Tiến Sĩ Regulations against abusive pricing - a comparison of eu, us and vietnamese law and an application o

Luận án tiến sĩ năm 2011
Đề tài: REGULATIONS AGAINST ABUSIVE PRICING – A COMPARISON OF EU, US, AND VIETNAMESE LAWS AND AN APPLICATION OF ITS RESULTS TO VIETNAM
Pháp luật chống định giá lạm dụng của EU, Hoa Kỳ, Việt Nam – So sánh và kinh nghiệm áp dụng cho Việt Nam

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 andcompetitors
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
3
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

1. INTRODUCTION
1.1. BACKGROUND
Competition and monopoly are integral issues to deal with in a market
economy. While many other countries have long experience in dealing with
these issues, Vietnam only commenced the process oftransitioning from a
planned to a market economy a little more than two decades ago. Thus,
Vietnam currently faces many theoretical and practical challenges involved
in protection of effective competition. Due to its own unique circumstances,
abuses of dominance are one of the most serious problems for the
Vietnamese market. Research in this field, therefore, has a significant
potential for improving the Vietnamese economy. This part of the
dissertation presents different perspectives on therelevant issues, in order to
explain the importance of the subject. It begins with a discussion on
relationship between competition and monopoly. Then a description of
economic theories on relationship of prices and competition is briefly
presented in order to describe the influence of pricing by enterprises on
various kinds of market. It concludes with a description of the legal and
practical situation of Vietnam in order to demonstrate the importance of
research into the regulation of abusive pricing forthe country.
1.1.1.Relationship of competition and monopoly
Competition is an essential feature of a market economy. Fair
competition benefits society. Within the overall framework of an intense
struggle among suppliers for resources and economic benefit, competition
motivates them to improve their performance at all times. Practical benefits
are the result, such as the improvement of goods and the quality of service,
with consumers getting more reasonable prices day by day. However,
competition in the long run may also lead to another result, because, as is
10
often said, “competition sows the seeds of its own destruction”.
1
Competition encourages the economic development, but there are always
winners and losers, and when winners are too successful and grow in
strength beyond a certain limit, they may achieve monopoly positions
whereby they are able to prevent others from competing and damage the
process as a whole. Especially, monopoly positions contain ability of
independently decide, or even govern, prices.
From a philosophical perspective, competition and monopoly are
considered to be two dialectically connected sides of a perfect whole.
2
Monopoly is the opposite pole of competition: where monopoly exists,
competition does not. Like other economic phenomena, monopoly has
advantages and disadvantages. When monopoly is the reward for successful
competition, it motivates competitors, thus encouraging the development of
production and the economy. Enterprises approaching monopoly size by
way of successful competition usually have financial and technical
strengths, and are often leaders in researching and applying advanced
techniques. Their size and economies of scale may help to minimize the
fixed costs of each unit, and the monopoly enterprise can satisfy market
demand at a low price, fulfil market demand with less waste and free the
otherwise wasted resources for other uses. However,once monopoly exists
stably and firmly, the market may lose its ability to motivate. Customers are
forced to depend on the monopoly enterprise, so any element of balance
may be lost. This leads to the enterprise becoming over-confident, ignoring
the demands and interests of customers. Furthermore, monopolists may be
attempted to abuse their monopoly position by keeping output at a level
lower than demand in order to push prices up and maximize profit. In the
long term, monopoly may deny consumers and society the ability to choose
from among the best alternatives for their demands.Personnel and financial
allocation will not be able to maximize efficiencies resulting in serious
1
See e.g.European Commission’s Ninth Report on Competition Policy, NinthReport on
Competition Policy (1979) p.10 ("It is an established fact that competition carries within it
the seeds of its own destruction."). Available at
http://ec.europa.eu/competition/publications/annual_report/index.html: ; See also Edward
Cattermole, The Development and Implications of 'Collective Dominance' in EC
Competition Law, Lund University Centre for European Studies Working Paper No. 14
(2002) p. 14 Available at http://www.cfe.lu.se/publikationer/cfe-working-papers-series: ;
and Marco Lankhorst, Increasing the Requirements to Show Antitrust Harm in Modernised
Effects-Based Analysis: An Assessment of the Impact on the Efficiency of Enforcement of
Art 81 EC, (2010) (Ph.D. dissertation University of Amsterdam Center for Law &
Economics) p.20 ("Yet, competition carries within it the seeds of its own destruction.")
Available at http://dare.uva.nl/document/159558.
2
Dang, Vu Huan, Regulations on monopoly control and anti-unfair competitive activities
in Vietnam [Pháp luật về kiểm soát độc quyền và chống cạnh tranh không lành mạnh ở Việt
Nam], National Politics Publisher, Hanoi, 2004, p. 18, in Vietnamese.
11
damage to consumers and society.
1.1.2.Pricing in competition and monopoly
In a market economy, prices are one of the most important signs of the
state of competition. Prices are established and exercised by economic rules.
In a market economy prices are the result of competition. In a comparative
metaphor, if demand – supply relationship is considered as the “material
bones”, prices are considered to be the “face” and competition is the “soul”
of the market.
3
Most basic economic concepts are relevant to prices. For
example, the market demand curve represents the relationship between price
and supply; elasticity of demand measures the relationship between the
price of the product and the demand for it; the relationship between prices
and costs is used to describe perfect competition as well as monopoly. The
question of whether sellers are price-takers or price-makers is applied to
identify whether the market is competitive, monopolistic, or oligarchic. In a
competitive market, prices are decided by objective economic rules,
especially by the interrelation between supply and demand. So sellers must
obey the rules and charge the most appropriate prices in the framework of
the rules which serve their competition target. Otherwise, they cannot to
exist in the long run and will be driven from the market.
Prices are also important tools used by competitorsin their struggle for
existence and for a position in the market. Pricingis an extremely important
job in every enterprise in a market economy. It is the basis for the realization
of business targets. In competition, pricing is utilized at the first instance.
Strategies applied to other elements of production such as quality, functions,
or guarantees, after-sales care, etc., are, after all, of indirect relevance to
prices. Pricing can be used for pro-competitive or anti-competitive purposes.
In a monopoly market, the power to govern prices is in the hands of the
seller. There is a great tendency to exploit that power to extract benefits and
maintain the monopolist’s position. Therefore, it is necessary that the power
of regulation be in the proper “hands” in order to curb this danger to a
competitive market.
1.1.3.Monopoly control laws in US, EU and
Vietnam
The market and its self-correcting mechanisms will erode monopoly

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