04.20.2015
Latest Amendment to Taiwan Fair Trade Act Became Effective on February 4, 2015.
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On January 22, 2015, the Taiwan Legislative Yuan passed the amendment to the Fair Trade Act (hereinafter referred to as “the Act”) to keep the Act in tune with world trends and strengthen the legislation on antitrust law. The Act became effective on February 4, 2015 except that the effective date of Articles 10 and 11 of the Act is March 6, 2015. Highlights of this latest amendment are summarized as follows:
A. Merger:
1. The turnover and shareholding of the affiliate companies (including brother/sister companies under common control) shall be accumulated in addition to those of the parent/subsidiary companies when calculating the party’s market shares.
2. A natural person or a group that has controlling interest in an enterprise is deemed as an enterprise and should also be subject to the merger control rules.
The Fair Trade Commission (FTC) is authorized to announce different turnover thresholds applicable to different industries.
B. Concerted action:
1. The mutual understanding of the concerted action may be presumed by considerable factors, such as market condition, characteristics of the goods or service, cost and profit considerations, and economic rationalization of the business conducts.
2. If the purpose of a concerted action is beneficial to the economy as a whole and in the public interest, such as for improving industrial development, technological innovation, or operational efficiency, the enterprise may file an application with the FTC for approval.
C. Suspension of investigation: In conducting investigations into an enterprise’s conduct that may violate the provisions of the Act, if such enterprise makes commitments to take specific measures to cease and rectify its alleged illegal conduct within the time prescribed by the FTC, the FTC may suspend the investigation.
D. Penalty clauses:
1. Fines for competition restraint have been doubled, and the statute of limitations on administrative sanctions has been extended from three years to five years.
2. The FTC may grant exemption or reduction of fines for enterprises who inform the FTC in writing about the concrete illegal conduct of the concerted action as well as submit the evidence and assist the investigation before FTC is aware of the said illegal conduct, or during the period in which the FTC investigates the said illegal conduct (leniency program).
3. If any trade association or organization violates the provisions of this Act, the FTC may impose a penalty on such trade association/organization and any member who participates in such violation. The aim is to prevent members of trade association/organization escaping their responsibility under the cover of such association/organization.
E. Special remedy procedures for administrative sanctions made according to this Act: Where disposition or decisions made by the FTC pursuant to this Act are objected or challenged, the procedures for administrative litigation shall apply directly (the procedures for administrative appeal are no longer applicable).
In spite of the foregoing, the FTC regrets that the Legislative Yuan deleted draft provisions that empower the FTC to conduct a search and seizure against violators of the Act. The FTC also noted that a search and seizure is an important means in gathering violating evidence, applied by many foreign competition authorities, therefore the FTC will strive to include the search and seizure provisions in future amendments to the Act.
A. Merger:
1. The turnover and shareholding of the affiliate companies (including brother/sister companies under common control) shall be accumulated in addition to those of the parent/subsidiary companies when calculating the party’s market shares.
2. A natural person or a group that has controlling interest in an enterprise is deemed as an enterprise and should also be subject to the merger control rules.
The Fair Trade Commission (FTC) is authorized to announce different turnover thresholds applicable to different industries.
B. Concerted action:
1. The mutual understanding of the concerted action may be presumed by considerable factors, such as market condition, characteristics of the goods or service, cost and profit considerations, and economic rationalization of the business conducts.
2. If the purpose of a concerted action is beneficial to the economy as a whole and in the public interest, such as for improving industrial development, technological innovation, or operational efficiency, the enterprise may file an application with the FTC for approval.
C. Suspension of investigation: In conducting investigations into an enterprise’s conduct that may violate the provisions of the Act, if such enterprise makes commitments to take specific measures to cease and rectify its alleged illegal conduct within the time prescribed by the FTC, the FTC may suspend the investigation.
D. Penalty clauses:
1. Fines for competition restraint have been doubled, and the statute of limitations on administrative sanctions has been extended from three years to five years.
2. The FTC may grant exemption or reduction of fines for enterprises who inform the FTC in writing about the concrete illegal conduct of the concerted action as well as submit the evidence and assist the investigation before FTC is aware of the said illegal conduct, or during the period in which the FTC investigates the said illegal conduct (leniency program).
3. If any trade association or organization violates the provisions of this Act, the FTC may impose a penalty on such trade association/organization and any member who participates in such violation. The aim is to prevent members of trade association/organization escaping their responsibility under the cover of such association/organization.
E. Special remedy procedures for administrative sanctions made according to this Act: Where disposition or decisions made by the FTC pursuant to this Act are objected or challenged, the procedures for administrative litigation shall apply directly (the procedures for administrative appeal are no longer applicable).
In spite of the foregoing, the FTC regrets that the Legislative Yuan deleted draft provisions that empower the FTC to conduct a search and seizure against violators of the Act. The FTC also noted that a search and seizure is an important means in gathering violating evidence, applied by many foreign competition authorities, therefore the FTC will strive to include the search and seizure provisions in future amendments to the Act.
