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:
Section 1: This Act is called the "Trade Competition Act, B.E. 2542 (1999)".
Section 2: This Act shall come into force after thirty days as from the date of its publication in the Government Gazette.**
Section 3: 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.
Section 4: This Act shall not apply to the act of:
Section 5: 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 thereunder.
Such Ministerial Regulations and Notifications shall come into force upon their publication in the Government Gazette.
Trade Competition Commission
Section 6. 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.
Section 7. 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.
Section 8. The Commission shall have the powers and duties as follows:
Section 9. 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.
Section 10. 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.
Section 11. 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.
Section 12. The Commission shall appoint one or more specialised 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.
Section 13. The specialized sub-committee has the duty to consider and give opinions to the Commission on the following matters, as entrusted by the Commission:
For the purpose of this Act, a specialised 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 specialised 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.
Section 14. 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.
Section 15. 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.
Section 16. 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 Changwad Governor as the case may be, to be instead exercised by the Chairman of the Commission.
Section 17. The provisions of section 9 and section 10 shall apply mutatis mutandis the sub-committee, specialised sub-committee and inquiry sub-committee.
Office of the Trade Competition Commission
Section 18. 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:
Section 19. In the execution of this Act, the competent official shall have the following powers:
Section 20. In the performance of duties of the competent official, a person concerned shall render reasonable assistance.
Section 21. 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.
Section 22. 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.
Section 23. 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.
Section 24. 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.
Section 25. A business operator having market domination shall not act in any of the following manners:
Section 26. 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:
The application by a business operator for the permission under paragraph one shall be submitted to the Commission under section 35.
Section 27. 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:
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.
Section 28. 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.
Section 29. 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.
Section 30. 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.
Section 31. 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.
Section 32. In the consideration of the case under section 31, the Commission must afford the business operator, members of a specialised 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.
Section 33. 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.
Section 34. 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
Section 35. 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:
Section 36. 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.
Section 37. 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
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.
Section 38. 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.
Section 39. 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
Section 40. 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.
Section 41. 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.
Section 42. There shall be an Appellate Committee consisting of not more than seven qualified persons having knowledge and experience in law, economics, business administration or public administration appointed by the Council of Ministers as members.
The member of the Appellate Committee shall elect one member among themselves
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.
Section 43. 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.
Section 44. The Appellate Committee shall have the following powers and duties:
Section 45. 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.
Section 46. 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.
Section 47. 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.
Section 48. Any person who fails to comply with the summons issued by a specialised 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.
Section 49. 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.
Section 50. 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.
Section 51. 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.
Section 52. 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.
Section 53. 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.
Section 54. 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.
Section 55. 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.
Section 56. 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.
Section 57. 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.*Tentative Translation by Dr. Pinai Nanakorn, Legal Officer of the Foreign Law Division, Office of the Council of State. The translation is, at this stage, hurriedly prepared in the translator's personal capacity and on a non-remunerative basis in favour to the Department of Interior Trade for use in its seminar and for academic purposes.
** Published in Government Gazette, Vol. 116, Part 22b, dated 31st March 1999.