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Legal framework

Antitrust law

What are the legal sources that set out the antitrust law applicable to vertical restraints?

The main antitrust law applicable to vertical restraints in Thailand is the Trade Competition Act BE 2560 (2017) (the TCA 2017). The TCA 2017 became effective on 5 October 2017, replacing the Trade Competition Act BE 2542 (1999) (the TCA 1999), and prohibits monopolistic, restrictive and unfair trade behaviours and practices.

Chapter 3 of the TCA 2017 prescribes a range of acts that are considered to monopolise, reduce or restrict market competition, and from which operators are prohibited from performing.

Crucially, the TCA 2017 establishes the Office of the Trade Competition Commission (OTCC) as an independent agency, separate from the civil service and other state-owned enterprises, to regulate free and fair competition between businesses in Thailand.

Types of vertical restraint

List and describe the types of vertical restraints that are subject to antitrust law. Is the concept of vertical restraint defined in the antitrust law?

Vertical restraint is not defined per se under the TCA 2017. However, the concept of a ‘vertical agreement’ has been adopted and is mentioned in several sections under the new law, where previously it was not recognised.

The TCA 2017 distinguishes between ‘horizontal’ and ‘vertical’ agreements and prescribes a range of different penalties; the TCA 1999 only stated that business cartels (whether in the same market or not) were subject to the same penalties.

Section 55 of the TCA 2017 prohibits non-competing operators in different markets from monopolising, reducing, or restricting competition in any of the following ways:

  • fixing purchase or sales prices or any trade conditions that affect the price of goods and services;
  • limiting the quantity of goods or services;
  • allocating or fixing the geographic area for purchasing or selling goods or services;
  • reducing the quality of goods or services;
  • appointing or assigning any person as an exclusive distributor;
  • fixing conditions or practices; and
  • other acts as prescribed in the Trade Competition Commission’s notifications.

Legal objective

Is the only objective pursued by the law on vertical restraints economic, or does it also seek to promote or protect other interests?

No specific objective regarding vertical restraints is mentioned. Generally, the objective of the TCA 2017 is to enable free and fair trade between businesses and prohibit any activity that monopolises, reduces or restricts competition. It may be said that the new law promotes competition, and one of the benefits that results from it is the protection of other interests.

Responsible authorities

Which authority is responsible for enforcing prohibitions on anticompetitive vertical restraints? Where there are multiple responsible authorities, how are cases allocated? Do governments or ministers have a role?

The Trade Competition Commission (the Commission) is responsible for enforcing the TCA 2017, including protecting against anticompetitive vertical restraints. The OTCC, meanwhile, is responsible for the Commission’s administration.

Jurisdiction

What is the test for determining whether a vertical restraint will be subject to antitrust law in your jurisdiction? Has the law in your jurisdiction regarding vertical restraints been applied extraterritorially? Has it been applied in a pure internet context and if so, what factors were deemed relevant when considering jurisdiction?

Only vertical restraints that result in the monopolisation, reduction or restriction of competition are subject to the TCA 2017.

Section 58 of the TCA 2017 states that operators shall not perform any juristic act or enter into any agreement with an operator in a foreign country, without adequately ensuring that it does not result in monopolisation, or unfairly restrict trade, or cause significant harm to Thai consumers or the economy. Thus, regardless of the domicile in which the parties are located, if the parties’ actions impact the Thai market, then they are subject to the TCA 2017.

Since coming into effect, neither the TCA 1999 nor the TCA 2017 have been applied to prevent extraterritorial vertical restraints or in a pure internet context.

Agreements concluded by public entities

To what extent does antitrust law apply to vertical restraints in agreements concluded by public entities?

The TCA 2017 applies to all business operators, subject to some exceptions. Section 5 of the TCA 2017 defines a ‘business operator’ as a vendor, a producer for sale, a person who places an order or imports products into Thailand for sale, a buyer for the production or resale of goods or a service provider.

The TCA 2017 does not apply to the following entities:

  • central, regional or local administrative bodies;
  • state-owned enterprises, public organisations or other government agencies, provided that they carry out their business according to the law or to cabinet resolutions that are necessary for maintaining national security, or that concern the public interest or the provision of public utilities; and
  • businesses that are specifically regulated under other sectoral laws having jurisdiction over competition matters.

Subject to these exceptions, if any public entity falls under the definition of a business operator, then the TCA 2017 applies thereto.

Sector-specific rules

Do particular laws or regulations apply to the assessment of vertical restraints in specific sectors of industry (motor cars, insurance, etc)? Please identify the rules and the sectors they cover.

The Patent Act BE 2522 (1979) prohibits anticompetitive activity by patentees when granting licences to use their patents to other parties. The law states that the patentee shall not impose upon the licensee any condition, restriction or royalty term that is unjustifiably anticompetitive. The conditions, restrictions and terms that are considered unjustifiably anticompetitive are prescribed in the ministerial regulations issued by the Ministry of Commerce.

The Telecommunications Business Act BE 2544 (2001) and the Act on the Organisation to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications Services BE 2553 (2010) prohibit anticompetitive behaviour in the telecoms sector. The National Telecommunications Commission has issued several notifications to regulate operators when performing business that may give rise to monopolisation or unfair trade practices in the telecoms sector.

General exceptions

Are there any general exceptions from antitrust law for certain types of agreement containing vertical restraints? If so, please describe.

Section 56 of the TCA 2017 provides exceptions on the application of the rules on vertical restraints. The rules do not apply in situations where:

  1. the conduct of business operators is related to each other owing to a policy or commanding power;
  2. the joint agreement is for the purpose of developing production, distributing goods, or promoting economic or technical progress;
  3. the joint agreement is in a pattern of contracts between operators on different levels, in which one side grants a right in the goods or services, trademarks, business operation methods or business operation support, and the other side is granted rights, with a duty to pay charges, fees or other remuneration for the rights granted (eg, franchise agreement or authorised dealer); or
  4. the agreement type or business format is prescribed in a ministerial regulation on the advice of the Commission.

The joint agreements referred to in (ii) and (iii) shall not result in any limitation exceeding what is necessary in order to achieve the benefits mentioned, and shall not give rise to a monopolising power or substantially restrict competition, and the business operators having such joint agreement shall have market share of less than 10 per cent. Consumer impact also requires due consideration.

Types of agreement

Agreements

Is there a definition of ‘agreement’ - or its equivalent - in the antitrust law of your jurisdiction?

No, there is no definition of agreement in the TCA 2017. However, the Notification of the Trade Competition Commission RE: Criteria in Determining the Conduct Jointly Undertaken by the Business Operators that results in the Monopolisation, Reduction or Restriction of Competition, BE 2561 (2018) (the Notification 2018) prescribes the conduct that may result in the following horizontal or vertical agreements:

  • an agreement, whether being legally enforceable, or made in writing, or not, that may be concluded from a physical meeting, an exchange of documents, a telephone conversation or other method between business operators; or
  • a decision of an association or group of business operators.

In order to engage the antitrust law in relation to vertical restraints, is it necessary for there to be a formal written agreement or can the relevant rules be engaged by an informal or unwritten understanding?

It is not necessary for there to be a formal written agreement for the TCA 2017 to take effect; the rules regarding vertical restraints apply in all situations where competition is monopolised, reduced or restricted. Regardless of the form of the vertical restraint, the TCA 2017 prohibits any activity that monopolises, reduces or restricts competition in a market.

Parent and company-related agreements

In what circumstances do the vertical restraints rules apply to agreements between a parent company and a related company (or between related companies of the same parent company)?

Exceptions apply in situations where operators’ conduct is connected to a policy or commanding power. The Notification 2018 prescribes the meaning of business operators’ conduct that is connected to a policy as the relationship between at least two business operators whose policy or method in managing, administering or operating the business is under the commanding power of the same person or persons. Commanding power means one of the following:

(i) holding more than 50 per cent of the voting rights of such business operator;

(ii) having the power to control a vote in a business operators’ shareholders’ meeting, whether directly or indirectly;

(iii) having the power to appoint or remove a director in a business operator, whether directly or indirectly; or

(iv) having commanding power according to both (i) and (ii) at all shareholding levels.

Agent-principal agreements

In what circumstances does antitrust law on vertical restraints apply to agent-principal agreements in which an undertaking agrees to perform certain services on a supplier’s behalf for a sales-based commission payment?

No specific guidelines apply. Subject to the exceptions, the general rules are applicable to an agent-principal agreement if it results in the monopolisation, reduction or restriction of competition.

Where antitrust rules do not apply (or apply differently) to agent-principal relationships, is there guidance (or are there recent authority decisions) on what constitutes an agent-principal relationship for these purposes?

See question 12.

Intellectual property rights

Is antitrust law applied differently when the agreement containing the vertical restraint also contains provisions granting intellectual property rights (IPRs)?

Section 56 of the TCA 2017 states that the rules regarding vertical restraints do not apply if the joint agreement is in a pattern of contracts between operators on different levels, in which one side grants a right in the goods or services, trademarks, business operation methods or business operation support, and the other side is granted rights, with a duty to pay charges, fees or other remuneration for the rights granted. However, the joint agreement shall not result in any limitation exceeding what is necessary in order to achieve the benefits of the joint agreement, and shall not give rise to a monopolising power or substantially restrict competition. Consumer impact also requires due consideration.

Analytical framework for assessment

Analytical framework for assessment

Framework

Explain the analytical framework that applies when assessing vertical restraints under antitrust law.

Vertical restraints are not unlawful per se; a ‘rule of reason’ is employed in the application of the TCA 2017. If there is an alleged violation of law or a complaint is received, then the OTCC will refer the case to the Commission, which will then appoint one or more subcommittees of inquiry. These subcommittees investigate the alleged violation or complaint.

The basic criteria for determining whether or not a vertical restraint is prohibited under the law is to examine the relevant market’s structure, in terms of geography (ie, where it is located) and what products are sold there, and if the actions of the business operator restrict or reduce competition or give rise to unfair trade.

If the parties are without market power, or even if the parties have market power but their activities do not damage the general economic interest, monopolise, reduce or restrict competition, or give rise to unfair trade, then the vertical restraint may not be considered as anticompetitive. However, the Commission will focus on the business operators that have more than a 10 per cent share in aggregate in a market.

Market shares

To what extent are supplier market shares relevant when assessing the legality of individual restraints? Are the market positions and conduct of other suppliers relevant? Is it relevant whether certain types of restriction are widely used by suppliers in the market?

The Commission will consider the supplier’s market share, market position and other circumstances relevant to the supplier’s market when assessing the legality of individual restraints.

To what extent are buyer market shares relevant when assessing the legality of individual restraints? Are the market positions and conduct of other buyers relevant? Is it relevant whether certain types of restriction are widely used by buyers in the market?

See question 16.

No cases of vertical restraints in relation to online sales have been recorded.

Block exemption and safe harbour

Function

Is there a block exemption or safe harbour that provides certainty to companies as to the legality of vertical restraints under certain conditions? If so, please explain how this block exemption or safe harbour functions.

There is no block exemption or safe harbour under current Thai competition law.

Types of restraint

Assessment of restrictions

How is restricting the buyer’s ability to determine its resale price assessed under antitrust law?

The OTCC has issued the Notification 2018 on the restrictions that apply to resale prices, price discounts, incremental changes in price, ranges of resale prices, minimum or maximum resale prices and quantities, and other conditions that result in the monopolisation, reduction or restriction of competition.

Such restrictions also include the imposition of discount, rebate and resale price calculation methods. The guidelines do not prohibit suggesting or recommending resale prices.

Even though the TCA 1999 was replaced by the TCA 2017, section 92 of the TCA 2017 provides that all the criteria, ministerial regulations, notifications and regulations issued under the TCA 1999 that are effective on the date before the TCA 2017 takes effect shall remain effective as long as they do not conflict with or contradict the TCA 2017 and until other criteria, ministerial regulations, notifications and regulations issued under the TCA 2017 become effective. As such, the guidelines issued by the OTCC by virtue of the TCA 1999 still apply unless new guidelines are issued under the TCA 2017.

Have the authorities considered in their decisions or guidelines resale price maintenance restrictions that apply for a limited period to the launch of a new product or brand, or to a specific promotion or sales campaign; or specifically to prevent a retailer using a brand as a ‘loss leader’?

The guidelines broadly specify that when launching a new brand or product, the price shall not be fixed to be lower than the average total cost for an excessive period of time, depending on the type of brand or product, which, in any case, shall not exceed one month. This restriction does not apply to products that require immediate sale so as to avoid damage occurring (eg, products that easily spoil and almost expired and out-of-date products).

Relevant decisions

Have decisions or guidelines relating to resale price maintenance addressed the possible links between such conduct and other forms of restraint?

The OTCC’s guidelines do not address the possible links between resale price maintenance and other forms of restraint.

Have decisions or guidelines relating to resale price maintenance addressed the efficiencies that can arguably arise out of such restrictions?

No cases have been recorded and no guidelines have been issued to address such efficiencies.

Explain how a buyer agreeing to set its retail price for supplier A’s products by reference to its retail price for supplier B’s equivalent products is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how pricing relativity agreements should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Suppliers

Explain how a supplier warranting to the buyer that it will supply the contract products on the terms applied to the supplier’s most-favoured customer, or that it will not supply the contract products on more favourable terms to other buyers, is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how wholesale most-favoured nations (MFNs) should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how a supplier agreeing to sell a product via internet platform A at the same price as it sells the product via internet platform B is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how retail MFNs in the online environment should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how a supplier preventing a buyer from advertising its products for sale below a certain price (but allowing that buyer subsequently to offer discounts to its customers) is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how a supplier preventing a buyer from advertising its products for sale below a certain price should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how a buyer’s warranting to the supplier that it will purchase the contract products on terms applied to the buyer’s most-favoured supplier, or that it will not purchase the contract products on more favourable terms from other suppliers, is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how this issue should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Restrictions on territory

How is restricting the territory into which a buyer may resell contract products assessed? In what circumstances may a supplier require a buyer of its products not to resell the products in certain territories?

Vertical restraints on exclusive territories are subject to assessment under the TCA 2017. The TCA 2017 prohibits the allocation of areas for operators to purchase or sell goods or reduce sales, or allocate purchasers or sellers to purchase or sell goods on condition that other operators will not purchase or sell such goods, if this results in the monopolisation, reduction or restriction of competition in that particular market.

Exclusive territories are not prohibited in the case of authorised dealers or franchises, if such restriction is for the benefit of sales or after-sale services.

Have decisions or guidance on vertical restraints dealt in any way with restrictions on the territory into which a buyer selling via the internet may resell contract products?

Neither the TCA 1999 nor the TCA 2017 specify how restrictions on the territory into which a buyer selling via the internet may resell contract products should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Restrictions on customers

Explain how restricting the customers to whom a buyer may resell contract products is assessed. In what circumstances may a supplier require a buyer not to resell products to certain resellers or end-consumers?

A vertical restraint on customer allocation may be considered as exclusivity dealing. See question 28.

Restrictions on use

How is restricting the uses to which a buyer puts the contract products assessed?

Neither the TCA 1999 nor the TCA 2017 specify how restricting the uses to which a buyer puts the contract products should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Restrictions on online sales

How is restricting the buyer’s ability to generate or effect sales via the internet assessed?

No decisions have been issued and no guidance has been provided by the OTCC or the Commission, and no judgments have been rendered by the courts regarding this issue.

Have decisions or guidelines on vertical restraints dealt in any way with the differential treatment of different types of internet sales channel? In particular, have there been any developments in relation to ‘platform bans’?

The general rules regarding vertical restraints apply across all types of platform. No decisions have been issued and no guidance has been provided by the OTCC or the Commission regarding this issue.

Selective distribution systems

Briefly explain how agreements establishing ‘selective’ distribution systems are assessed. Must the criteria for selection be published?

Neither the TCA 1999 nor the TCA 2017 specify how agreements establishing selective distribution systems should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. Agreements establishing selective distribution systems may be considered as ‘exclusivity dealing’, when a dominant market power utilises its position to monopolise, reduce or restrict competition.

Are selective distribution systems more likely to be lawful where they relate to certain types of product? If so, which types of product and why?

No rules or guidelines specifying the difference between types of products when assessing selective distribution systems have been issued by the OTCC or the Commission.

In selective distribution systems, what kinds of restrictions on internet sales by approved distributors are permitted and in what circumstances? To what extent must internet sales criteria mirror offline sales criteria?

No rules or guidelines specifying the difference between restrictions on online and offline sales in selective distribution systems have been issued by the OTCC or the Commission.

Has the authority taken any decisions in relation to actions by suppliers to enforce the terms of selective distribution agreements where such actions are aimed at preventing sales by unauthorised buyers or sales by authorised buyers in an unauthorised manner?

No cases have been recorded and no guidelines have been issued by the Commission regarding this issue.

Does the relevant authority take into account the possible cumulative restrictive effects of multiple selective distribution systems operating in the same market?

No cases have been recorded and no guidelines have been issued by the Commission regarding this issue.

Has the authority taken decisions (or is there guidance) concerning distribution arrangements that combine selective distribution with restrictions on the territory into which approved buyers may resell the contract products?

No cases have been recorded and no guidelines have been issued by the Commission regarding this issue.

Other restrictions

How is restricting the buyer’s ability to obtain the supplier’s products from alternative sources assessed?

Neither the TCA 1999 nor the TCA 2017 specify how restricting the buyer’s ability to obtain the supplier’s products from alternative sources should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

How is restricting the buyer’s ability to sell non-competing products that the supplier deems ‘inappropriate’ assessed?

Neither the TCA 1999 nor the TCA 2017 specify how restricting the buyer’s ability to sell non-competing products that the supplier deems ‘inappropriate’ should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how restricting the buyer’s ability to stock products competing with those supplied by the supplier under the agreement is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how restricting the buyer’s ability to stock products competing with those supplied by the supplier under the agreement should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

How is requiring the buyer to purchase from the supplier a certain amount or minimum percentage of the contract products or a full range of the supplier’s products assessed?

Neither the TCA 1999 nor the TCA 2017 specify how requiring the buyer to purchase from the supplier a certain amount or minimum percentage of the contract products or a full range of the supplier’s products should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how restricting the supplier’s ability to supply to other buyers is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how restricting the supplier’s ability to supply to other buyers should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Explain how restricting the supplier’s ability to sell directly to end-consumers is assessed.

Neither the TCA 1999 nor the TCA 2017 specify how restricting the supplier’s ability to sell directly to end-consumers should be assessed. The general rules apply when assessing whether or not an act results in monopolising, reducing or restricting market competition. To date, no decisions have been issued and no other guidance has been provided by the OTCC or the Commission.

Have guidelines or agency decisions in your jurisdiction dealt with the antitrust assessment of restrictions on suppliers other than those covered above? If so, what were the restrictions in question and how were they assessed?

No decisions have been issued and no guidance has been provided by the OTCC or the Commission regarding the antitrust assessment of restrictions on suppliers, other than that provided above.

Notification

Notifying agreements

Outline any formal procedure for notifying agreements containing vertical restraints to the authority responsible for antitrust enforcement.

There is no requirement to notify the Commission about agreements containing vertical restraints.

Authority guidance

If there is no formal procedure for notification, is it possible to obtain guidance from the authority responsible for antitrust enforcement or a declaratory judgment from a court as to the assessment of a particular agreement in certain circumstances?

Section 59 of the TCA 2017 provides that an operator may submit a request to the Commission to consider vertical restraints on its business. When considering a request, the Commission may impose conditions that the operator must follow in order to comply with the law. The Commission’s decisions are binding in terms of scope and for the time period prescribed by the Commission.

If, afterwards, it appears to the Commission that the information received from the requesting operator to be used by the Commission in its assessment is neither substantially accurate nor complete, or the requesting operator does not comply with the conditions prescribed by the Commission, then the Commission can reverse its decision.

The submission of a request shall be in accordance with the criteria and methods prescribed in the Commission’s notifications. To date, no further criteria or methods have been stipulated.

Enforcement

Complaints procedure for private parties

Is there a procedure whereby private parties can complain to the authority responsible for antitrust enforcement about alleged unlawful vertical restraints?

Private parties can complain about alleged unlawful vertical restraints to the OTCC in writing, verbally or by electronic means, in accordance with the OTCC’s regulations. The OTCC will refer the complaint to the Secretary-General of the Commission, who will request the Commission’s lawyers to opine on any violations of applicable law. The Secretary-General of the Commission will then make a decision, which will be delivered to the complainant within 15 days of the date of the decision.

Regulatory enforcement

How frequently is antitrust law applied to vertical restraints by the authority responsible for antitrust enforcement? What are the main enforcement priorities regarding vertical restraints?

Most cases investigated by the Commission involve unfair trade practices and abuse by dominant market powers. The majority of cartel cases involve horizontal agreements. The number of cases involving vertical restraints remains low.

What are the consequences of an infringement of antitrust law for the validity or enforceability of a contract containing prohibited vertical restraints?

Agreements containing vertical restraints do not automatically become null and void. If the Commission has sufficient evidence to believe that a violation of competition law has occurred, then the Commission has the power to order the operator to suspend, stop, correct or alter its business conduct. However, the Commission may only order the offending clauses to be amended; the remaining contract will not be affected.

May the authority responsible for antitrust enforcement directly impose penalties or must it petition another entity? What sanctions and remedies can the authorities impose? What notable sanctions or remedies have been imposed? Can any trends be identified in this regard?

Section 60 of the TCA 2017 provides that, if the Commission has sufficient evidence to believe that an operator has violated or will violate the law, then the Commission may order the operator to suspend, stop, correct or alter its business conduct. In issuing such order, the Commission may impose conditions that are required in order to achieve the purposes of the law. In addition, the Commission is empowered to issue administrative fines directly to operators for perceived vertical restraint offences. Any operator in receipt of an order, who disagrees with such order’s issuance, has the right to file a lawsuit in an administrative court within 60 days of receiving the order.

Investigative powers of the authority

What investigative powers does the authority responsible for antitrust enforcement have when enforcing the prohibition of vertical restraints?

Section 63 of the TCA 2017 grants broad investigative powers to the OTCC, which include:

(i) the power to issue a subpoena for any person to provide an oral presentation, factual information or an explanation in writing, or to provide accounts, documents, registrations or any evidence for examination or consideration;

(ii) the power to enter places and venues of operation, production, sale, purchase, storage or service provision of a business operator or other person, or any place where it is reasonably believed that a violation of competition law is occurring or has occurred for the purposes of searching and seizing, or gathering accounts, documents, registrations or any evidence for the benefit of examination or consideration and proceeding with a case under the law. In such case, the OTCC has the power to inquire into factual information or call for accounts, documents, registrations or other evidence from business operators or relevant persons, as well as instruct any person on the premises to act as necessary; and

(iii) the power to collect or bring goods in the required quantity as a sample for examination or analysis without paying for the goods.

In the case of (ii), if a search is being carried out pursuant to the Criminal Procedure Code, then a search warrant is required unless there is cause to believe that the process of obtaining the warrant may result in a delay and that documents or other evidence may be removed, hidden, destroyed or changed, in which case officers are permitted to proceed to search, seize or gather the documents or evidence without the warrant. The Criminal Procedure Code must, however, be followed at all times. Beginning a search at night is prohibited unless it is the operational time of the place being searched.

Private enforcement

To what extent is private enforcement possible? Can non-parties to agreements containing vertical restraints obtain declaratory judgments or injunctions and bring damages claims? Can the parties to agreements themselves bring damages claims? What remedies are available? How long should a company expect a private enforcement action to take?

Any person suffering damage as a result of a violation of competition law has the right to file for compensation against the offender to the Intellectual Property and International Trade Court. In filing a lawsuit for damages, the Consumer Protection Commission, or associations or foundations that the Consumer Protection Commission recognises under the law on consumer protection, has the right to file a lawsuit for damages on behalf of consumers or the members of such associations or foundations. The lawsuit must be filed within one year of the date that the person suffering damages knows (or should have known) the cause of such damage; otherwise, the right to bring the case to court lapses.

Other issues

Other issues

Is there any unique point relating to the assessment of vertical restraints in your jurisdiction that is not covered above?

No.

Update and trends

Recent developments

What were the most significant two or three decisions or developments in this area in the last twelve months?

Recent developments

The Commission has, by virtue of the TCA 2017, issued certain notifications, including the Notification 2018 and the Notification of the Trade Competition Commission RE: Criteria in Considering the Acquisition of Assets or Shares in order to Control Policy, Business Administration, Direction or Management that is Considered a Merger of Business, BE 2561 (2018), as well as other notifications that prescribe the criteria and methods for officers to exercise their powers under the TCA 2017.

Anticipated developments

After the issuance of notifications under the TCA 2017, the full and complete implementation of the TCA 2017 is expected upon the referal of any trade competition cases or claims to the authorities.