has made a decision to initiate a complaint procedure with the Competition Authority, it should be noted that the complaint must be filed within 03 years from the date when the act shows signs of violating competition law, according to clause 2 Article 77 of the Law on Competition 2018. The fact is that it is quite difficult for companies to determine the date of this violation, especially in the case of acts restricting competition or economic concentration. In particular, in cases of unfair competition, it is easier to determine the above-mentioned time because there are often relatively clear signs. As soon as a violation is discovered, companies should immediately file a complaint in order to comply with the provisions of the law, bearing in mind that the step of filing a complaint or collecting evidence will take a long time.
2.Regarding the dossier components and the submission process for complaints on unfair competition cases to the National Competition Commission
The current Law on Competition contains quite explicit provisions regarding the elements of the dossier and the procedure for resolving complaints in cases of unfair competition. Therefore, we will not refer to them again in this article. However, based on our practical experience, we would like to make the following recommendations to companies:
First, when preparing documents to complain about unfair competition cases pursuant to Clause 3 Article 77 of the Competition Law 2018, for complaints about unfair competition cases, enterprises must refer to Form M02 in Decision No. 60/QD-CT just issued by the National Competition Commission on July 5, 2023. For details on this form, the website of the National Competition Commission is a reference for companies4.
In addition, after receiving the Company's complaint file within 07 working days, the National Competition Commission will only conduct a preliminary examination of the completeness and validity of the complaint file and will not conduct any further substantive examination. At that time, the company will be notified that the application has been received. Within 15 days from the date of notification to the parties, the National Competition Commission will officially review the dossier content based on the provisions of Clause 3 Article 77 of the Competition Law 2018. If the content of the dossier is in accordance with the provisions of the law, the National Competition Commission may take the next steps. On the contrary, if the dossier does not meet the requirements, the company will receive a written notice from the National Competition Commission regarding the completion of the dossier.
Second, if the company needs more time to supplement the complaint file, according to the regulations, the company as the complainant must apply to the National Competition Commission to extend the additional documents, this extension is not automatic. This is essential content that enterprises should take note of on the grounds that if they do not supplement within the legal time limit, the documents will be returned. There are currently no specific instructions in the law or from the competent authorities on how to request an extension of the deadline for supplementing the complaint dossier. We believe that if the company has not completed the supplemental documents before the expiration of the 30-day period, it should send a written request for extension to the NCA, which should include information about the company based on the NCA's notice of supplemental file numbers, the legal basis for requesting an extension of time to supplement. In addition, the time limits specified here are all "days", not "working days", so companies need to include weekly holidays, holidays, Tet, etc. to comply with the supplement within the legal terms.
Related to the content mentioned in Section 1 about the statute of limitations for complaints, because the Competition Law allows enterprises to supplement complaint documents within a period of up to 45 days, so enterprises can file in advance to ensure compliance with the statute of limitations for complaints, then take advantage of this provision to supplement additional documents.
3. With respect to the proving obligations of the complaining party
Companies complaining about unfair competition cases are obliged to provide evidence to support their complaints5. The collection of evidence to prove unfair competitive practices should be carried out before the company files a complaint, as it is an important part of the dossier and the basis for the National Competition Commission to decide whether to investigate a case of unfair competition. It should be noted that the definition of evidence, the sources of evidence and the determination of evidence are specifically provided in Article 56 of the Competition Law 2018, and companies strictly comply with this provision. In particular, according to Article 19 of Decree 35/2020/ND-CP, the submission of evidence must be recorded in writing and made in two copies, one of which is kept by the party submitting the evidence. Accordingly, the company that is the complaining party has the right and obligation to collect and submit evidence. When completing the submission of evidence, it should be noted that the recipient of the above record is entitled to its rights and evidentiary basis in case of dispute.
In addition, when carrying out the burden of proof, companies should consider a number of events and cases where the burden of proof does not arise, as prescribed in Article 18 of Decree 35/2020/ND-CP, in order to avoid wasting time in gathering evidence. For example, if events and details have been widely and explicitly disseminated to the public and recognized by the Anti-Competition Council or the National Competition Commission, the company does not have to prove them, similar to the case of dossiers and texts that the complaining party, the investigated party, persons with relevant rights and obligations or representatives of these subjects admit or do not deny. In addition, documents, dossiers and applications with confirmation and authentication by the competent authorities are also considered to be evidence for the company, even in the case where the burden of proof does not increase.
In conclusion, when filing complaints in competition cases in general and unfair competition cases in particular, companies should consider three crucial issues: (i) the time limit for filing complaints, (ii) the documentation and complaint procedures, and (iii) the burden of proof by collecting and submitting evidence to the competition authority. The fact that enterprises understand the laws and regulations and proactively and actively complain about violations in practice will be of great significance, not only in protecting the rights and interests of enterprises, but also in helping the antitrust authorities to promptly investigate and deal with unfair competitive practices, thereby adjusting and stabilizing the market.
Read the article at: Khiếu nại vụ việc cạnh tranh không lành mạnh: Doanh nghiệp cần chuẩn bị những gì?
Footnotes
1. https://tapchicongthuong.com.vn/bai-viet/ty-le-giai-quyet-khieu-nai-thanh-cong-cho-nguoi-tieu-dung-tren-95-78151.htm, accessed on November 28, 2023.
2. Clause 6 Article 3 Law on Competition 2018.
3. https://diendandoanhnghiep.vn/tai-sao-vinasun-lai-khoi-kien-grab-ve-hanh-vi-canh-tranh-khong-lanh-manh-124404.html, accessed on November 27, 2023.
4. For more information:http://www.vcca.gov.vn/default.aspx?page=news&do=detail&id=c37118e3-eb3d-4b76-843c-addebfa296b3, accessed on December 21, 2023.
5. Clause 3, clause 4 Article 77 Law on Competition 2018, Article 17 Decree 35/2020/ND-CP.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
