TRADE COMPETITION ACT B.E. 2542 (1999)
Bhumibol Adulyadej, Rex.,
Given on the 22nd day of March B.E. 2542;
Being the 54th Year of the Present Reign.
His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:
Whereas it is expedient to have a law on trade competition by revising the rules relating to anti-monopoly provided in the law on pricing fixing and anti-monopoly;
Knowing that this law contains certain provisions in relation to the restriction of a person's rights and liberties in regard to which Section 29 in conjunction with Section 31, Section 35, Section 36, Section 45, Section 48 and Section 50 of the Constitution of the Kingdom of Thailand so permit by virtue of provisions of law;
Be it, therefore, enacted by the King, by and with the advice and consent of the National Assembly, as follows:
This Act is called the "Trade Competition Act, B.E. 2542 (1999)".
This Act shall come into force after thirty days as from the date of its publication in the Government Gazette.
In this Act:
"business" means undertaking in agriculture, industry, commerce, finance, insurance, and services and shall include other undertakings prescribed by Ministerial Regulations;
"finance" means commercial banking under the law on commercial banking, finance and credit foncier businesses under the law on operation of finance, securities and credit foncier businesses, and securities business under the law on securities and securities exchange;
"business operation" means a distributor, manufacturer for distribution, orderer or importer into the Kingdom for distribution or purchaser for manufacture or redistribution of goods or a person engaging in the business of service providing;
"goods" means things capable of consumption and shall include documents of title to things;
"service" means engaging in the provision of work, providing any right, authorizing the use or exploitation of any property or undertaking in return for remuneration in the form of money or other benefit but shall not include the hire of service;
"price" means a price of goods and shall also include remuneration for services provided;
"business operator with market domination" means one or more business operators in the market of any goods or service who have the market share and sales volume above that prescribed by the Committee with the approval of the Council of Ministers and published in the Government Gazette, provided that the market competition condition shall also be taken into consideration;
"Commission" means the Trade Competition Commission;
"member" means a member of the Trade Competition Commission;
"Secretary-General" means the Secretary-General of the Trade Competition Commission;
"competent official" means a Government official appointed by the Minister to perform activities under this Act;
"Minister" means the Minister having charge and control of the execution of this Act.
This Act shall not apply to the act of:
Central administration, provincial administration or local administration;
State enterprises under the law on budgetary procedure;
Farmers' groups, co-operatives or co-operative societies recognized by law and having as their object the operation of businesses for the benefit of the occupation of farmers;
businesses prescribed by the Ministerial Regulation, which may provide for exemption from the application of this Act in whole or only in respect of any provisions thereof.
The Minister of Commerce shall have charge and control l of the execution of this Act, provided that in respect of financial undertakings, the Minister of Commerce and the Minister of Finance shall jointly have charge and control, and shall have the power to appoint competent officials, issue Ministerial Regulations for the execution of this Act and issue Notifications hereunder.
Such Ministerial Regulations and Notifications shall come into force upon their publication in the Government Gazette.
Trade Competition Commission
There shall be a Trade Competition Commission consisting of the Minister of Commerce as Chairman, Permanent-Secretary for Commerce as Vice-Chairman, Permanent-Secretary for Finance and not less than eight, but not more than twelve, qualified persons with knowledge and experience in law, economics, commerce, business administration or public administration appointed by the Council of Ministers, provided that at least one-half must be appointed from qualified members in the private sector, as members and the Secretary-General shall be a member and secretary.
The appointment of qualified persons under paragraph one shall be in accordance with the rules and procedure prescribed in the Ministerial Regulation.
A qualified person appointed as member must not be a political official, holder of a political position, executive member or holder of a position with the responsibility in the administration of a political party.
The Commission shall have the powers and duties as follows:
to make recommendations to the Minister with regard to the issuance of Ministerial Regulations under this Act;
to issue Notifications prescribing market share and sales volume of any business by reference to which a business operator is deemed to have market domination;
to consider complaints under Section 18 (5);
to prescribe rules concerning the collection and the taking of goods as samples for the purposes of examination or analysis under Section 19 (3);
to issue Notifications prescribing the market share, sales volume, amount of capital, number of shares, or amount of assets under Section 26 Paragraph two;
to give instructions under Section 30 and Section 31 for the suspension, cessation, correction or variation of activities by a business operator;
to issue Notifications prescribing the form, rules, procedure and conditions for an application for permission to merge businesses or jointly reduce and restrict competition under Section 35;
to consider an application for permission to merge businesses or jointly reduce or restrict competition submitted under Section 35;
to invite any person to give statements of fact, explanations, advice or opinions;
to monitor and accelerate an inquiry sub-committee in the conduct of an inquiry of offences under this Act.
to prescribe rules for the performance of work of the competent officials for the purpose of the execution of this Act;
to perform other acts prescribed by the law to be powers and duties of the Commission;
to consider taking criminal proceedings as in the complaint lodged by the injured person under Section 55.
The qualified member under Section 6 shall hold office for a term of two years.
At the expiration of the term under paragraph one, if a new qualified member is not yet appointed, the qualified member who vacates office at the expiration of the term shall continue to hold office for the purpose of the performance of work until a newly appointed qualified member takes office.
The qualified member who vacates office at the expiration of the term may be re-appointed but may not serve for more than two consecutive terms.
The provisions of Section 75, Section 76, Section77, Section 78, Section 79, Section 80, Section 81, Section 82 and 83 of the Administrative Procedure Act, B.E. 2539 (1996) shall apply to the appointment of a qualified member, the vacation of office of a qualified member and a meeting of qualified members mutatis mutandis, and a qualified member shall also vacate office upon being under the prohibitions under Section 7.
The Commission may appoint a sub-committee to consider and make recommendations on any matter or perform any act as entrusted and prepare a report thereon to the Commission.
The Commission shall appoint one or more specialized sub-committees consisting of, for each sub-committee, not less than four and not more than six persons qualified in the matter concerned and having knowledge and experience in various fields such as law, science, engineering, pharmacology, agriculture, economics, commerce, accountancy, or business administration as members, with the representative of the Department of Internal Trade as member and secretary.
The specialized sub-committee shall elect one member as the Chairman.
The specialized sub-committee has the duty to consider and give opinions to the Commission on the following matters, as entrusted by the Commission:
the matter concerning the conduct indicative of market domination, a merger of businesses, the reduction or restriction of competition under Section 25, Section 26, Section 27, Section 28 and Section 29;
the consideration of an application for permission to merge businesses or initiate a reduction or restriction of competition under Section 37;
other matters to be considered at the request of the Commission and other acts to be performed as entrusted by the Commission.
For the purpose of this Act, a specialized sub-committee may submit opinions or recommendations to the Commission with regard to the execution of this Act.
In carrying out the acts under paragraph one, the specialized sub-committee shall have the power to issue a written summons instructing the persons concerned to give statements or furnish documents or any other evidence for supplementing its consideration.
The Commission shall appoint one or more inquiry sub-committees consisting of, for each sub-committee, one person possessing knowledge and experience in criminal cases who is appointed from police officials, public prosecutors and, in addition, not more than four persons possessing knowledge and experience in economics, law, commerce, agriculture, or accountancy, as members, with the representative of the Department of Internal Trade as member and secretary.
The inquiry sub-committee shall have the power and duty to conduct an investigation and inquiry in relation to the commission of offences under this Act and, upon completion thereof, submit opinions to the Commission for further consideration.
The inquiry sub-committee shall elect one member as the Chairman.
In the performance of duties under this Act, a member of the Commission and member of an inquiry sub-committee under Section 14 shall have the same powers and duties as an inquiry official under the Criminal Procedure Code.
In the case where the Commission submits to the public prosecutor the opinion for prosecution, an objection to the public prosecutor's non-prosecution order under the Criminal Procedure Code shall be the power, vested in the Commissioner-General of the Thai Royal Police Force of the Province Governor as the case may be, to be instead exercised by the Chairman of the Commission.
The provisions of Section 9 and Section 10 shall apply mutatis mutandis the sub-committee, specialized sub-committee and inquiry sub-committee.
Office of the Trade Competition Commission
There shall be established the Office of the Trade Competition Commission in the Department of Internal Trade, Ministry of Commerce, with the Director-General, who shall be the superior official responsible for the official affairs of the Office, with the powers and duties as follows:
to carry out administrative tasks of the Commission, Appellate Committee and sub-committees appointed by the Commission;
to prescribe regulations for the purpose of the work performance of the Office of the Trade Competition Commission;
to monitor the movement and oversee conduct of business operators and report the same to the Commission;
to conduct studies, analyses and research into goods, services, and conduct in the operation of business and make recommendations and give opinions to the Commission on the prevention of market domination, mergers of businesses, reduction and restriction of competition in the operation of businesses;
to receive complaints by which it is alleged by any person that violation of this Act has been committed and to consider the same for submission to the Commission for its consideration, in accordance with the regulations prescribed and published in the Government Gazette by the Commission;
to co-ordinate with Government agencies or agencies concerned with the performance of duties under this Act;
to perform activities in the implementation of Notifications, regulations and resolutions of the Commission and perform such acts as entrusted by the Commission, Appellate Committee or sub-committees appointed by the Commission.
In the execution of this Act, the competent official shall have the following powers:
to issue a written summons requiring any person to give statements, facts or written explanations or furnish accounts, records, documents or any evidence for examination or supplementing his consideration;
to enter a place of business, manufacture place, distribution place, purchasing place, warehouse, or service place of the business operator or any person or other place reasonably suspected to accommodate the imminent commission of an offence under this Act for the purpose of examining and ensuring the compliance with this Act or searching for and attaching evidence or property capable of forfeiture under this Act or arresting offenders under this Act without warrant in the following circumstances:
(a) a fragrant offence is apparently being committed in the premises;
(b) the person having committed a fragrant offence has entered, while being pursued, or is reasonably and firmly suspected to have hidden in the premises;
(c) it is reasonably suspected that the evidence or property susceptible of forfeiture under this Act in the premises provided that it must also be reasonably suspected that the delay in the process of securing a warrant will result in the evidence or property being moved, hidden, destroyed or transformed from its original state;
(d) the person to be arrested is the owner of the premises and such arrest is one under a warrant or can be carried out without warrant;
For these purposes, the competent official shall have the power to inquire into facts or summon accounts, records, documents or other evidence from the business operator or from the persons concerned and instruct such persons in such premises to perform such act as is necessary;
to collect or take goods, in a reasonably quantity, as samples for an examination or analysis without payment of the prices of such goods, in accordance with the rules prescribed by the Commission in the Government Gazette;
to attach documents, accounts, records or evidence for the purpose of examination and taking legal proceedings under this Act .
In the performance of duties of the competent official, a person concerned shall render reasonable assistance.
In the performance of duties, the competent official shall produce an identity card to the persons concerned.
The identity card shall be in accordance with the form prescribed by the Minister in the Government Gazette.
The competent official shall send a written summons under Section 13 paragraph 3, Section 19 (1) or Section 44 (3) to a domicile or place of business of the person specified therein between sunrise and sunset of during the working hours of such person or may send the same by registered post requiring acknowledgement of receipt thereof.
In the case when the competent official has sent the summons under paragraph one but the person specified in the summons refused to accept it without justifiable ground, the competent official shall request an administrative or police officer to accompany him as a witness in order to leave the summons at such place. If the person specified in the summons is not found at his domicile or place of business, the summons may be sent to any person who is sui juris and residing at or working in such building or place of business. If no one is found or someone is found but refuses to accept the summons, the summons shall be posted in a conspicuous place at such domicile or place of business before the administrative or police officer so accompanying as a witness.
When the competent official has taken action under paragraph one or paragraph two, it shall be deemed that the person specified in the summons has received such summons, in the case of posting, at the expiration of five days after the date of posting, and, in the case of sending by a registered post requiring acknowledgement of receipt, at the expiration of five days as from the date of its receipt.
In the execution of this Act, members, members of the Appellate Committee or sub-committee, Secretary-General, and competent officials shall be the officials under the Penal Code.
For the purpose of arresting offenders under this Act, the competent official shall have the same powers as administrative or police officers under the Criminal Procedure Code.
An arrest of an offender may be made without a warrant when there appears the commission of a flagrant offence or other ground on which the administrative or police officer is permitted to make an arrest under the Criminal Procedure Code.
A business operator having market domination shall not act in any of the following manners:
unreasonably fixing or maintain purchasing or selling prices of goods or services;
unreasonably fixing compulsory conditions, directly or indirectly, requiring other business operators who are his customers to restrict services, production, purchase or distribution of goods, or restrict opportunities in purchasing or selling goods, receiving or providing services or securing credits from other business operators;
suspending, reducing or restricting services, production, purchase, distribution, deliveries or importation without justifiable reasons, destroying or causing damage to goods in order to reduce the quality to that lower than the market demand ;
intervening in the operation of business of other persons without justifiable reasons.
A business operator shall not merge businesses, which may result in monopoly or unfair competition as prescribed and published in the Government Gazette by the Commission unless the Commission's permission is obtained.
The publication by the Commission under paragraph one shall specify the minimum amount or number of market share, sale volume, capital, shares or assets in respect of which the merge of businesses is governed thereby.
The merger of businesses under paragraph one shall include:
a merger made by a manufacturer with another manufacturer, by a distributor with another distributor, by a manufacturer with a distributor, or by a service provider with another service provider, which has the effect of maintaining the status of one business and terminating the status of the other business or creating a new business;
a purpose of the whole or part of assets of another business with a view to controlling business administration policies, administration and management;
a purpose of the whole or part of shares of another business with a view to controlling business administration policies, administration and management;
The application by a business operator for the permission under paragraph one shall be submitted to the Commission under Section 35.
Any business operator shall not enter into an agreement with another business operator to do any act amounting to monopoly, reduction of competition or restriction of competition in the market of any particular goods or any particular service in any of the following manners:
fixing selling prices of goods or services as single price or as agreed or restrict the sale volume of goods or services;
fixing buying prices of goods or services as single price or as agreed or restrict the purchase volume of goods or services;
entering into an agreement to have market domination or control;
fixing an agreement or condition in a collusive manner in order to enable one party to win a bid or tender for the goods or services or in order to prevent one party from participating in a bid or tender for the goods or services;
fixing geographical areas in which each business operator may distribute or restrict the distribution of goods or services therein of fixing customers to whom each business operator may sell goods or provide services to the exclusion of other business operators from competition in the distribution of such goods or services;
fixing geographical areas in which each business operator may purchase goods or services or fixing persons from whom business operators may purchase goods or services;
fixing the quantity of goods or services which or to which each business operator may manufacture, purchase, distribute, or provide services with a view to restricting the quantity to be that lower than the market demand;
reducing the quality of goods or services to a level below that of previous production, distribution or provision, whether the distribution is made at the same or at a higher price;
appointing or entrusting any person as a sole distributor or provider of the same goods or services or those of the same kind;
fixing conditions or procedures in connection with the purchase or distribution of goods or services in or order to ensure the uniform or agreed practice.
In the case where it is commercially necessary that the acts under (5), (6), (7), (8), (9) or (10) be undertaken within a particular period of time, the business operator shall submit to the Commission under Section 35 an application for permission.
A business operator who has business relation, with business operators outside the Kingdom, whether contractual or through policies, partnership, shareholdings or in the form of relation of any other similar description, shall not carry out any cat in order that a person who is in the Kingdom and intends to purchase goods or services for personal consumption will have restricted opportunities to purchase goods or services directly from business operators outside the Kingdom.
A business operator shall not carry out any act which is not free and fair competition and has the effect of destroying, impairing, obstructing, impeding or restricting business operation of other business operators or preventing other persons from carrying out business or causing their cessation of business.
The Commission shall have the power to issue a written order instructing a business operator who has market domination, with market share of over seventy five percent, to suspend, cease or vary the market share. For this purpose, the Commission may prescribe rules, procedure, conditions and time limit for compliance therewith.
In the case where the Commission considers that a business operator violates Section 25, Section 26, Section 27, Section 28 or Section 29, the Commission shall have the power to issue a written order instructing the business operator to suspend, cease or vary such act. For this purpose, the Commission may prescribe rules, procedure, conditions and time limit for compliance therewith.
The business operator who receives the order under paragraph one and disagrees therewith shall have the right to appeal under Section 46.
The business operator may not claim compensation from the Commission by reason that the Commission has issued the order under paragraph one.
In the consideration of the case under Section 31, the Commission must afford the business operator, members of a specialized sub-committee, members of an inquiry sub-committee or competent officials concerned a reasonable opportunities to give explanations and present supporting evidence.
In issuing an order under Section 31, the Commission must specify reasons for such order both in respect of questions of fact and in questions of law, and signatures of the members considering the case shall be entered.
The notification of the order under paragraph two shall be carried out within seven days as from the day the Commission issues the order, and Section 22 shall apply mutatis mutandis.
The person receiving the order under Section 31 must comply with such order unless the Court or the Appellate Committee gives a decision or issues an order suspending the execution thereof or revoking the order of the Commission.
In the case where the Court gives a judgment that any business operator is guilty of an offence under Section 25, Section 26, Section 27, Section 28 or Section 29, the Court shall issue an order instructing the business operators to suspend, cease, rectify or vary such act.
Application for Permission and Consideration of Application
Any business operator wishing to apply for permission to carry out the act under Section 26 or Section 27(5), (6), (7), (8), (9) or (10) shall submit an application in accordance with the form, rules, procedure and conditions prescribed and published by the Commission in the Government Gazette.
The application must at least:
contain adequate reasons and specify necessity for the act;
specify the intended procedures therefore;
specify the duration therefore.
The Commission shall complete the consideration of the application under Section 35 within ninety days as from the date of its receipt; provided that the business operators, members of the specialized sub-committee and competent officials concerned must be given reasonable opportunities to give explanations and present supporting evidence.
In the case where the consideration cannot be completed within the time specified in paragraph one on account of necessity, the Commission may extend an extension of time for not more than fifteen days, but the reasons and necessity for the extension shall also be recorded therein.
When the Commission has made an inquiry and is of the opinion that the application under Section 35 submitted by the business operator is reasonably necessary in the business, beneficial to business promotion, has no serious harm to the economy and does not affect material and due interests of general consumers, the Commission shall issue such business operator with a written order granting permission. But if the Commission issues an order rejecting permission, the order shall be notified in writing to the business operator without delay.
In granting permission under paragraph one, the Commission may fix the time or any condition for compliance by the business operator to whom permission is granted, and, if it is of the opinion that economic situations, facts or conduct relied on by the Commission in its consideration have changed, the Commission may amend, make addition to or revoke such time or conditions at any time.
The business operators who receives the Commission's order and disagrees with such order shall have right to appeal under Section 46.
The Commission must specify reasons for the order granting or rejecting permission under Section 37 both in questions of fact and in questions of law and the order shall contain signatures of the members considering the application, and Section 32 paragraph three shall apply mutatis mutandis.
The business operator to whom permission is granted under Section 37 must carry out the business within the scope, duration and conditions permitted by the Commission.
In the case where there is a violation of or failure to comply with paragraph one, the Commission shall have power to revoke the permission order under Section 37 in whole or in part and may also fix the time within which compliance is required.
Initiation of an Action for Compensation
The person suffering injury as a consequence of the violation of Section 25, Section 26, Section 27, Section 28 or Section 29 may initiation an action for claiming compensation from the violator.
In initiating an action for claiming compensation under paragraph one, the Consumer Protection Commission or an association under the law on consumer protection has the power to initiate an action for claiming compensation on behalf of consumers or members of the association, as the case may be.
If the action for claiming compensation under Section 40 is not submitted to the Court within one year as from the day the person suffering the injury has or ought to have had the knowledge of the ground thereof, the right to submit the case to the Court shall lapse.
There shall be an Appellate Committee consisting of not more than seven qualified persons having knowledge and experience in law, economics, and business administration or public administration appointed by the Council of Ministers as members.
The member of the Appellate Committee shall elect one member to be Chairman.
The Director-General of the Department of Internal Trade shall appoint Government officials within the Department of Internal Trade to act as secretary and assistant secretaries.
The person appointed as member of the Appellate Committee must not be under the prohibitions under Section 7 and shall not be a member of the Commission.
The Appellate Committee shall have the following powers and duties:
to prescribe the rules and procedure for the appeal under Section 47 paragraph one;
to consider and decide on the appeal against an order of the Commission under Section 31 or Section 37;
to issue a summons requiring the persons concerned to give statements or furnish documents or evidence for supplementing the consideration of the appeal;
to issue an order suspending the execution of the order of the Commission under Section 31 or Section 37.
A member of the Appellate Committee shall hold office for a term of four years.
In the initial period, at the expiration of two years, three members of the Appellate Committee shall vacate office by drawing lots and such vacation of office by drawing lots shall be deemed as the vacation of office at the expiration of term.
Section 9 paragraph three and Section 10 shall apply to the Appellate Committee mutatis mutandis.
The appeal against the order of the Commission under Section 31 and Section 37 shall be submitted to the Appellate Committee by the person receiving the order within thirty days as from the date of the knowledge of the Commission's order.
The rules and procedure for the appeal shall be as prescribed and published in the Government Gazette by the Appellate Committee.
The Appellate Committee shall consider and decide on the appeal within ninety days as from the date of the receipt thereof and notify the decision in writing to the person submitting the appeal, and Section 36 and Section 38 shall apply mutatis mutandis.
The decision of the Appellate Committee shall be final.
When the Appellate Committee has decided upon the appeal, the Commission and business operators shall comply with such decision.
Any person who fails to comply with the summons issued by a specialized sub-committee, competent officials or the Appellate Committee under Section 13 paragraph 3, Section 19 (1) or Section 44 (3), as the case may be, shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding five thousand Baht or to both.
Any person who obstructs the performance of duties by the competent officials under Section 19(2), (3) or (4) or Section 22 shall be liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand Baht or to both.
Any person, who fails to render assistance to the competent officials under Section 20, shall be liable to imprisonment for a term not exceeding one month or to a fine not exceeding two thousand Baht or to both.
Any person who violates Section 25, Section 26, Section 27, Section 28 or Section 29 or fails to comply with Section 39 shall be liable to imprisonment for a term not exceeding three years or to a fine not exceeding six million Baht or to both, and, in the case of the repeated commission of the offence, shall be liable to the double penalty.
Any person who fails to comply with the order of the Commission under Section 30 or Section 31 or with the decision of the Appellate Committee under Section 47 shall be liable to imprisonment for a term of one year to three years or to a fine of two million to six million Baht, and to a daily fine not exceeding fifty thousand Baht throughout the period of such violation.
Any person discloses information concerning the business or operation of a business operator which, according to the ordinary course of dealing of the business operator, is the restrictive and confidential information and which such person has acquired or knew on account of the performance under this Act shall be liable to imprisonment for a term not exceeding one year, or to a fine not exceeding one hundred thousand Baht or to both, unless it is the disclosure in the performance of Government service or for the purpose of investigation or trial.
Any person who acquires or has the knowledge of any fact from the person under paragraph one and discloses such information in the manner likely to cause damage to any person shall be liable to the same penalty.
In the case where the offender who is liable to the penalty under this Act is a juristic person, the managing director, managing partner, or person responsible for the operation of the juristic person in that particular matter shall also be liable to the penalty provided for such offence unless he can prove that such act was committed without his knowledge of consent or that he already took appropriate precaution in preventing such offence.
The injured person in the offences under Section 51 and Section 54 may not institute a criminal action on his own motion but shall have the right to loge a complaint with the Commission for consideration under this Act.
All offences under this Act, which are punishable by fine or imprisonment for a term not exceeding one year, shall be under the power of the Commission to settle the cases. In exercising such power, the Commission may entrust a sub-committee, the Secretary-General or a competent official to act for him.
When the offender has paid the fine in the amount settled within the specified period, the case shall be deemed settled under the provision of the Criminal Procedure Code.
In the case where a business operator is under necessity and has carried on the acts specified in Section 27 (5), (6), (7), (8), (9) or (10) on the day this Act comes into force, such person shall submit an application within ninety days as from the date of the entry into force of this Act, and when the application has been submitted, such business operator may continue to carry out the acts under Section 27 (5), (6), (7), (8), (9) or (10) until he receives the notification of the result of the consideration of the application.
Published in Government Gazette, Vol. 116, Part 22b, dated 31st March 1999.