Pháp luật chống định giá lạm dụng của EU, Hoa Kỳ, Việt Nam – So sánh và kinh nghiệm áp dụng cho Việt Nam

LUND UNIVERSITY HOCHIMINH CITY FACULTY OF LAW UNIVERSITY OF LAW TRAN HOANG NGA REGULATIONS – A COMPARISON OF EU, US, AND VIETNAMESE LAWS AND AN APPLICATION OF ITS RESULTS TO HO CHI

LUND UNIVERSITY HOCHIMINH CITY

FACULTY OF LAW UNIVERSITY OF LAW

TRAN HOANG NGA

REGULATIONS

– A COMPARISON OF EU, US, AND

VIETNAMESE LAWS AND AN APPLICATION OF ITS RESULTS TO

HO CHI MINH CITY - 2011

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LUND UNIVERSITY HOCHIMINH CITY

FACULTY OF LAW UNIVERSITY OF LAW

TRAN HOANG NGA

REGULATIONS

– A COMPARISON OF EU, US, AND

VIETNAMESE LAWS AND AN APPLICATION OF ITS RESULTS TO

VIETNAM

Field of Study: International and Comparative Law

Code: 62.38.60.01

DOCTORAL DISSERTATION OF LAW

Swedish Supervisor Vietnamese Supervisor

Prof Hans Henrik Lidgard Asst Prof Le Thi Bich Tho

HO CHI MINH CITY - 2011

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Table of Contents

PREFACE 5

List of Abbreviations 7

1 INTRODUCTION 9

1.1 Background 9

1.1.1 Relationship of competition and monopoly 9

1.1.2 Pricing in competition and monopoly 11

1.1.3 Monopoly control laws in US, EU and Vietnam 11

1.2 Purposes: 25

1.3 Definition and delimitation 26

1.4 Methods 29

1.5 Value of the research: 31

1.6 Outline 31

2 REGULATIONS AGAINST ABUSIVE PRICING UNDER EU AND US LAW 33

2.1 Basic rules and concepts on abusive pricing in EU and US 33

2.1.1 Basic rules 33

2.1.1.1 EU Competition Law and US Anti-Trust Law are directed against abusive conduct, which includes abusive pricing 33

2.1.1.2 Laws against abusive pricing in the EU and the US protect Competition, not Competitors 45

2.1.2 Concept of Dominant position, Market power and Monopoly power 48

2.1.2.1 General approach: 48

2.1.2.2 Identification: 51

2.1.3 The Relevant Market concept 57

2.1.3.1 The relevant product market: 59

2.1.3.2 The relevant geographic market: 62

2.2 Specific forms of abusive pricing 64

2.2.1 Excessive pricing: 64

2.2.1.1 Excessive pricing on the selling side 65

2.2.1.2 Excessive pricing on the buying side 73

2.2.1.3 Remarks 75

2.2.2 Predatory pricing 76

2.2.2.1 EU test of predatory pricing 83

2.2.3 Price Squeeze 86

2.2.3.1 Price squeeze in the US 88

2.2.3.2 Price squeeze in the EU 92

2.2.4 Price Discrimination 98

2.2.4.1 Price discrimination in the US 99

2.2.4.2 Price discrimination in the EU 102

2.2.5 Discount or rebate schemes 104

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2.2.5.1 Bundled discounts 105

2.2.5.2 Single-product royalty discounts 110

2.2.6 Remarks 116

2.3 Remedies to abusive pricing in EU and US laws 117

2.3.1 Conduct and Structural Remedies 118

2.3.1.1 Termination of infringement 119

2.3.1.2 Behavioural remedies 120

2.3.1.3 Structural Remedies 121

2.3.2 Monetary Remedies 125

2.3.2.1 Fines and penalties 126

2.3.2.2 Compensation 128

2.3.2.3 Legal Fees 133

2.3.3 Criminalization and Incarceration: 134

2.3.4 Remarks 134

3 ABUSIVE PRICING IN VIETNAM COMPARED WITH EU AND US 137

3.1 Background, basic rules and concepts 138

3.1.1 Gradual development of legislation and enforcement capacity 138

3.1.1.1 Development of Vietnamese laws 138

3.1.1.2 Competent Authorities for regulating abuses of dominance 146

3.1.2 Recent practices related to of abuse of dominance 150

3.1.2.1 Vinapco case 151

3.1.2.2 Megastar case 153

3.1.2.3 K+ issue 154

3.1.2.4 “Electric pole war” 157

3.1.2.5 Medicine and milk prices 161

3.1.3 Basic rules 165

3.1.3.1 Abusive conducts including abusive pricing 165

3.1.3.2 Vietnamese Competition Law protects competition and competitors 170 3.1.4 Concepts 171

3.1.4.1 Dominance and monopoly position 171

3.1.4.2 Relevant market: 175

3.2 Specific forms of abusive pricing in Vietnamese laws 177

3.2.1 Excessive pricing: 178

3.2.1.1 Excessive pricing on the selling side 178

3.2.1.2 Excessive pricing on the buying side 180

3.2.1.3 Fixing a minimum re-selling price 182

3.2.2 Predatory Pricing: 184

3.2.3 Price Discrimination: 186

3.2.4 Foreclosing competitors 187

3.2.5 Remarks 189

3.3 Remedies to Abusive Pricing 190

3.3.1 Conduct and Structural Remedies 191

3.3.1.1 Conduct remedies 191

3.3.1.2 Structural remedies 192

3.3.2 Monetary remedies 192

3.3.2.1 Fine 192

3.3.2.2 Compensation 193

3.3.3 Remarks 194

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4 SUGGESTIONS FOR IMPROVING VIETNAMESE

REGULATIONS ON ABUSIVE PRICING AND CONCLUSIONS 195

4.1 Suggestions for improving the presentation and communication of competition matters 196

4.1.1 Publication of VCAD and VCC decisions 196

4.1.2 Categorize abuses of monopoly position along with abuse of a dominant position 197

4.1.3 Determination of a dominant position 198

4.1.3.1 Single firm dominance 198

4.1.3.2 Collective dominance 199

4.1.4 Determination of a relevant market 199

4.2 Suggestions on regulations on abusive pricing 200

4.2.1 Excessive pricing 200

4.2.2 Predatory pricing 202

4.2.3 Price discrimination 203

4.2.4 Market foreclosure 203

4.2.5 Price squeeze 203

4.2.6 Discount and rebate schemes 204

4.3 Suggestions on remedies for abusive pricing 205

4.4 Conclusion 206

5 Annexes 208

1 - Extract of the VLC 208

2 - Extract of the VLC – With suggested amendments 212

3 - Extract of Decree 116/2005 216

4 - Extract of Decree 116/2005 – with suggested amendments 222

Table of Cases 228

Official Documents 233

List of websites 235

BIBLIOGRAPHY 236

PREFACE

This dissertation is the visible result of my Ph.D research within the framework of the joint doctoral program between Lund University Faculty

of Law and Ho Chi Minh City University of Law, supported by SIDA’s

“Strengthening legal education in Vietnam” project The research focuses on laws against abuse of a dominant position in the EU, the US and Vietnam utilizing a comparative law approach

This dissertation would not have been accomplished without the help and contribution of several individuals, to whom I would like to express my deepest appreciation

First, it was my great honour to be supervised by Professor Hans Henrik Lidgard and Associate Professor Le Thi Bich Tho Professor Lidgard has given me invaluable guidance, advice and encouragement from the very first

to the final steps of the research He spent a great deal of his precious time reading and commenting my writing, and discussing the issues raised in my drafts Associate Professor Le Thi Bich Tho provided me not only with warm encouragement throughout the whole process, but also with insightful comments, especially with regard to the approach to Vietnamese law in my dissertation I would like to express my deep gratitude to Prof Lidgard and Asst Prof Le Thi Bich Tho for being my teachers and supervisors throughout both my masters and doctoral degree programs I am indebted to them for much of the professional legal content of my dissertation Any remaining errors are entirely my own

Second, I would like to send my special thanks to Mr Robert Schwartz, who helped me to improve my writing in the English language Moreover,

he provided me with many practical comments and relevant and valuable information Without his help, my dissertation would not reach the standard for international academic writing

Third, I would like to thank Dr Nguyen Thanh Tu, Professor Katarina Olsson, and all the other professors, doctors who were opponents or members of examining boards of annual prolongation seminars, during the course of which they gave me many meaningful comments and feedback on the content of drafts of this dissertation

Fourth, one thing I will never forget is the support and encouragement of the Lund University Faculty of Law and Ho Chi Minh City University of Law during my research I would like to express my gratitude to Prof Christina Moell, Prof Bengt Lundell, Prof Traskman, Asst Prof Mai Hong Quy, Dr Bui Xuan Hai, and many other professors, lecturers, administrative staff and librarians of the two universities In addition, I also would like to

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send my thanks to Suffolk Law School, where I was aided in US antitrust law research In particular my thanks go to Professor Stephen C Hicks, Mr Jonathan D Messinger and Suffolk’s administrative staff and librarians Finally, I would like to thank my parents, my children, my friends and

my students for their warm support, encouragement, care and love

Ho Chi Minh City, August 31, 2011

Tran, Hoang Nga

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List of Abbreviations

ASEAN Associations of South East Asian Nations

AAC Average avoidable cost

ATC Average total cost

AVC Average variable cost

CJEU Court of Justice of European Union

DOJ Department of Justice (US)

EC European Community (Communities)

EPL English Premier League

EU European Union

EVN Electricity of Vietnam Group

FTAIA Foreign Trade and Antitrust Improvements Act (US)

FTC Federal Trade Commission (US)

GC General Court (EU)

ICN International Competition Network

LRAIC Long run average incremental cost

MoF Ministry of Finance (Vietnam)

MoIT Ministry of Industry and Trade (Vietnam)

MPC Minimum – per – cap policy

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UN United Nations

UNCTAD United Nations Conference on Trade and Development

US United States of America

VCA Vietnam Competition Authority

VCC Vietnam Competition Council

VFF-FAN Vietnam football supporters association

VLC Vietnam Law on Competition

VSTV Viet Nam Satellite Digital Television

VTV Vietnam National Television

WTO World Trade Organization

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