Promulgated on 24 June 1992; Amendments Promulgated on 30 August 1999
Article 1
These Enforcement Rules are adopted pursuant to the provisions of Article 48 of the Fair Trade Law (hereinafter referred to as the "Law").
Article 2
The following factors shall be taken into consideration when determining whether an enterprise constitutes a monopoly as referred to in Article 5 of the Law:
Article 3
Absent any one of the circumstances set forth in the following subparagraphs, no enterprise shall be considered as a monopoly provided for in the preceding article:
Even though there is one of the circumstances as set forth in the preceding paragraph, in case the market share of an individual enterprise does not reach one-tenth of the particular market or in case its total sales in the preceding fiscal year are less than one billion NT Dollars, such enterprise shall not be considered as a monopoly.
Despite the existence of the circumstances specified in the preceding two paragraphs, under which an enterprise shall not be considered as a monopoly, the central competent authority may nevertheless determine that such enterprise constitute a monopolistic enterprise where its establishment or its provision of goods or services to a particular market is subject to legal or technological restrictions or where other circumstances exist that would affect market supply and demand and might impede the ability of others to compete.
Article 4
Production, sales, inventory, and import/export value (volume) data for the enterprise and the particular market shall be taken into account when calculating the market share of an enterprise.
Data necessary for the calculation of the market share may be based on that obtained upon investigation by the central competent authority or that recorded by other government agencies.
Article 5
Concerted action under Article 7 of the Law is limited to horizontal one among enterprises at the same stage of production and/or marketing, through which the market functions of production, trade in goods, or supply and demand of services are capable of being affected.
"Other form of mutual understanding" in Article 7 means communications of intents other than contract or agreement that, irrespective of whether any binding effect exists, could in fact lead to joint action.
Restricting activities of enterprises by a trade association through its charter, a resolution of a member meeting or a directors/supervisors meeting, or other means shall also be considered as a horizontal concerted action as set out in the first paragraph of this article; the representative of such trade association may be deemed as the actor.
Article 6
“Sales amount” in subparagraph 3, paragraph 1, Article 11 of the Law means the total sales amount of an enterprise.
Calculation of the “total sales amount” referred to in the preceding paragraph shall be based on data obtained through investigation by the central competent authority or recorded by other government agencies.
Article 7
An application for approval of a merger of enterprises required by paragraph 1, Article 11 of the Law shall be filed with the competent central authority by the following enterprises:
Article 8
An application for approval of a merger of enterprises required by paragraph 1, Article 11, of the Law shall be filed with the central competent authority with the following documents attached:
- the type and substance of the merger;
- personal name and residence or domicile of each participating enterprise, or the name of each participating company, sole proprietorship or partnership, or organization, and the location of office or place of business for each participating enterprise;
- the scheduled date of merger;
- the name of the agent, if any, and the supporting document therefor,
- other necessary information;
- the name and residence or domicile of the representative or administrator, if any, of each enterprise;
- the capital and scope of business of each participating enterprise;
- the turnover in the preceding fiscal year of each participating enterprise and any enterprise with which it has a relationship of control or subordination;
- the number of employees of each participating enterprise.
The form of the application referred to in the preceding paragraph shall be set by the central competent authority.
Article 9
Where the materials submitted with the application for approval of merger are incomplete or are deficient in content, the central competent authority may require supplementation or correction of the application within a specified period of time, stating the reasons for such requirement, and may dismiss the application for failure to comply within the specified period.
Supplementation or correction referred to in the preceding paragraph is limited to one time.
The two-month period referred to in paragraph 2, Article 11, of the Law is calculated beginning from the date of receipt of the application by the central competent authority; provided, where the materials submitted by the enterprise or the information therein are incomplete or deficient in content and the central competent authority has notified the applicant to make supplementation or correction within a specified time, the period shall be calculated from the date of receipt of the supplementation or correction.
Article 10
When approving a merger pursuant to Article 12 of the Law, the central competent authority may prescribe, for a reasonable duration, additional conditions or burdens to ensure that the benefits for the overall economy outweigh the disadvantages resulted from competition restraints.
The additional conditions or burdens made in accordance with the preceding paragraph may not contradict the purposes of the approval, and shall furthermore bear justifiable and reasonable relevance to such purposes.
Article 11
When considered necessary, the central competent authority may publish approvals for mergers in the government gazette.
Article 12
To conduct a concerted action pursuant to the proviso of Article 14 of the Law, an application for approval shall be jointly filed with the central competent authority by all the enterprises participating in such action.
An application for approval of a concerted action by a trade association as referred to in paragraph 3, Article 5 shall be filed with the central competent authority by such trade association.
The applications in the preceding two paragraphs may be made through an attorney-in-fact.
Article 13
An application for approval filed pursuant to the proviso of Article 14 of the Law shall be accompanied by the following documents:
- the names of the goods or services to which the concerted action applies;
- the type of concerted action;
- the implementation period and area of the concerted action;
- the name of the attorney-in-fact, if there is one, and the supporting document;
- other necessary information;
- personal name and residence or domicile of each participating enterprise, or the name of each participating company, sole proprietorship or partnership, trade association, or organization, and the location of office or place of business for each participating enterprise;
- the name and residence or domicile of the representative or administrator, if any, of each enterprise; and
- the scope of business, capital, and turnover in the preceding fiscal year of each participating enterprise.
The form of the application referred to in the preceding paragraph shall be set by the central competent authority.
Article 14
The assessment report on the concerted action referred to in subparagraph 7, paragraph 1, of the preceding article shall specify the following:
Article 15
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 1 or 3, Article 14, of the Law shall set out in detail the anticipated concrete results in cost reduction, quality improvement, increased efficiency, or rationalization of operations.
Article 16
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 2, Article 14, of the Law shall specify the following information:
Article 17
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 4, Article 14, of the Law shall specify the following information:
Article 18
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 5, Article 14, of the Law shall specify the following information:
Article 19
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 6, Article 14, of the Law shall specify the following information:
In addition to those enumerated above, the central competent authority may request the provision of other related materials.
Article 20
The concerted action assessment report accompanying an application filed pursuant to the provisions of subparagraph 7, Article 14, of the Law shall specify the following information:
Article 21
Where the materials submitted with the application for approval of concerted action are incomplete or are deficient in content, the central competent authority may require supplementation or correction of the application within a specified period of time, stating the reasons for such requirement, and may dismiss the application for failure to comply within the specified period.
Supplementation or correction referred to in the preceding paragraph is limited to one time.
Article 22
The identification of a small or medium-sized business as referred to in subparagraph 7, Article 14, of the Law shall be made in accordance with the criteria set forth in the Statute for the Development of Small and Medium-Sized Enterprises.
Article 23
To obtain an extension pursuant to paragraph 2, Article 15, of the Law the enterprises shall file an application with the central competent authority attaching the following materials:
Article 24
The following factors shall be taken into consideration when determining whether a justification exists as referred to in subparagraph 2, Article 19, of the Law:
Article 25
"Limiting" as used in subparagraph 6, Article 19, of the Law refers to tying arrangement, exclusive dealing, restrictions on territory, customers or use, and other restrictions on business activities.
In determining whether the restrictions mentioned in the preceding paragraph are reasonable, the totality of such factors as the intent, purposes, and market position of the parties, the structure of the market to which they belong, the characteristics of the goods, and the impact of carrying out such restrictions on market competition shall be considered.
Article 26
In cases where actions of an enterprise violate the provisions of paragraphs 1 or 3, Article 21, of the Law, the central competent authority may order the enterprise to publish corrective advertisements pursuant to Article 41 of the Law.
The methods, number of appearances, and duration of the advertisements shall be determined by the central competent authority, taking into consideration the degree of impact of the original advertisements.
Article 27
"Participant" as used in paragraph 3, Article 23-1, and paragraph 2, Article 23-2, of the Law means the party to a contract that has been rescinded or terminated, and does not extend to other participants.
Article 28
The central competent authority, when giving notice as prescribed in subparagraph 1, Paragraph 1, Article 27 of the Law, shall do so in writing.
The written notice in the preceding paragraph shall specify the following information:
The notice shall be served no later than 48 hours prior to the date when appearance is required, provided this restriction shall not apply in cases where urgent circumstances exist.
Article 29
A person notified pursuant to the preceding article may retain an attorney-in-fact to appear and make statements on its behalf; provided, when the central competent authority deems necessary, it may give notice requiring appearance in person.
Article 30
Statements made by the person notified pursuant to the provisions of Article 28 shall be recorded into a written Statement, to be signed by the notified person. If the notified person is unable to sign the Statement, he or she may seal or fingerprint it instead; if the notified person refuses to sign, seal, or fingerprint the Statement, such facts shall be recorded.
Article 31
When issuing notice pursuant to subparagraph 2, Paragraph 1, Article 27 of the Law, the central competent authority shall include the following items in writing:
Article 32
The central competent authority shall issue a receipt upon receiving books and records, documents, and other required materials and evidence submitted by relevant agencies, organizations, enterprises, or individuals.
Article 33
When assessing fines in accordance with the Law, all circumstances shall be taken into consideration, and the following items shall be noted:
Article 34
The duration for which an enterprise is ordered to suspend business pursuant to the Law shall be limited to six months each time.
Article 35
These Enforcement Rules shall take effect from the date of announcement.