Public Notice on the Period for Handling Filings for Approval of Concerted Action by Enterprises

Passed by the 183rd Commissioners’ Meeting on April 12, 1995
Article 4 Amended by the 397th Commissioners’ Meeting on June 16, 1999
Promulgated by Order (88) Kung Fa Tzu No. 01877 on July 8, 1999
Article 4 Amended by the 417th Commissioners’ Meeting on November 3, 1999
Promulgated by Order (88) Kung Fa Tzu No. 03182 on November 9, 1999
Whole text and Reporting Forms amended by the 561st Commissioners’ Meeting on August 8, 2002
Promulgated by Order (91) Kung Er Tzu No. 0910007985 on August 16, 2002
 

1. When filing for approval of concerted actions, enterprises shall prepare an application form and two (2) copies of each required attachment set forth in said application form.
2. Application forms and tables shall be printed with A4-sized paper. Applicants shall prepare table of contents and mark page numbers on the bottom left corner of each page. Said documents shall be bound into a book.
    
3. In case of quantity or prices mentioned in the attached documents, the units shall be indicated.
4. Relevant regulations and laws:
   1. Definition of Concerted Action
      
      1. According to Article 7 of the Fair Trade Law, the term "concerted action" means the conduct of any enterprise, by means of contract, agreement or any other form of mutual understanding, with any other competing enterprise, to jointly determine the price of goods or services, or to limit the terms of quantity, technology, products, facilities, trading counterparts, or trading territory with respect to such goods and services, etc., and thereby to restrict each other's business activities.
         The term “concerted action” as used in the preceding paragraph is limited to horizontal concerted action at the same production and/or marketing stage which would affect the market function of production, trade in goods, or supply and demand of services.
         The term "any other form of mutual understanding" as used in Paragraph 1 means other than contract or agreement, a meeting of minds whether legally binding or not which would in effect lead to joint actions.
         By means of its charter, a resolution of a general meeting of members or a board meeting of directors or supervisors, or any other means, to restrict activities of enterprises is also deemed as horizontal concerted action as used in Paragraph 2.
          
      2. According to Article 5 of the Enforcement Rules to the Fair Trade Law, the responsible person of a trade association may be deemed as the actor in concerted action as under Article 7 of the Fair Trade Law.
   2. Prohibition, Exceptional Permit and Approval/Rejection Term of Concerted Action
      According to Article 14(1) of the Fair Trade Law, no enterprise shall have any concerted action; unless the concerted action that meets one of the following requirements is beneficial to the economy as a whole and in the public interest, and the application with the central competent authority for such concerted action has been approved:
      
      1. unifying the specifications or models of goods for the purpose of reducing costs, improving quality, or increasing efficiency;
      2. joint research and development on goods or markets for the purpose of upgrading technology, improving quality, reducing costs, or increasing efficiency;
      3. each developing a separate and specialized area for the purpose of effective operations;
      4. entering into agreements concerning solely the competition in foreign markets for the purpose of securing or promoting exports;
      5. joint acts in regards to the importation of foreign goods for the purpose of strengthening trade;
      6. joint acts limiting the quantity of production and sales, equipment, or prices for the purpose of meeting the demand orderly, while in economic downturn, the market price of products is lower than the average production costs so that the enterprises in a particular industry have difficulty to maintain their business or encounter a situation of overproduction; or
          
      7. joint acts for the purpose of improving operational efficiency or strengthening the competitiveness of small-medium enterprises.
      After receipt of the application referred to in the proviso of the preceding article, the central competent authority shall make a decision of approval or rejection within three (3) months, the period of which may be extended once if necessary.
      According to Article 22 of the Enforcement Rules to the Fair Trade Law, the term “small-medium enterprises” referred to in Article 14(1)(vii) of the Fair Trade Law shall be determined in accordance with the criteria set forth in the Statute for the Development of Small and Medium-Sized Enterprises.
       
   3. Duration, Liability and Modification of Exceptional Permit of Concerted Action
      
      1. According to Article 15 of the Fair Trade Law, the central competent authority may impose conditions or require undertakings in the approval it grants pursuant to the proviso of Article 14(1) of the same law. The approval shall specify a time limit not exceeding three (3) years. The enterprises involved may, with justification, file a written application for an extension thereof with the central competent authority within three (3) months prior to the expiration of such period; provided, however, that the term of each extension shall not exceed three (3) years.
          
      2. According to Article 16 of the Fair Trade Law, after a concerted action is approved, the central competent authority may revoke the approval, modify the contents of the approval, or order the enterprises involved to cease from continuing the conduct or rectify its conduct, or to take necessary corrective actions if the cause for approval no longer exists, the economic condition changes, or the enterprises involved engage in any conduct beyond the scope of approval.
   4. Regulations Governing Applicants for Concerted Action
      According to Article 13 of the Enforcement Rules to the Fair Trade Law, an application for approval of concerted action filed pursuant to the proviso of Article 14(1) of the Fair Trade Law shall be jointly filed with the central competent authority by all the enterprises participating in such action.In the event that the applications are filed by a trade association or an agent, the identification paper of such a trade association/agent shall be submitted as well.
       
   5. Documents Required for Applications for Approval of Concerted Action
      An application for approval pursuant to the proviso of Article 14(1) of the Fair Trade Law shall be accompanied by the following documents:
      
      1. an application form that sets forth the following:
         
         1. the names of the goods or services to which the concerted action applies;
         2. the type of concerted action;
         3. the implementation period and area of the concerted action;
         4. the name of the attorney-in-fact, if any, and the supporting document therefor; and
             
         5. other required information.
      2. the contract, agreement or other document evidencing agreement to the concerted action;
      3. the concrete substance and implementation methods of the concerted action;
      4. basic data on the participating enterprises:
         
         1. the name and residence or domicile of each participating enterprise, or the name and the location of the office or place of business of each participating company, sole proprietorship, partnership, or association;
         2. the name and residence or domicile of the representative or administrator, if any, of each enterprise; and
             
         3. the business items, capital, and turnover in the preceding fiscal year of each participating enterprise.
      5. quarterly reports for the past two (2) years on the prices and production and sales values (volumes) of those products or services relevant to the concerted action, of each participating enterprise;
      6. financial statement and operating report of each participating enterprise for the preceding fiscal year;
      7. information of the market structure relating to horizontal competition and upstream and downstream enterprises of the participating enterprises;
      8. an assessment report on the concerted action; and
          
      9. other documents as specified by the central competent authority.
         The format of the application referred to in the preceding paragraph shall be decided by the central competent authority.
         The “financial statement and operating report” of each participating enterprise for the preceding fiscal year set forth in the preceding Paragraph 6 may be replaced with the “balance sheet and income statement.”
   6. Contents of Assessment Report on Concerted Action
      
      1. According to Article 15 of the Enforcement Rules to the Fair Trade Law, the assessment report on the concerted action shall specify the following:
         
         1. cost structure before and after the concerted action and analytical data on forecasted changes;
         2. the impact of the concerted action on enterprises not participating;
         3. the impact of the concerted action on the structure, supply and demand, and pricing of the relevant market;
         4. the impact of the concerted action on upstream and downstream enterprises and their markets;
         5. concrete benefits and detrimental effects of the concerted action for the overall economy and public interest; and
             
         6. other required information.
      2. Moreover, according to Article 16 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application for approval filed pursuant to the provisions of Article 14(1)(i) or (iii) of the Fair Trade Law shall include a concerted action assessment report that sets out in detail the anticipated concrete results in cost reduction, quality improvement, increased efficiency, or effectiveness of operations
          
      3. Additionally, according to Article 17 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application for approval filed pursuant to the provisions of Article 14(1)(ii) of the Fair Trade Law shall specify the following information:
         
         1. the difference between the funding required for individual research and development and that required for joint research and development; and
             
         2. the anticipated concrete results in technology upgrading, quality improvement, cost reduction, or increased efficiency.
      4. Also, according to Article 18 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application for approval filed pursuant to the provisions of Article 14(1)(iv) of the Fair Trade Law shall specify the following information:
         
         1. the export value (volume) of each participating enterprise for the most recent one-year period, the percentage of the total export value (volume) of the same product for which it accounts, and the enterprise’s ratio of exports to domestic sales; and
             
         2. the anticipated efficacy in promoting exports.
      5. Furthermore, according to Article 19 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application filed pursuant to the provisions of Article 14(1)(v) of the Law shall specify the following information:
         
         1. the export value (volume) of each participating enterprise for the most recent three (3) years;
         2. a comparison of the costs required for import by the individual enterprises versus those required for concerted import; and
             
         3. the anticipated results in strengthening trade.
      6. According to Article 20 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application for approval filed pursuant to the provisions of Article 14(1)(vi) of the Fair Trade Law shall specify the following information:
         
         1. a monthly comparative breakdown for the preceding three (3) years of the average fixed costs, average variable costs, and pricing of specified goods of each participating enterprise;
         2. a monthly breakdown for the preceding three (3) years of production capacity, equipment utilization rate, production and sales value (volume), import/export value (volume) and inventory levels of each participating enterprise;
         3. changes in the number of businesses in the relevant industry over the preceding three (3) years;
         4. market prospects for the relevant industry;
         5. adopted or contemplated self-help methods, other than concerted action, to turn around the business; and
             
         6. anticipated results of the concerted action.

      In addition to that enumerated above, the central competent authority may request the submission of other related information.

      7. According to Article 21 of the Enforcement Rules to the Fair Trade Law, the concerted action assessment report accompanying an application for approval filed pursuant to the provisions of Article 14(1)(vii), of the Law shall specify the following information:
         
         1. information to show meeting the criteria to be recognized as a small or medium-sized enterprise; and
             
         2. anticipated results in achieving improved operational efficiency or strengthened competitiveness.
   7. Review of Applications for Concerted Action
      According to Article 23 of the Enforcement Rules to the Fair Trade Law, where an enterprise applies for approval of concerted action pursuant to Article 14(1) submits information that is incomplete, the central competent authority may issue notice to require supplementation or correction of the application within a specified period of time with reasons. If such supplementation is not made within the specified time period or is so made but the submitted information remains incomplete, the application will be rejected. Supplementation or correction referred to in the preceding paragraph may be made only once. Additionally, according to Article 24 of the Enforcement Rules to the Fair Trade Law, the three-month period specified in Article 14(2) of the Fair Trade Law shall start from the following day of the date on which the central competent authority receives the application. However, where the information submitted by the enterprise are incomplete and the central competent authority has issued a notice to require supplementation within a specified time, the period shall start from the following day of the date on which the central competent authority receives the supplementation.
       
   8. Penalty
      
      1. According to Article 35(1) of the Fair Trade Law, if any enterprise violating the provisions of Article 10, 14, or 20(1) is ordered by the central competent authority pursuant to Article 41 to cease therefrom, rectify its conduct, or take necessary corrective action within the time prescribed in the order, and after the lapse of such period, shall such enterprise fail to cease therefrom, rectify such conduct, or take any necessary corrective action, or after its ceasing therefrom, shall such enterprise have the same or similar violation again, the actor shall be punished by imprisonment for not more than three (3) years or detention, or by a fine of not more than one hundred million New Taiwan Dollars (NT$100,000,000), or by both.
          
      2. According to Article 41 of the Fair Trade Law, the Fair Trade Commission may order any enterprise that violates any of the provisions of this Law to cease therefrom, rectify its conduct or take necessary corrective action within the time prescribed in the order; in addition, it may impose upon such enterprise an administrative fine of not less than fifty thousand New Taiwan Dollars (NT$50,000) nor more than twenty-five million New Taiwan Dollars (NT$25,000,000). Shall such enterprise fails to cease therefrom, rectify the conduct or take any necessary corrective action after the lapse of the prescribed period, the Fair Trade Commission may continue to order such enterprise to cease therefrom, rectify the conduct or take any necessary corrective action within the time prescribed in the order, and each time may successively impose thereupon an administrative fine of not less than one hundred thousand New Taiwan Dollars (NT$100,000) nor more than fifty million New Taiwan Dollars (NT$50,000,000) until its ceasing therefrom, rectifying its conduct or taking the necessary corrective action.