This chapter covers key dimensions of competition law enforcement, including anti-competitive agreements and abuse of dominance, enforcement powers, merger control, as well as judicial review and private enforcement.
OECD Peer Reviews of Competition Law and Policy: Thailand
Abstract
The TCA covers the traditional areas of competition law. This includes anti-competitive behaviour (including both anti-competitive agreements and abuse of dominance) and merger control.
Violations of competition law can be either a criminal or an administrative infringement in Thailand. Hard-core cartels and abuse of dominance are exclusively subject to a criminal procedure, while other anti‑competitive agreements,1 as well as violations to the merger review system, are under an administrative regime.
Criminalisation of competition infringements in most jurisdictions is typically limited to hard-core cartels, which are considered the most egregious violations of competition law, as recognised in the OECD Recommendation concerning Effective Action against Hard Core Cartels (OECD, 2019[17]). In some jurisdictions, criminalisation is further restricted to bid rigging conduct. Abuse of dominance is generally not criminalised. In most regimes (especially of civil law as Thailand), in addition to a crime, cartels also constitute an administrative infringement that can be sanctioned by competition authorities (rather than courts). Indeed, criminal sanctions (particularly sanctions against individuals) for hard-core cartels are generally seen as complementary – and not a substitute – for pecuniary sanctions imposed against companies. This is because proving a breach to a criminal standard requires an extremely high standard of proof (“beyond any reasonable doubt”), which makes it very hard to ever prove a case (OECD, 2020[18]).
Competition enforcement is still very incipient in Thailand, despite a competition law being in place for over 25 years. While the OECD was unable to obtain consistent information on the total number of cases in which the TCCT has concluded for the existence of an infringement, the number is very low. Furthermore, all such cases were settled without pursuing criminal prosecution. In addition, the TCCT assessed only 12 mergers in which it could intervene (i.e. by approving the transactions subject to remedies or blocking them) and imposed behavioural remedies in three of these cases.
The TCA prohibits joint actions between business operators that monopolise, reduce or restrict competition in a relevant market.2 Collusive action can result from: (i) an agreement between business operators, legally enforceable or non-binding, written or verbal; (ii) a decision made by an association or business operators; or (iii) a collusive action without a specific agreement or decision, in which business operators are nonetheless aware that they are acting in concert.3
Joint actions between business operators are categorised into hard-core cartels (Section 54) and other agreements (Sections 55 and 58 of the TCA). Hard-core cartels are subject to a criminal regime, while other agreements are subject to an administrative regime. Nevertheless, neither the TCA nor TCCT’s internal regulations differentiate the methodology for assessing anti-competitive agreements. In fact, when examining potential anti-competitive agreements, the TCCT must determine that such behaviour reduces4 or restricts5 competition. This assessment is only carried out when the total market share of the business operators involved in the agreement exceeds 10%, which means that agreements between business operators with a combined market share of less than 10% are de facto exempted.6 Therefore, anti-competitive agreements, including hard-core cartels, are assessed under the rule of reason in Thailand. The combination of an exclusive criminal regime and a rule of reason approach, even for hard-core cartels, makes enforcing competition law in Thailand extremely challenging, as further discussed below.
During the OECD fact-finding mission, stakeholders mentioned that in all investigations involving anti-competitive agreements, including hard-core cartels, the TCCT must first determine the relevant market (see section 2.2.1) to assess whether the business operators hold a market share of over 10%. This is resource-intensive for the staff working on investigations and can take a considerable amount of time. Additionally, exempting hard-core cartels between firms with a combined market share of less than 10% departs from OECD standards. While many jurisdictions have a de minimis rule for agreements, this exemption is not applicable to hard-core cartels.
In all OECD Members, hard-core cartels are considered per se infringements. This means that due to the presumed negative effects of hard-core cartels, there is no need to examine their effects on the market, but only to establish whether such conducts have taken place. The OECD Recommendation concerning Effective Action against Hard Core Cartels (OECD, 2019[17]) recognises that hard-core cartels are the most egregious violations of competition law and recommends that such practices are made illegal “regardless of the existence of proof of actual adverse effects on markets”.
2.1.1. Hard-core cartels
Section 54 of the TCA specifies four types of agreements between competitors that substantially harm competition (hard-core cartels), covering:7
Directly or indirectly fixing prices of products or services, or other trading conditions that affect prices (price-fixing)
Limiting output of products or services, by specifying outputs, determining a proportion of outputs or allocating quotas (output restrictions)
Colluding in an auction or price competition in the procurement of products or services to ensure that a business operator will win such the tender or to prevent a business operator from participating in it (bid rigging)
Allocating geographic areas or assigning suppliers or customers to each business operator (market allocation).
These practices are not illegal if they are taken by business operators under a single economic entity, where there is no competition among them.8
Hard-core cartels are subject to criminal sanctions of imprisonment for up to two years and/or a fine of up to 10% of the turnover for the year in which the offence has occurred.9
While the OECD was unable to obtain consistent information on the total number of successful hard-core cartel cases in Thailand, the number is very low. At the time of writing, publicly available sources indicated only two successful hard-core cartel cases, both in the ice market, although it was not possible to confirm whether and to what extent they overlap, as the summary of the decisions do not provide relevant information, such as the name of the parties involved.10 In these cases, the investigated parties settled before judicial prosecution, following a proposal by the TCCT, which has the power to settle cases, as further discussed in section 2.4.3.
2.1.2. Bid rigging in public procurement
As mentioned above, Section 54 of the TCA includes bid rigging as a hard-core cartel: collusion in an auction or price competition in the procurement of products or services to ensure that a business operator will win such the tender or to prevent a business operator from participating in it.
Bid rigging in public procurement is also governed by specific legislation,11 whose provisions are enforced by the National Anti-Corruption Commission (NACC). The NACC is an independent agency created in 1999 and is in charge of preventing and combating corruption in Thai government agencies, including bid rigging.
Section 4 of the Act on Offences Relating to the Submission of Bids to State Agencies prohibits any person from submitting bids in collusion with others to secure a contract with the state by avoiding fair competition, creating barriers for other bidders or gaining an undue advantage over the state in a manner inconsistent with normal business practices. Violations of this provision are subject to criminal sanctions, namely imprisonment for up to three years and a fine of 50% of the highest bid price submitted by the joint violators or the value of the contract awarded, whichever is greater.
The existence of both legislations suggests that the TCCT and the NACC can operate in parallel, with the TCCT enforcing Section 54 of the TCA and the NACC enforcing Section 4 of the Act on Offences Relating to the Submission of Bids to State Agencies. Indeed, each provision addresses a different legal interest (i.e. competition and integrity of public procurement, respectively). This is further supported by the fact that bid rigging in public procurement is not exempted from the TCA under Section 4 of the law.
Nevertheless, the prevailing interpretation by both the TCCT and the NACC is that the Act on Offences Relating to the Submission of Bids to State Agencies prevails over the TCA, removing bid rigging in public procurement from the scope of the TCCT’s jurisdiction and placing it under the jurisdiction of the NACC. This was confirmed during the OECD fact-finding mission. Stakeholders mentioned that the TCCT considers itself not competent to investigate business conducts aimed at limiting competition in public procurement processes. If the TCCT becomes aware of any potential bid rigging behaviour, it must forward the case to the NACC, which will then conduct the investigation. Should the NACC find sufficient evidence of illegal practices at the conclusion of its investigation, the case will be referred to public prosecutors for criminal prosecution in court.
However, this approach conflicts with the existing legislation – particularly Section 54 of the TCA – meaning that in practice bid rigging in public procurement is not considered a competition infringement in Thailand, but only an anti-corruption violation. Furthermore, this may result in bid rigging facing no sanctions at all in cases where public officials are not involved, as it remains unclear whether the NACC would have the authority to investigate in such circumstances.
Moreover, competition enforcement and the fight against corruption are typically pursued under separate legal frameworks (OECD, 2010[19]), despite their complementary nature and the fact that co-operation between these two policy communities is encouraged. Indeed, the OECD Recommendation on Fighting Bid Rigging in Public Procurement (OECD, 2023[20]) recognises that bid rigging is among the most egregious violations of competition law and that “collusion and corruption are distinct problems that affect public procurement, yet they may occur together and reinforce or facilitate each other”.
While the OECD was unable to obtain consistent information on the total number of bid rigging cases in Thailand, the number is very low (if any).
2.1.3. Other anti-competitive agreements
Besides hard-core cartels, Section 55 of the TCA also prohibits agreements between business operators, either in the same relevant market (horizontal agreements) or in different relevant markets (vertical agreements), that monopolises, reduces or restricts competition in one of the following ways:12
Fix prices, restrict outputs or allocate markets between business operators at different relevant markets
Reduce quality of products or services
Assign an exclusive distributor of products or services in the same relevant market
Set conditions on the sale or purchase of products of services
Enter into any other joint agreements as prescribed by the TCCT in its internal regulations (although this has not yet happened in practice).
Apart from the first item mentioned above, the TCA does not specify which practices concern horizontal and/or horizontal agreements. This may cause confusion, for instance as regards agreements to reduce quality of products or services, which are considered hard-core cartels in other jurisdictions when they involve direct competitors.
The agreements abovementioned are assessed under the rule of reason. According to Section 56 of the TCA, they will not be considered illegal if they (i) aim at developing production or distribution, or promoting technical or economic progress; or (ii) involve licensing-type arrangements (such as franchise and authorised dealer agreements), provided that they (a) are not be more restrictive than necessary to achieve their purposes; (b) do not result in a monopoly or substantially restrict competition in a relevant market; and (c) benefit consumers in terms of price, quality, quantity and product or service alternatives.13 Likewise, agreements taken by business operators under a single economic entity, where there is no competition among them, are also not covered by the prohibition under Section 55 of the TCA.
The potential anti-competitive practices listed in Section 55 of the TCA constitute an exhaustive list, meaning that other agreements not expressly mentioned cannot be sanctioned, even if they result in anti-competitive effects. Although the TCA allows the TCCT to issue internal regulations including additional potential illegal conducts, this cannot be done case-by-case. So far, the TCCT has not yet issued any regulations in this regard.
Unlike Thailand, in most jurisdictions legislation provides a non-exhaustive list of anti-competitive practices, meaning that conducts not explicitly listed can be considered illegal if they restrict competition. In other words, the focus of competition authorities is on the anti-competitive effects of the agreements rather than their form.
The justifications listed in Section 56 of the TCA that make an agreement legal seem consistent with international standards, since they apply only to agreements other than hard-core cartels, which are typically assessed under the rule of reason. In other words, to sanction a particular practice, the TCCT must demonstrate that its negative effects on the market and consumers outweigh its pro-competitive effects, in particular economic efficiencies.
Section 58 of the TCA introduces another type of anti-competitive agreement, i.e. arrangements between local and foreign business operators that result in a monopoly or unfair trade restriction and cause significant harm to the Thai economy and consumers. Nevertheless, as mentioned in section 1.3.2 above, the TCCT only investigates such practices if the foreign players are established in Thailand.
Anti-competitive agreements other than hard-core cartels are subject to an administrative fine of up to 10% of the turnover for the year in which the offence has occurred.14
At the time of writing, no cases under Sections 55 or 58 of the TCA had been sanctioned by the TCCT. The OECD was unable to obtain consistent information on whether the TCCT has ever opened an investigation under these provisions.
Section 50 of the TCA establishes the legal framework on abuse of dominant position in Thailand. It prohibits a business operator from abusing its dominant position by engaging in any of the following practices:
Setting unfair purchase or sale prices of products or services
Imposing unfair conditions on trading partners that limit (i) services, or the production, purchase or sale of products; (ii) the opportunity to purchase or sell products, receive or provide services, or obtain credit from other business operators
Suspending, reducing or limiting service provision, production, sale, delivery or importation without justifiable reasons, or destroying or damaging products to reduce output below market demand
Intervening in another business operations without justifiable reasons.
To assess whether a business operator has abused its dominant position, it is necessary first to define the relevant market, then determine whether the operator holds a dominant position, and finally establish whether it has abused that position.
Unlike in most jurisdictions, abuse of dominance constitutes a criminal infringement in Thailand, subject to imprisonment for up to two years and/or a fine of up to 10% of the turnover for the year in which the offence has occurred.15
2.2.1. Market definition
According to the TCA and TCCT’s internal regulations, relevant markets are determined based on the concept of substitutability of products or services, both in terms of their characteristics (product dimension) and the geographic area where they are offered (geographic dimension). Defining relevant markets aims at identifying the boundaries within which business operators compete.16
To define relevant markets, the TCCT must consider three elements cumulatively: (i) demand substitutability, (ii) supply substitutability, and (iii) potential competition.17
Demand substitutability assesses consumers’ perceptions of the extent to which products or services are interchangeable or substitutable based on their characteristics, prices or intended uses, and geographic areas. Evaluating demand substitutability requires analysing detailed information from multiple sources, such as historical data, quantitative and qualitative tests (e.g. price elasticity of demand, cross elasticity of demand and price series analysis), data gathering or interviews with trading partners, consumers and competitors, as well as regulatory and non-regulatory barriers to substituting products or services. The hypothetical monopolist test (SSNIP test) can also be used.18
The assessment of supply substitutability seeks to determine whether producers or distributors of a specific product or service can switch to producing or selling related products or services without incurring significant cost or risk increases following a price change.19
Finally, the TCCT must also consider potential competition, taking into account all possible factors and circumstances that may affect entry into a relevant market, including competitive constraints and the level of competition in the market in question.20
Competition authorities typically consider potential competition when assessing the existence of a dominant position or its effects on competition (for instance whether the conduct results in a loss of potential competition) rather than when defining relevant markets (OECD, 2021[21]).
The OECD was unable to assess how these provisions are applied by the TCCT and therefore how relevant markets are defined in practice, as decisions are not publicly available and were not shared with the team.
2.2.2. Dominant position
Pursuant to Section 5, paragraph 7, of the TCA, a business operator is considered to hold a dominant position if it exceeds the market share and sales revenue thresholds set by the TCCT, also taking into account competition conditions and dynamics, such as the number of business operators in the market and their amount of capital, access to essential production factors, distribution channels and business operation networks, necessary infrastructure for conducting business and government regulations.
This provision was supplemented by a TCCT internal regulation, which states that a business operator is considered to hold a dominant position when:
It has a market share of over 50% in a relevant market in the preceding year and its sales revenue exceeds THB 1 billion (EUR 26.24 million approximately)21 or
It is among the three largest business operators in a relevant market with a combined market share of over 75%, has sales revenue exceeding THB 1 billion (EUR 26.24 million approximately) and has a market share of over 10% in the preceding year.22
For the purpose of this assessment, the market shares and sales revenues of all business operators under a single economic entity operating in the same relevant market should be considered.23 Furthermore, the assessment of each business operator’s market share in a relevant market is calculated as a percentage based on quantity sold, sales revenue, quantity produced or production capacity.24
The TCA also provides that the market share and sales revenue thresholds set by the TCCT should be reviewed at least once every three years.25 However, this has not occurred since the TCCT issued its Notice on Criteria for being an Undertaking with Dominant Position in 2020.
To determine whether a business operator holds a dominant position, the TCCT relies solely on the market share and sales revenue thresholds mentioned above, without considering other competition conditions as prescribed by Section 5 of the TCA. Indeed, the thresholds mentioned above seem to establish irrebuttable presumptions of dominance.
In many jurisdictions, a market share threshold is set below which dominance is considered unlikely.26 Nevertheless, market shares are typically used just as a first step to determine a dominance position, being complemented by a case-by-case assessment of other market conditions and dynamics, such as the potential entry of newcomers and the growth of existing competitors, countervailing purchasing power, alternative sources of supply and entry barriers (OECD, 2021[22]).
In fact, assessing whether a firm holds a dominant position requires a case-by-case analysis that considers the characteristics of each market and the factors that may lead to market power. This is also why it is not common to establish revenue-based thresholds to determine market dominance, as markets vary substantially, making it impossible to set a level that would be reasonable across all industries.
During the OECD fact-finding mission, stakeholders expressed concerns about the criteria used by the TCCT to determine whether a market player holds a dominant position. According to them, these criteria may fail to capture several business operators that would indeed hold a dominant position in the market.
2.2.3. Abusive behaviour
Holding a dominant position is not in itself a violation of competition law. In order for a business operator with a dominant position to engage in anti-competitive behaviour, it must abuse its position. Thus, to establish an abuse of dominance, the TCCT must identify the specific unilateral behaviour, as described in Section 50 of the TCA (and supplemented by a TCCT internal regulation),27 as well as demonstrate it is unfair or unreasonable.
Section 50 of the TCA provides an exhaustive list of abusive practices, with broad descriptions that cover unilateral conduct typically addressed by competition authorities worldwide. The internal regulation on abuse of dominance issued by the TCCT corroborates this view, by listing several conducts that can be considered a competition infringement. This includes both exploitative and exclusionary practices, such as predatory pricing, price discrimination, margin squeeze, excessive pricing, discount schemes, exclusive dealing, quantity forcing, tying, resale price maintenance and refusal to supply.28 Nevertheless, abusive practices not included in the list under Section 50 of the TCA and the TCCT’s internal regulation will not be considered illegal, even if they impact competition. In contrast to Thailand, legislation in other jurisdictions typically focuses on the anti-competitive effects of conduct rather than its form, providing only a non-exhaustive list of potential abusive behaviour.
To be considered illegal, the practices mentioned above must be unfair or unreasonable. In this regard, the TCCT must evaluate the following elements cumulatively: (i) the behaviour constitutes a new practice that deviates from standard business operations; (ii) the conditions imposed on trading partners were not documented in writing and were not communicated in advance in accordance with normal trade practices; (iii) the practice cannot be justified on reasonable grounds in terms of business, marketing or economic rationale; and (iv) other relevant factors.29
In Thailand, the assessment of abuse of dominance focuses on whether the behaviour is unfair or unreasonable, rather than evaluating its impact on competition. In this context, elements not taken into account in other jurisdictions when assessing abuse of dominance are considered in Thailand, for instance whether the behaviour constitutes a new practice that deviates from standard business operations and whether the conditions imposed on trading partners were not documented in writing and were not communicated in advance. The TCCT’s internal regulation also mentions that other relevant factors may be taken into account in the assessment without specifying which factors, potentially creating legal uncertainty.
In most jurisdictions, abuse of dominance is assessed under the rule of reason, i.e. the competition authority must first demonstrate the (potential or actual) anti-competitive effects of the unilateral conduct (especially in terms of its ability to exclude competitors or affect the competitive process) and then evaluate whether there are legitimate justifications or efficiencies.
Moreover, proving abuse of dominance is particularly challenging in Thailand as, unlike in other jurisdictions, the conduct is assessed under a criminal regime, which requires a higher standard of proof (i.e. the abusive behaviour must be proven beyond a reasonable doubt), as discussed in section 2.3.3.
While the OECD was unable to obtain consistent information on the total number of successful abuse of dominance cases in Thailand, the number is very low. At the time of writing, publicly available sources indicated only one successful case in 2019, which was settled by the TCCT.30
2.3.1. Detection
In Thailand, the main method for detecting anti-competitive behaviour and initiating formal investigations is through complaints.
Complaints can be submitted by anyone who has been harmed by a competition infringement or by anyone who has observed such an infringement, including government officials and members of the TCC. Complaints must be submitted to the TCCT’s Office, either in writing (in person or by post), orally (in person or by telephone) or through the TCCT’s website. Complaints must include the following elements: (i) the name and contact address of the complainant; (ii) the name and address of the alleged infringers, if known; (iii) the facts and evidence regarding the alleged infringement; (iv) when and where the alleged infringement took place; (v) the damages incurred, if any; and (vi) the complainant’s signature, in the case of a written complaint.31
The Office must assess a complaint within 30 days of its receipt and propose a recommendation to the TCC. During this period, the Investigation Unit may request the complainant to amend the complaint (if any required elements are missing) and/or provide further clarification or additional documents. The Investigation Unit may also conduct a preliminary investigation to gather evidence related to the alleged infringement.32 At this stage, for each complaint the Investigation Unit must also define the relevant market and assess the market shares of the concerned business operators. This is because to investigate anti‑competitive agreements (including hard-core cartels) the business operators must hold at least 10% of the market share in a relevant market. Similarly, determining whether a player is dominant relies on its market shares.33 The TCCT has not the power to reject complaints based on priority grounds and must investigate, at least preliminary, all the complaints received.
Upon completing its assessment, the Investigation Unit must submit a report to the Secretary‑General, with a summary of the facts, the relevant legal provisions and whether the complaint should be accepted (if there are sufficient grounds for an investigation) or rejected (if there are insufficient grounds or if the alleged infringement falls outside the TCCT’s jurisdiction).34 The Secretary-General will then present a recommendation to the TCC, which will decide whether to initiate a formal investigation. The TCC may request the Office to conduct an additional preliminary investigation before deciding whether to open a formal investigation. If the TCC dismisses the complaint, the complainant must be notified.35
The 30-day period that the Office has for assessing complaints can be extended an unlimited number of times by the Secretary-General. During the OECD fact-finding mission, stakeholders mentioned that such extensions are common in practice, in particular because defining relevant markets may be highly complex and time-consuming (sometimes taking longer than a year).36
Anonymous complaints are not possible, as the identification of the complainant is a required element of a complaint. However, during the fact-finding mission, TCCT staff interviewed by the OECD indicated that if the complainants do not identify themselves, the complaint will not be formally admitted, but the relevant information will be handled outside the context of a formal complaint.
Furthermore, contrary to TCCT’s internal regulation, TCCT staff interviewed during the OECD fact-finding mission mentioned that only business operators or trade entities can submit a complaint. If others, such as consumers or current or former employees, submit a complaint, it will be rejected by the TCCT, which may still use the information provided outside the context of a formal complaint.
Preventing consumers from presenting a complaint excludes important stakeholders from the detection process. Most jurisdictions accept complaints from the general public who may suspect of anti-competitive practices (ICN, 2021[23]).
Thailand does not have a leniency programme or a whistle-blowing programme.
The fact that anonymous complaints are not formally accepted may prevent those aware of an infringement (e.g. current or former employees) to report it for fear of retaliation, such as firing or blacklisting from the industry. According to the OECD Recommendation concerning Effective Action against Hard Core Cartels (OECD, 2019[17]), jurisdictions should facilitate “the reporting of information on cartels by whistle-blowers who are not leniency applicants, providing appropriate safeguards protecting the anonymity of the informants”.
Furthermore, an increasing number of jurisdictions – including all OECD members and beyond – have a leniency programme in place today, which has often been a powerful detection tool (OECD, 2019[24]). In this context, the OECD Recommendation concerning Effective Action against Hard Core Cartels (OECD, 2019[17]) calls for jurisdictions to “implement an effective cartel detection system by: a. introducing effective leniency programmes which: i. Set incentives for self-reporting by providing total immunity to the first applicant that reports its cartel conduct and fully co-operates with the competition authority and sanction reductions for subsequent applicants (…)”.
In parallel of introducing a leniency programme, competition authorities should ensure that there is a high risk of detection and significant sanctions, which are prerequisites for an effective leniency programme. Indeed, leniency will generally work well if the relevant competition authority has built up an enforcement record and if cartel members perceive a genuine risk that competition authorities might detect and establish a cartel infringement, even without recourse to a leniency programme. A functioning leniency programme also depends on whether the sanctions for those cartel members (both individuals and companies) that do not qualify for leniency are significant (OECD, 2023[25]).
Finally, there are no clear rules regarding ex officio investigations and the use of proactive detection methods, such as cartel screenings or industry monitoring (e.g. press and internet). Nevertheless, TCCT staff confirmed that ex officio investigations are possible, also requiring submission of a report to the TCC, which will then decide whether to open a formal investigation. Invalid complaints (including anonymous ones) can also be used in this context.
The use of reactive detection tools in Thailand is still very incipient due to the limited resources, both material (e.g. technological devices) and human. While the OECD was unable to obtain consistent information on the number of cases opened ex officio by the TCCT, the number is very low.
2.3.2. Investigation
When the TCC decides to open a formal investigation, it must determine whether it relates to a criminal or an administrative offence.37 This decision is based on whether the facts under investigation fall under a criminal (i.e. hard-core cartels and abuse of dominance) or an administrative (agreements other than hard-core cartels and unfair trade practices) infringement.
If the case involves a criminal infringement (or both criminal and administrative infringements), the investigation is conducted by a sub-committee of inquiry and follows TCCT’s internal regulations, supplemented by the Criminal Procedure Code.38 The TCC must appoint a sub-committee of inquiry, composed of at least one TCCT official (typically from the Investigation Unit) and persons outside the TCCT, as described in section 1.4.1. There are no formal criteria for appointing the members of the sub-committee of inquiry, leaving the TCC with discretionary powers in this matter. The investigated parties and the complainant (if any) must be notified of sub-committee’s appointment and may challenge any of its members for lack of impartiality, with the final decision resting with the TCC.39
If the case involves only an administrative infringement, the investigation follows TCCT’s internal regulations, supplemented by legal provisions on administrative procedure.40 For complex cases, the investigation is conducted by a sub-committee of inquiry, appointed by the TCC, following the procedure mentioned in the paragraph above. Simple cases are assigned to the Secretary-General, who must appoint at least two officials from the Office (typically from the Investigations Unit) to conduct the investigations.41 There is no specific guidance to determine whether a case is classified as complex and simple, and in practice the TCC has the discretion to decide whether a case is complex or not.
The sub-committee of inquiry or the Office will conduct the investigations, having various powers (such as to take statements, request information and conduct dawn raids) to collect evidence to determine whether the investigated parties are guilty or not, as described below.42
Criminal investigations must be completed within 12 months from the date the TCC appoints the sub-committee of inquiry, but the TCC can authorise an extension of up to six months in case of justified necessity.43
Administrative investigations must be completed within 120 days for simple cases and 180 days for complex cases. However, the TCC can authorise an extension of 30 days, which must be justified and may be granted twice.44
During the OECD fact-finding mission, stakeholders mentioned that despite the legal deadlines for investigations conducted by the sub-committees of inquiry are often very lengthy, particularly because some of their members are not TCCT staff and have other commitments, making it difficult to co-ordinate their schedules. This departs from the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), which recommends that jurisdictions should
ensure that competition law enforcement is timely, by: a) concluding competition law enforcement in a reasonable time, taking into account the nature and complexity of the case and the efficient use of the resources of the competition authority; b) establishing and following statutory rules or competition authority guidelines or setting internal targets, as appropriate, for the deadlines or length of procedural steps, taking into account the nature and the complexity of the case (…)
The investigated parties must be formally informed of the charges against them, and given the opportunity to present their defence within 15 days, although the investigation team may grant a time extension on a case-by-case basis.45
TCCT’s internal regulations do not specify when the investigated parties must be notified or what the notification must contain. During the OECD fact-finding mission, stakeholders mentioned that there is no standard procedure, and each sub-committee of inquiry (or officials in simple administrative investigations) proceeds differently. While some sub-committees’ issue notifications detailed enough to allow parties to understand the circumstances and facts that led to the claim, others provide very limited information. For example, some stakeholders indicated that investigated parties sometimes lack access to how the sub-committee has defined the relevant market, which may be essential for presenting a substantial defence.
This also contradicts the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), which calls adherents to
inform parties and offer them opportunities to engage meaningfully in the competition law enforcement process, with due regard to the effectiveness of the investigation, by: a) ensuring that parties are notified in writing as soon as feasible and legally permissible that an investigation has been opened and of its legal basis and subject matter, to the extent that this does not undermine the effectiveness of the investigation; b) explaining to the parties, as soon as reasonably possible and appropriate during the competition law enforcement process, the factual and legal basis, competition concerns, and the status of the investigation; (…) e) providing parties with meaningful opportunities at key stages to discuss with the competition authority the investigation’s facts, progress, and procedural steps, as well as relevant legal and economic reasoning; f) offering parties the opportunity to present an adequate defence before a final decision is made. This should include: i. informing parties of all allegations against them and granting them access to the relevant evidence collected by or submitted to the competition authority or court, subject to the protection of confidential and privileged information; and ii. providing parties a meaningful opportunity to present a full response to the allegations and submit evidence in support of their arguments before the key decision makers.
Upon completing the investigation, the sub-committee of inquiry (or the Secretary-General) submits a report to the TCC detailing the legal and factual findings to justify its conclusion on whether the investigated parties should be sanctioned. In cases of criminal infringements, the report must indicate whether it is appropriate to settle or to proceed with a criminal lawsuit. For cases involving administrative infringements, the report must recommend the sanctions to be imposed.46 The TCC may request additional investigations to be conducted, either by the same sub-committee (or by the Secretary-General) or by a newly appointed sub-committee.47
In criminal cases, if the TCC concludes there is sufficient evidence of the investigated practices, it may choose to settle (as further discussed in section 2.4.3) or to proceed with criminal prosecution. In the latter case, the file is handled over to the public prosecutors to file a criminal lawsuit. If the public prosecutors disagree with the TCC’s conclusion and issue a non-prosecution order, the TCC’s Chairperson may appeal to the Attorney-General. If the Attorney-General determines that the case is sufficiently complete to proceed, he/she issues a prosecution order. Otherwise, the TCC’s Chairperson and the Attorney-General must establish a joint working group to conduct further investigations and gather additional evidence to complete the case, enabling the Attorney-General to issue a prosecution order.48 At the time of writing, these procedures have never been applied in practice.
The OECD was also unable to obtain consistent information on the number of ongoing investigations conducted by the TCCT, nor the number of investigations closed due to a lack of evidence.
According to Section 76 of the TCA, confidential information, particularly commercial sensitive information, obtained during investigations shall be preserved under penalty of imprisonment for up to one year and/or a fine of up to THB 100 000 (approximately EUR 2 600). However, there is no guidance on which business information should be considered confidential. This departs from the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), according to which jurisdictions should have “rules, policies or guidance regarding the identification and treatment of confidential information”. The Recommendation also calls adherents to “protect confidential and privileged information (…) by: a) ensuring that competition authorities appropriately protect against unlawful disclosure of confidential information in their possession (…)”.
Dawn raids
The TCA allows the TCCT to conduct unannounced inspections and searches (dawn raids) at the premises of business operators or other entities to collect all documents and information needed to prove an anti-competitive behaviour.49 To conduct dawn raids, the TCCT must obtain a prior judicial order. The relevant court has the discretion to deny a search warrant if it deems there is no sufficient grounds. However, a search warrant is not necessary in urgent cases, where obtaining a judicial order would risk the removal, destruction, or alteration of evidence.50 In both cases, the Criminal Procedure Code must be followed. Once the inspection is conducted, TCCT officers must prepare a detailed report for the court, outlining the outcomes and findings.51
The TCA imposes criminal sanctions for obstructing TCCT officers during dawn raids, namely imprisonment for up to one year and/or a fine of up to THB 20 000 (approximately EUR 520).52
The TCA does not specify which court is competent to authorise dawn raids. During the OECD fact-finding mission, stakeholders mentioned that in practice the Central Administrative Court issues search warrants in administrative cases, while the Intellectual Property and International Trade (IPIT) Court handles criminal cases.
At the time of writing, the TCCT had conducted only one dawn raid, in a cartel investigation, without prior judicial authorisation. In this case, the government’s Institute of Forensic Science assisted the TCCT in assessing the collected evidence, but the agency plans to handle the analysis internally in future cases. The TCCT has not requested search warrants in other cases.
Requests for information and oral statements
The TCA allows the TCCT to request individuals and legal persons, including business operators and public authorities, to provide information, data and documents at any time during investigations.53 Information requests can be sent not only to the investigated parties but also to third parties, who must respond within the time limit set by the TCCT.
The TCA also gives the TCCT the power to request defendants and third parties to provide oral statements during investigations. These interviews are recorded by the investigation team, and the record must be signed by the person giving the statement and the investigation team.54
Failure to comply with requests for information or oral statements is subject to criminal sanctions, namely imprisonment for up to three months and/or a fine of up to THB 5 000 (approximately EUR 130).55
According to the TCCT, all requests for information have been complied with, and the TCCT has never imposed sanctions in this regard.
2.3.3. Adjudication
Upon receiving the report prepared by the sub-committee of inquiry or the Secretary-General (as described above), the TCC must take a decision. In cases involving administrative infringements, the TCC has full adjudicative powers, including to make findings and impose sanctions.56
In criminal cases, the TCC can settle, as discussed below, or decide to proceed through the public prosecution. In the latter case, the Intellectual Property and International Trade (IPIT) Court has the adjudicative power to determine whether an infringement has occurred and to impose sanctions, although this has never happened in practice.57
There are no specific legal provisions governing the standard of proof in competition cases.
During the OECD fact-finding mission, stakeholders noted that adjudicating authorities have discretion to evaluate the evidence gathered during an investigation and determine whether an infringement has occurred. In criminal cases (i.e. hard-core cartels and abuse of dominance), the standard of proof is very high, as judges require that anti-competitive practices be proven beyond a reasonable doubt. For administrative cases, the standard of proof is less demanding, requiring clear and convincing evidence to sanction competition infringements.
Stakeholders interviewed by the OECD expressed concerns about how challenging it is to prove a criminal case, which would prevent an effective competition enforcement in Thailand. In addition to the high standard of proof, the lack of competition law expertise (particularly among public prosecutors and judges), including its legal concepts and economic principles, would make it even more difficult to sanction competition violations, particularly in abuse of dominance cases. As mentioned earlier, in most jurisdictions, criminal sanctions for hard-core cartels are regarded as a complement (rather than a substitute) for administrative sanctions. Furthermore, only hard-core cartels – and in some jurisdictions only bid rigging – are criminalised.
The absence of per se/by object competition infringements also hinders competition enforcement, since anti-competitive effects must be proven even in hard-core cartel cases.
Interim measures
The TCC can issue interim measures before the adoption of a final decision. The general criteria for granting interim measures are: (i) there is credible evidence suggesting that one or more business operators have engaged or will engage in an anti-competitive behaviour; and (ii) such behaviour is causing or is likely to cause damage to other business operators or the competitive environment that would be difficult to reverse or remedy later. Interim measures can involve both positive and negative injunctions (i.e. orders to act or refrain from acting).58
Before imposing an interim measure, the investigated parties must be informed of the facts and given an opportunity to submit a response. However, the TCC can issue an interim measure without prior notification and hearing of the investigated parties, particularly in urgent cases.59 Decisions must detail the factual and legal reasoning and may be appealed before the courts.60
There are no specific legal provisions on who can request an interim measure (e.g. ex officio or upon request by complainants or third parties), when they can be requested (i.e. at which stage of the investigation) or whether there is a maximum duration for these measures.
The TCA stipulates that the Central Administrative Court is the competent court to review interim measures.61 However, stakeholders interviewed by the OECD suggested that this could create a conflict in criminal cases, where the IPIT Court has the power to issue the final decision.
At the time of writing, the TCC had never issued an interim measure in competition cases.62
Sanctions
As discussed above, sanctions for anti-competitive infringements in Thailand vary according to the type of behaviour.63 Both undertakings and individuals (e.g. directors or managers acting on behalf of an undertaking)64 can be sanctioned, as follows:
Criminal infringements: imprisonment for up to two years and/or a fine of up to 10% of the turnover for the year in which the offence has occurred (for hard-core cartels and abuse of dominance)65 and imprisonment for up to three years and a fine of 50% of the highest bid price submitted by the joint violators or the value of the contract awarded, whichever is greater (for bid rigging in public procurement)66
Administrative infringements (i.e. non-hard-core agreements and unfair trade practices): a fine of up to 10% of the turnover for the year in which the offence has occurred.67
In both criminal and administrative cases, if the infringement was committed in the first year of the business operation, the fine should be up to THB 1 million (approximately EUR 26 240).68
The legal provisions are unclear about how fines are calculated in cases where the infringement lasted for more than one year, as they only mention “the year in which the offence has occurred”. According to the TCCT, when the sanctioned conduct lasts more than one year, fines should be calculated taking into account the years during which the offence occurred.
Moreover, the TCA does not specify whether the turnover to be considered is domestic or global. There is also no guidance on how to calculate fines for individuals, as the provisions use the term “turnover”, which does not appear to be applicable for individuals.
Neither the TCA nor TCCT’s internal regulations provide a methodology for setting sanctions.69 During the OECD fact-finding mission, TCCT staff mentioned that sanctions are determined within the limits established by the TCA (i.e. 10% of the turnover for the year in which the offence has occurred), considering the severity of the offence, the harm to competition, the benefits gained from the violation, and the level of co-operation from the parties during the investigations. However, as mentioned above, the OECD was unable to obtain consistent information on TCCT’s decisions (including regarding sanctions), it was not possible assess whether sanctions are indeed proportionate and deterrent.
Unlike Thailand, most jurisdictions worldwide follow common steps when setting fines, including (i) determination of a base fine; (ii) adjustment of the base fine for aggravating and mitigating circumstances (e.g. recidivism, the role of the undertaking in the infringement, co-operation with the investigating authorities and the existence of a compliance programme); and (iii) additional adjustments related to statutory limits and financial capability of the offender. A majority of competition authorities refer to the domestic turnover as the basis for the calculation of the fine, while other authorities calculate the basic fine to be imposed with reference to the global turnover (OECD, 2016[26]).
The absence of clear guidance on how to set fines departs from the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), according to which jurisdictions should have a “clear legal framework for competition enforcement with clearly defined and publicly available competition laws and regulations”, as well as to ensure that “competition law enforcement in non-discriminatory, proportionate and consistent across similar cases”.
In Thailand, commitment decisions are not possible, i.e. the TCCT cannot terminate an investigation by accepting remedies or commitments voluntarily proposed by the parties to address the initial concerns identified by the agency. This is a common practice in many jurisdictions (OECD, 2016[27]).
Furthermore, the Thai legal framework does not provide for non-monetary sanctions, such as director disqualification and bidder exclusion. This also contradicts the OECD Recommendation concerning Effective Action against Hard Core Cartels (OECD, 2019[17]), which calls for jurisdictions to
provide for effective sanctions of a kind and at a level adequate to deter firms and individuals from participating in hard core cartels and incentivise cartel members to defect from the cartel and co-operate with the competition agency. To this effect, Adherents should introduce a combination of sanctions (civil, administrative and/ or criminal, monetary and non-monetary) for an adequate deterrent effect in their jurisdiction. Adherents should consider introducing sanctions against individuals having participated in cartels
The TCA also sets sanctions for procedural infringements:
Non-compliance with requests for information or oral statements: criminal sanctions of imprisonment for up to three months and/or a fine of up to THB 5 000 (approximately EUR 130);70
Obstruction of dawn raids: criminal sanctions of imprisonment for up to one year and/or a fine of up to THB 20 000 (approximately EUR 520)71
Obstruction of investigations: criminal sanctions of imprisonment for up to one month and/or a fine of up to THB 2 000 (approximately EUR 52)72
Disclosure of confidential information (e.g. business secrets) obtained during investigations: criminal sanctions of imprisonment for up to one year and/or a fine of up to THB 100 000 (approximately EUR 2 600)73
Non-compliance with interim measures: an administrative fine of up to THB 6 million (approximately EUR 157 440) along with an additional fine of up to THB 300 000 (approximately EUR 7 800) per day for the duration of the violation.74
Criminal sanctions are enforced by courts, while administrative sanctions are imposed by the TCC. In case parties fail to comply with TCC’s decisions, the Legal Affairs Unit is in charge of enforcing them by filing an execution suit before the Central Administrative Court.75
Settlements
The TCA allows the TCC to settle criminal cases,76 whereby the investigated parties admit guilt and agree to pay a fine determined by the agency, taking into account the severity of the offence and its impact on competition.77
The TCC – or the Secretary-General on behalf of the TCC – typically offers the investigated parties the opportunity to settle once the investigation is concluded.78 Nevertheless, a settlement should not be offered if the investigated parties are committing the same offense for the third time or if the offence has caused significant negative impacts on competition.79 Investigated parties may also request the TCC to settle a case.80
If the investigated parties agree to settle the case and pay the established fine within the deadline set by the TCC, then the case is closed.81 Otherwise, the TCC proceeds with criminal prosecution.82
The TCA is silent on the involvement of public prosecutors and/or the IPIT Court in the settlement process. Since they are legally entitled to engage in criminal prosecution and adjudication, respectively, it would be expected that they have the final word in the settlement procedure, but this does not appear to be the case. The TCCT mentioned that, in practice, public prosecutors are informed when a case is settled by the TCC. However, it remains unclear whether they have powers to oppose a settlement.
Neither the TCA nor TCCT’s internal regulations provide clear guidance on how fines should be set for settlements, for instance whether they should include discounts compared to the fines likely to be imposed through a judicial decision. Likewise, the TCCT’s internal regulation on settlements does not specify how to identify cases with significant negative impacts on competition, which would preclude the TCC from settling. This is likely to create legal uncertainty regarding the application of the settlement mechanism.
During the OECD fact-finding mission, stakeholders mentioned that settlements are a common and desired outcome, as they speed up proceedings by avoiding the need for criminal prosecution. They also noted that business operators are usually willing to negotiate with the TCCT and accept settlements.
The OECD was also unable to obtain consistent information on the number of settlements by the TCCT or the amount of discounts offered. At the time of writing, publicly available sources indicated that three cases in which investigations concluded for the existence of anti-competitive practices were settled.83
Lastly, the TCA is unclear on whether settlements are possible in administrative cases. While Section 79 of the TCA (which regulates the settlement process) is located under the section on criminal sanctions and is understood by the TCCT to cover only criminal cases, the provision state that it applies to “all offences under this Act”, which could be interpreted to include administrative infringements.
Transparency of decisions
The legislation governing the disclosure of official information establishes a general right for citizens to access official government information, but it also includes several exceptions with ambiguous language.84
To comply with the aforementioned legislation, only brief summaries of TCC decisions are made available on TCCT’s website, providing very limited information about the case. The names of the infringers are not disclosed.85
During the OECD fact-finding mission, TCCT staff mentioned that decisions are not published because they contain confidential information, such as trade secrets. Although they believe that publishing a public version of each decision would be beneficial, they understand that doing so would be illegal and could result in personal sanctions.
The lack of transparency hinders the development of competition policy in Thailand. For instance, it reduces public awareness of TCC’s decisions and diminishes the deterrent effect of competition enforcement. It also prevents businesses and the society from better understanding how competition law is interpreted and applied by the TCCT.
The practice in Thailand also does not align with the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), which recommends that jurisdictions should “ensure that competition law enforcement is transparent and predictable, by (…) publishing the facts, legal basis and sanctions relating to decisions, including decisions to settle cases, subject to the protection of confidential information”. The Recommendation defines confidential information as “business secrets and other sensitive information, as well as any other information treated as confidential under applicable law”.86
Most jurisdictions publish their decisions while safeguarding business secrets and other confidential information. Generally, a public version of the entire decision is made available to the public, including the names of the parties and the main content of the decision, including sanctions imposed.87
Section 51 of the TCA establishes a merger control regime in Thailand, comprising two different systems:
Pre-merger authorisation (ex-ante system), for transactions that may cause a monopoly or result in a dominant position in a market (Section 51, paragraph 2, of the TCA)
Post-merger notification (ex-post system) within seven days from the date of the transaction,88 for mergers that may substantially reduce competition in a market under the criteria prescribed by TCC’s regulations (Section 51, paragraph 1, of the TCA).
In the ex-ante system, the notification has suspensory effects until the decision by the TCCT, which can authorise the transaction under the conditions proposed by the companies involved; authorise the transaction subject to remedies; or reject the transaction.
In the ex-post system, the TCCT must assess the notified transaction and issue a so-called “acknowledgment decision”. However, the TCCT only recognises the occurrence of such transactions, having no powers to intervene in them (i.e. it cannot impose remedies or reject them), even if the agency concludes that the mergers are anti-competitive.
As informed during the OECD fact-finding mission, the main objective of post-merger notifications is to gather information and monitor the market, including to identify potential anti-competitive behaviour and refer it to the Investigation Unit. There are not established methods and criteria to guide the assessment of post-merger notifications.
The post-merger notification system with no powers for the competition authority to intervene (i.e. to impose remedies or reject the transaction) is uncommon in other jurisdictions and cannot be considered an effective merger control regime. The TCCT has no powers over transactions notified ex-post, and yet it must evaluate all cases, which imposes a significant workload on the TCCT and may undermine the well‑functioning of the ex-ante merger review regime. Indeed, as described below, the TCCT received 12 ex‑ante and 130 ex-post merger notifications until 2023.
Given these characteristics, while sections 2.4.1 and 2.4.2 apply to both merger review systems – as they concern the definition of a merger and the notification thresholds – sections 2.4.3 and 2.4.4 mainly relate to the ex-ante regime.
2.4.1. Definition of merger
According to Section 51, paragraph 4, of TCA, supplemented by TCC’s internal regulation,89 the following transactions fall under TCCT’s merger review:
A merger among producers, sellers, producers and sellers, or service providers, resulting in one business operator remaining and the others terminating, or a new business operator coming into existence
An acquisition of over 50% of another business operator’s assets
An acquisition of shares with voting rights exceeding 50% of the total voting rights of another business operator
An acquisition of shares, warrants to purchase shares or other securities convertible into shares exceeding 25% of the total voting rights of a listed company.
For the purposes of an acquisition of shares, it should include not only the shares of the target business operator, but also any other acquisition of shares that results in holding more than 30% of the voting rights of a business operator with a common policy relationship or common controlling interest.90
The creation of a joint venture is not explicitly covered by the legal definition of mergers, and according to the TCCT it would not be under the merger control regime in Thailand, unless it falls under one of the cases above.
Furthermore, as mentioned in section 1.3, the notion of a business operator, as defined in Section 5 of the TCA, appears to be narrow and would not cover holding companies, since they are not a vendor, producer or service provider. Therefore, the merger of two holding companies, for example, would not be subject to merger review.
Transactions aiming at internal restructuring among business operators under a single economic entity where there is no competition among them are outside the scope of merger review.91
2.4.2. Notification thresholds
As mentioned above, there are two systems for merger review in Thailand, each determined by specific notification thresholds, established by the TCA and TCC’s internal regulation.92
Mergers that may lead to a monopoly or result in a dominant position in a market are subject to an ex-ante approval by the TCCT (pre-merger approval):93:
A business operator is considered to hold a monopoly when:94
It is the sole player in a relevant market with the power to independently determine price and quantity of products or services and
Its sales revenue exceeds THB 1 billion (EUR 26.24 million approximately).
A business operator is considered to hold a dominant position when:
It has a market share of over 50% in a relevant market in the preceding year and its sales revenue exceeds THB 1 billion (EUR 26.24 million approximately)95 or
It is among the three largest business operators in a relevant market with a combined market share of over 75%, has sales revenue exceeding THB 1 billion (EUR 26.24 million approximately) and has a market share of over 10% in the preceding year.96
Mergers that may substantially reduce competition in a market must be notified within 7 days after the completion of the transaction (post-merger notification).97 A transaction is considered to substantially reduce competition when it fulfils the following cumulative conditions:98
The sales revenue of one of the merging parties or the combined sales revenue of the merging parties exceeds THB 1 billion (EUR 26.24 million approximately), including the sales revenue of all business operators under a single economic entity and
The transaction does not constitute a monopoly or a business operator with dominant position.
The TCA establishes very open notification thresholds (i.e. monopoly, dominant position and substantial lessening of competition), which are intertwined with the competition assessment, typically addressed at a later stage by most competition authorities. In addition, the fact that the ex-ante regime only covers transactions that may lead to a monopoly or result in a dominant position appears to indicate that only unilateral effects are considered a basis for intervention in merger review, to the detriment of co‑ordinated effects.
The TCCT tried to complement the legal thresholds with further details through internal regulations, including a turnover-based test and a market share test. Nonetheless, competitive assessment remains an important element to be considered prior to the notification. Moreover, there is no guidance on some of the criteria. For instance, it is not clear that the sales turnover to be considered is the one from the preceding year.
It is also unclear whether only the sales turnover in Thailand must be considered. Unlike Thailand, most jurisdictions include local nexus criteria, such as local assets or turnover, within their notification thresholds (OECD, 2016[28]). Accordingly, the OECD Recommendation on Merger Review (OECD, 2005[29]) recommends jurisdictions to “assert jurisdiction only over those mergers that have an appropriate nexus with their jurisdiction”.
Therefore, the notification thresholds are not clear and involve a complex assessment of the relevant market and the companies’ activities, which is particularly challenging in Thailand, as described above. This can lead to high costs for the companies concerned and to considerable uncertainty about how to interpret the notification requirement, which raise doubts about whether (and which) notification is required. In addition, this can result in both type 1 errors (i.e. notification of mergers that should not be notified) and type 2 errors (i.e. absence of notification of mergers that should be notified).
During the OECD fact-finding mission, stakeholders mentioned that in practice it may be very challenging to establish whether a given transaction must be notified. In particular, private lawyers interviewed by the OCDE indicated that they often recommend their clients notify a transaction ex-ante to avoid the risk of being sanctioned for gun-jumping in the future, which makes transactions more costly and time-consuming. Additionally, by notifying transactions in Thailand, firms acknowledge the anti-competitive potential of the transaction, considering that the notification thresholds already include an assessment of the transaction’s impact on competition, as mentioned above.
To avoid imposing excessive costs and burdens on the merging parties, the OECD Recommendation on Merger Review recommends that members “use clear and objective criteria to determine whether and when a merger must be notified or, in countries without mandatory notification requirements, whether and when a merger will qualify for review” (OECD, 2005[29]).
According to the TCCT, between 2017 (when the TCA entered into force) and 2023, the agency received 12 ex-ante merger notifications and 130 post-merger notifications, as indicated in the table below.
Source: data provided by the TCCT.
The number of merger notifications in Thailand seems particularly low at present, particularly if only ex-ante notifications are considered. This suggests that the current notification thresholds are too high, which may result in a number of anti-competitive transactions escaping merger review.
Note: Peer groups refer to the same groups in Figure 1.3. GDP peers include Malaysia and Bangladesh, which do not have merger regime.
Source: OECD CompStats and TCCT.
There is no unique rule or general principle for determining optimal numerical levels for notification thresholds. Nevertheless, there is a certain consensus on the need to consider a set of factors when choosing appropriate notification thresholds. This includes: the size of the economy (e.g., Gross Domestic Product – GDP) or of certain industries; the size of companies operating within the territory; data from previous transactions; the average number of transactions that can be effectively reviewed; the experience of similarly situated jurisdictions; the initial information requirements; the ability to quickly clear transactions that do not raise competition concerns; whether the competition authority has jurisdiction to review non‑notifiable transactions. Moreover, notification thresholds should be regularly reviewed and adjusted if needed to ensure they remain up to date and accurately reflect the reality of the economy (ICN, 2008[30]). This is also consistent with the OECD Recommendation on Merger Review (OECD, 2005[29]), according to which “Member countries should review their merger laws and practices on a regular basis to seek improvement and convergence towards recognised best practices”.
2.4.3. Procedure
Pre-notification
Like in several legislations worldwide, the TCA does not expressly provide for a pre-notification phase, in which merging parties could consult preliminary the TCCT on aspects such as whether the transaction in question is subject to notification (and if so if ex-ante or ex-post), competition issues that the transaction could create and documents to prepare to attach to the notification. Similarly, the TCCT has not issued any internal regulations on this procedure.
Nevertheless, stakeholders interviewed during the OECD fact-finding mission mentioned that in practice merging parties commonly approach the TCCT before notifying a merger, especially to seek advice on the type of notification they should submit, given the legal uncertainty surrounding the notification thresholds, as discussed above. The TCCT has generally encouraged these informal consultations to expedite the review process, since this allows the staff to start assessing the case before the formal notification. Previous consultations also minimise the risk of an incomplete file being submitted. Pre‑notification consultations do not bind the TCCT or the parties involved in the merger review process, which is in line with the practice of most jurisdictions.
Notification
The TCA does not specify the form and content of merger applications, but the TCCT has issued internal regulation governing these aspects.99 Accordingly, notifications for ex-ante approvals must be submitted using the form available on the TCCT’s website,100 along with supporting documents. These include a proposed merger plan and related timeline, as well as reports on the shareholding structure and market structure, covering market definition, market shares, sales revenues and the effects of the merger (e.g. market concentration, barriers to entry, unilateral and coordinated effects and impacts on general economic welfare and consumers).101
Filing a merger notification for ex-ante approval costs THB 250 000 (approximately EUR 6 525).102 The merger filing fee is set by the TCA and has remained unchanged since the law was enacted in 2017. The TCA does not provide for flexibility for future adjustments, for instance by using inflation indices or through non-legislative procedures (e.g. by government decree). Post-merger notifications are not subject to any filing fee.
Timeline
The receipt of a notification under the ex-ante regime triggers a 90-day period within which the TCCT must make a decision on the proposed merger. This deadline can be extended by 15 days based on a reasoned decision by the TCC.103
These time limits apply regardless of the level of complexity of the transaction. The Thai system does not differentiate cases based on the complexity of the transaction nor on the findings of an initial analysis.
The TCCT may take statements and request additional information from the merging firms and third parties (including both private and public entities).104 Such information requests do not suspend the time limit for issuing a final decision.
There is no requirement for the TCCT to publicise the receipt of a merger notification and the start of a review, for instance by disclosing the name of the parties involved and their economic activities. Third parties are not allowed to intervene in the procedure by providing their views and data, unless requested by the TCCT.
Unlike Thailand most jurisdictions allow the participation of third parties in the merger review process, which may bring additional elements and views during the investigation, helping competition authorities take more informed decisions. The OECD Recommendation on Merger Review (OECD, 2005[29]) also recognises that “third parties with a legitimate interest in the merger under review (…) should have an opportunity to express their views during the merger review process”. The fact that decisions are not publicised may also prevent third parties from appealing if they do not agree with the reasoning.
There are no rules establishing detailed procedural rules, for example to ensure that merging parties are given the opportunity to consult with the TCCT at key stages of the investigation. In the absence of clear procedural rules, it is unlikely that merging parties’ rights of defence and other legal rights are safeguarded. During the OECD fact-finding mission, stakeholders expressed concerns about procedural fairness in Thailand, including in the context of merger review. This does not align with the OECD Recommendation on Merger Review (OECD, 2005[29]), according to which “merger laws should ensure procedural fairness for merging parties”, including “the opportunity for merging parties to obtain sufficient and timely information about material competitive concerns raised by a merger” and “a meaningful opportunity to respond to such concerns” (OECD, 2005[29]).
Merger decisions should be justified with both factual and legal reasoning.105 Within 7 days of issuing the decision, the TCCT must notify the merging parties, who then have 60 days to appeal to the Central Administrative Court if they do not agree with the reasoning.106
Only a brief summary of final decisions is published on the TCCT’s website, with limited details about the cases (e.g. without disclosing the name of the parties or the industry in which they operate). This does not align with the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), which calls jurisdictions to “ensure that competition law enforcement is transparent and predictable, by (…) publishing the facts, legal basis and sanctions relating to decisions, including decisions to settle cases, subject to the protection of confidential information”. Likewise, such practice contradicts the OECD Recommendation on Merger Review (OECD, 2005[29]), which also recommends members to publicise “reasoned explanations for decisions to challenge, block or formally condition the clearance of a merger”.
During the OECD fact-finding mission, stakeholders mentioned that the 90-day period (extendable by 15 days) to review a merger is too short for complex cases. This may be particularly problematic given the fact that this timeline is inflexible (i.e. that the deadline cannot be suspended when the TCCT asks for additional information). To bypass the time limitation, the TCCT begins assessing the transactions before they are formally notified, either because they become aware of them during pre-notification consultations or through the media. The informal pre-notification phase is also used to ensure that the merging parties will provide necessary documents and information at the moment of notification.
According to the TCCT, in practice the merger review process takes 78 days on average.107
The absence of a simplified procedure in Thailand increases the duration of merger review, especially for transactions that do not raise significant competition concerns. This is likely to raise firms’ costs and may discourage pro-competitive or competitively-neutral mergers.
Many jurisdictions introduce a simplified merger regime, involving a simplified notification and/or simplified assessment process by reviewing authorities for cases that meet specific criteria (e.g. absence of horizontal overlaps or vertical relationships between the merging parties, and combined market shares). In 2021, 44 out of a sample of 68 jurisdictions had some form of simplified merger regime in place (OECD, 2023[31]). Moreover, according to the OECD Recommendation on Merger Review (OECD, 2005[29]), members should establish procedures “to ensure that mergers that do not raise material competitive concerns are subject to expedited review and clearance”.
2.4.4. Substantive analysis and remedies
Neither the TCA nor TCCT’s internal regulations establish a clear substantive test for the ex-ante review of a merger. There are no merger guidelines outlining the considerations that the TCCT should take into account when reviewing transactions, despite the efforts of the OECD to support Thailand in this regard (OECD, 2021[32]).
Pursuant to the TCA, the TCCT should consider the following aspects in order to authorise a merger: (i) reasonable business needs; (ii) benefits for promoting a business operator; (iii) absence of severe harm to the economy; and (iv) absence of adverse impact on consumers in general.108 However, there are no guidance on how the TCCT assesses these elements.
The information and documents that merging parties must submit when notifying a transaction also suggest the elements the agency will take into account. As mentioned above, these include market definition (see section 2.2.1), market concentration, barriers to entry, unilateral and coordinated effects, the impact of the transaction on general economic welfare and consumers, as well as efficiencies deriving from the merger.109
During the fact-finding mission, TCCT staff confirmed that the key aspects considered in merger assessment are the definition of the relevant market, an analysis of its structure (including market shares) and barriers to entry, the likelihood of collusion post-merger and the impact of the transaction on the economy, including both macro and micro dimensions. The TCCT also stated that all types of transactions (i.e. horizontal, vertical and conglomerate) are reviewed.
The focus of the analysis appears to be on the market structure rather than the lessening of competition.110 This was confirmed by stakeholders interviewed by the OECD, who mentioned that the TCCT does not perform in-depth economic analysis in its merger reviews, focusing on structural aspects of the transaction. Indeed, as discussed above, ex-ante approval is required for transactions resulting in a monopoly or a dominant position in a relevant market, while mergers that may substantially reduce competition are subject only to the ex-post assessment, in which the TCCT has no actual powers to intervene.
The TCCT can approve the merger subject to conditions.111 There are no legal provisions in either the TCA or TCCT internal regulations regarding remedies, for instance establishing their basic principles, requirements and procedure.
If the merging parties fail to comply with the remedies imposed by the TCCT, the agency can withdraw the authorisation, either in whole or in part,112 and impose a fine.113
During the OECD fact-finding mission, TCCT staff mentioned that remedies can be either behavioural or structural, determined on a case-by-case basis. In practice, however, behavioural remedies have been preferred (e.g. prohibiting the merging parties from engaging in future mergers). No structural remedies have ever been imposed.
The TCCT is responsible for overseeing compliance with imposed remedies. According to the TCCT, so far, merging parties have implemented the remedies and collaborated with the TCCT in monitoring of compliance with these conditions. However, the OECD was unable to confirm that this was indeed the case due to the lack of publicly available data.
According to stakeholders interviewed by the OECD, the remedies imposed by the TCCT so far have been limited and ineffective, failing to adequately address the identified competition issues. They also expressed concerns about the TCCT’s capability to effectively monitor behaviour remedies.
TCCT’s decisions are not typically published, and the summaries available on TCCT’s website often do not allow for a comprehensive understanding of the substantive analysis carried out by the agency.114 The names of the merging parties are usually not disclosed, unless they are listed companies and required to publicise the transaction according to the Securities and Exchange Commission’s regulations. For these reasons, it was not possible to thoroughly evaluate how the TCCT reviews mergers in practice. As mentioned above, the practice of not publicising decisions departs from the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement (OECD, 2021[15]), according to which jurisdictions should “ensure that competition law enforcement is transparent and predictable, by (…) publishing the facts, legal basis and sanctions relating to decisions, including decisions to settle cases, subject to the protection of confidential information”. Similarly, the OECD Recommendation on Merger Review (OECD, 2005[29]) provides that “member countries should ensure that the rules, policies, practices and procedures involved in the merger review process are transparent and publicly available, including by publishing reasoned explanations for decisions to challenge, block or formally condition the clearance of a merger”.
According to information provided by the TCCT, between 2018 and 2023, it received 12 notifications of transactions under the pre-approval system. Of the 12 transactions reviewed, 6 were authorised without conditions, 3 were authorised subject to conditions and 3 did not require ex-ante approval. No merger has ever been prohibited.
Source: data provided by the TCCT.
2.4.5. Sanctions
The TCCT can impose an administrative fine of up to 0.5% of the transaction value (i) if a transaction fulfilling the ex-ante notification thresholds is implemented before being notified; or (ii) if a notified transaction is implemented before the authorisation of the competition authority (violation of the standstill obligation).115 Likewise, the same fine can imposed if the merging parties do not comply with the remedies imposed by the TCCT when the transaction had been approved subject to conditions.116
Most jurisdictions calculate fines for gun jumping based on a percentage of the infringing undertaking’s turnover, while others impose fixed fines or per-day fines. The transaction value is not typically considered to establish such fines (ICN, 2020[33]).
Furthermore, the TCCT can impose an administrative of up to THB 200 000 (approximately EUR 5 200), along with an additional fine of up to THB 10 000 (approximately EUR 260) per day for the duration of the violation, on business operators who fail to comply with the post-merger notification requirement within 7 days from the date of the transaction.117
According to the TCCT, it has not yet imposed a fine for violation of the ex-ante notification requirement, the standstill obligation or non-compliance with remedies. During the OECD fact-finding mission, TCCT staff mentioned that they are trying to be proactive in detecting violations to merger review rules, for instance by gathering publicly available information, although this approach usually only works for listed companies. The TCCT has also received complaints regarding potential violations.
At the time of writing, the TCCT had imposed sanctions on business operators on eight occasions for failing to notify a transaction, all of which under the ex-post notification regime. The OECD was not provided with the decisions and therefore could not identify the reasons for the absence of notification in these cases.
TCCT decisions are administrative orders and are subject to review by the Central Administrative Court. The decisions of the Central Administrative Court can be subject of an appeal to the Supreme Administrative Court, which is the final court of appeal for all TCCT decisions.118
Anyone harmed by a TCCT decision may file an appeal against such decision on matters of fact and/or law.119 In general, the appeal must be filed within 90 days from the date the cause of action is known or should have been known, which is typically the notification of the administrative decision.120 Nevertheless, the TCA has specific provisions for appeals against decisions on merger review and interim measures, which must be lodged within 60 days from the notification of those decisions.121 Decisions of the Central Administrative Court can be appealed within 60 days of the date of the decision.122
The Central Administrative Court may conduct a full review of TCCT decisions, re-examining the facts and the law as applied by the agency. The Supreme Administrative Court typically limits its review to questions of law.
At the time of writing, according to the TCCT, the Central Administrative Court had issued only a few decisions related to competition law and there were 6 ongoing cases related to administrative orders, involving unfair trade practices.
During the OECD fact-finding mission, stakeholders mentioned that in practice the Central Administrative Court tends to limit its review to the legality of the procedural aspects of TCCT decisions. Accordingly, the Court has adopted a minimalist approach in competition cases, deferring to the TCCT’s technical expertise on substantive matters.
Stakeholders also noted that courts are not subject to a specific timeline and judicial proceedings are lengthy. They also expressed concerns about whether judges have the necessary expertise to assess competition cases. The OECD is unaware of any training activities on competition law for judges in Thailand.
The OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement provides that courts should be able to examine “facts and evidence, and the merits of competition law enforcement decisions”. In addition, it stipulates that jurisdictions should “strive for the review to be completed in a reasonable time, taking into account the nature and complexity of the case” (OECD, 2021[15]).
Criminal decisions are issued by the IPIT Court and are subject to review by the Court of Appeal for Specialised Cases and the Supreme Court. The Court of Appeal for Specialised Cases can hear appeals on both questions of law and fact, while the Supreme Court typically can hear appeals only on questions of law (i.e. legality test).
At the time of writing, the IPIT Court had not issued any decision related to competition law. No information regarding the actual functioning of the Court was provided to the OECD team.
Victims of infringements of the TCA can lodge a case for compensation of damages. The Office of the Consumer Protection Board (OCPB) – the Thai consumer protection authority – as well as associations or foundations recognised by the OCPB also have the right to seek damages on behalf of consumers or their members (i.e. class action).123
Actions for damages fall within the jurisdiction of the IPIT Court, regardless of whether they refer to criminal or administrative infringements.124
The TCA does not specify whether a finding of wrongdoing by either the TCC or the IPIT Court is a prerequisite for filing a civil claim. Therefore, in principle, both follow-on and stand-alone actions would be possible. It is unclear what the probatory value of infringement decisions would be in follow-on actions.
The limitation period for lodging an action for damages is one year from the date the victims become aware or should have become aware of the cause of the damage (i.e. the anti-competitive practice).125 Nevertheless, it is unclear how this provision would be interpreted by courts, which may disincentivise victims for bringing cases, as they might fear that the limitation period has already expired.
In addition to the lack of competition culture in Thailand, the fact the decisions are not publicly available makes it difficult to the victims to become aware of competition violations. While in theory interested parties may request access to information about cases, in practice such requests are often not granted, even when the cases are already closed, following the legislation governing the disclosure of TCCT’s official information.126
At the time of writing, there had been no cases of private damages actions in Thailand.
← 1. As well as unfair trade practices.
← 2. Sections 54, 55 and 58 of the TCA.
← 3. Section 5 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 4. For instance, whether the behaviour reduces the number of competitors or the output of products or services (Section 6 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 5. For example, whether the behaviour restricts the rights or opportunities of competitors to sell products of services Section 7 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 6. Sections 6 and 7 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 7. These practices are further detailed in Section 8 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 8. Section 54, paragraph 2, of the TCA and Section 9 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018). Two or more business operators are considered to be under a single economic entity when they are subject to corporate controls by the same controlling interest. Controlling interest occurs when a business operator owns more than 50% of another business operator’s shareholdings with voting rights; directly or indirectly controls the majority of voting rights in a shareholders’ meeting of a business operator; or has the ability to appoint or remove at least half of the board members of a business operator (TCC Notice on Rules for the Assessment of Undertakings under Common Policy Relations or Common Controlling Interests B.E. 2561 (2018).
← 9. Section 72 of the TCA.
← 11. Act on Offences Relating to the Submission of Bids to State Agencies, B.E. 2542 (1999).
← 12. These practices are further detailed in Section 10 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018).
← 13. Section 56 of the TCA and Sections 11 and 12 of the TCC Notice on Guidelines for the Assessment of Collective Practices by Undertakings that are Monopolization, Competition Reduction, or Competition Restriction in Market B.E. 2561 (2018). The TCCT can also establish, through its internal regulations, other agreements that may be exempted from the prohibition under Section 55 of the TCA (Section 56, item 4, of the TCA), although this has not yet occurred.
← 14. Section 82 of the TCA.
← 15. Section 72 of the TCA.
← 16. Section 5, paragraph 6, of the TCA and Section 3 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 17. Section 5 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 18. Sections 6 and 10-12 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 19. Sections 7 and 13 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 20. Sections 8 and 14 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 21. Article 3, item 1, of the TCCT Notice on Criteria for being an Undertaking with Dominant Position B.E. 2563 (2020).
← 22. Article 3, item 2 and paragraph 1, of the TCCT Notice on Criteria for being an Undertaking with Dominant Position B.E. 2563 (2020).
← 23. Article 4 of the TCCT Notice on Criteria for being an Undertaking with Dominant Position B.E. 2563 (2020) and TCC Notice on Rules for the Assessment of Undertakings under Common Policy Relations or Common Controlling Interests B.E. 2561 (2018).
← 24. Section 15 of the TCC Notice on Guidelines for the Assessment of Market Definition and Market Shares B.E. 2561 (2018).
← 25. Section 5, paragraph 7, of the TCA.
← 26. For example, 40% in the European Union (European Commission, 2024[47]).
← 27. TCC Notice on Guidelines for the Assessment of Practices by an Undertaking with Dominant Position B.E. 2561 (2018).
← 28. Sections 5 and 6 of the TCC Notice on Guidelines for the Assessment of Practices by an Undertaking with Dominant Position B.E. 2561 (2018). In addition, Sections 7 and 8 refers to very broad conducts that could encompass other unilateral practices not expressly mentioned in Sections 5 and 6.
← 29. Section 9 of the TCC Notice on Guidelines for the Assessment of Practices by an Undertaking with Dominant Position B.E. 2561 (2018).
← 30. Available at: https://www.tcct.or.th/assets/portals/1/files/EnergyDrinkCase1.pdf and https://www.tcct.or.th/assets/portals/1/files/EnergyDrinkCase2.pdf
← 31. Sections 8-11 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 32. Sections 12-14 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 33. If the business operators do not meet the required market-share thresholds, the TCCT can open an investigation into unfair trade practices.
← 34. Section 13 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 35. Section 15 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 36. A sub-committee may be appointed with the specific aim of defining the relevant market in a particular case (Section 20 of the TCA).
← 37. Section 15 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 38. Section 16 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 39. Section 21, paragraph 1, of the TCA and Sections 16-19 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 40. Section 35 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 41. Sections 36 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 42. Section 21, paragraph 2, of the TCA and Sections 21, 37 and 41 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019). These investigation powers must also follow the Criminal Procedure Code (particularly Sections 132 and 133).
← 43. Section 21, paragraph 2, of the TCA.
← 44. Section 43 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019), as amended by Article 5 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution (No. 3), B.E. 2566 (2020).
← 45. Sections 22, item 1, and 26 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 46. Sections 31-32 and 44 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 47. Sections 33 and 45 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 48. Section 25 of the TCA.
← 49. Section 63, paragraph 1, item 2, of the TCA.
← 50. Section 63, paragraph 2, of the TCA.
← 51. Section 39 of the Supreme Court President's Regulations on Criteria and Procedures for Issuing Orders or Criminal Warrants, B.E. 2548 (2005).
← 52. Section 74 of the TCA.
← 53. Section 63, paragraph 1, item 1, of the TCA.
← 54. Section 27, paragraph 2, of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 55. Section 73 of the TCA.
← 56. Sections 17, item 9, and 80-85 of the TCA and Sections 34 and 46 of the TCC Regulation on Complaints, Investigation, and Procedures for Criminal or Administrative Prosecution, B.E. 2562 (2019).
← 57. Sections 26 and 71-79 of the TCA.
← 58. Section 60 of the TCA and TCC Regulation on Guidelines, Procedures, Conditions and Duration for Issuing Orders to Business Operators under Section 60 of the TCA, B.E. 2562 (2019).
← 59. Section 7 of the TCC Regulation on Guidelines, Procedures, Conditions and Duration for Issuing Orders to Business Operators under Section 60 of the TCA, B.E. 2562 (2019).
← 60. Sections 60, paragraph 3, and 61 of the TCA.
← 61. Section 62 of the TCA.
← 62. The TCC had issued an interim measure in an unfair practice case, but the order was later annulled by the Central Administrative Court, which found that the legal requirements had not been met.
← 63. Sanctions for violations to merger review rules are discussed in section 2.4.5.
← 64. Sections 77 and 84 of the TCA.
← 65. Section 72 of the TCA.
← 66. Section 4 of the Act on Offences Relating to the Submission of Bids to State Agencies, B.E. 2542 (1999).
← 67. Section 82 of the TCA.
← 68. Sections 72, paragraph 2, and 82, paragraph 2, of the TCA.
← 69. Section 85 of the TCA only mentions that the TCC must consider the seriousness of the offence when setting administrative fines. In addition, there TCCT’s internal regulations on setting fines for the purpose of settling cases, as discussed below.
← 70. Section 73 of the TCA.
← 71. Section 74 of the TCA.
← 72. Section 75 of the TCA.
← 73. Section 76 of the TCA.
← 74. Section 83 of the TCA.
← 75. Section 85, paragraph 2, of the TCA.
← 76. Section 79 of the TCA and TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 77. Section 3, paragraph 3, of the TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 78. Sections 2, paragraph 2, and 3 of the TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 79. Section 5 of the TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 80. Section 4 of the TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 81. Section 79 of the TCA.
← 82. Section 3, paragraphs 2 and 4 of the TCC Notice on Rules, Procedures, and Conditions for the Settlement of Fine, B.E. 2562 (2019).
← 84. Official Information Act, B.E. 2540 (1997).
← 85. According to Section 15 of the TCC Regulation regarding the Disclosure of Information of the TCCT, B.E. 2565 (2022), administrative decisions must not be disclosed if this can cause damage to the parties. In addition, decisions in criminal cases are disclosed only to the accused parties and those directly involved.
← 86. While the definition of confidential information varies across jurisdictions, it typically includes business secrets and other commercially sensitive information, sensitive personal information (e.g. telephone numbers and addresses, medical or employment records), national security information and information which cannot be disclosed due to international law obligations (OECD, 2019[51]).
← 87. For instance, this is the practice of the European Commission (European Commission, 2024[48]).
← 88. The date of the transaction is considered to be: (i) when one business operator remains and another ceases to exist; (ii) when the registration of asset ownership transfer is completed; or (iii) when the transfer of shares occurs (Section 3, paragraph 4, of the TCC Notice on Rules, Procedures, and Conditions for Notification of Merger Transaction B.E. 2561 (2018).
← 89. TCC Notice on Criteria for the Assessment of Acquisition of Assets or Shares to Control Business Policy, Administration, Direction, or Management deemed as Merger B.E. 2561 (2018).
← 90. Section 4, paragraph 3, of the TCC Notice on Criteria for the Assessment of Acquisition of Assets or Shares to Control Business Policy, Administration, Direction, or Management deemed as Merger B.E. 2561 (2018).
← 91. Section 51, paragraph 6, of the TCA and TCC Notice on Rules for the Assessment of Undertakings under Common Policy Relations or Common Controlling Interests B.E. 2561 (2018).
← 92. TCC Notice on Rules, Procedures, and Conditions for Notification of Merger Transaction B.E. 2561 (2018).
← 93. Section 51, paragraph 2, of the TCA.
← 94. Section 3, paragraph 3, of the TCC Notice on Rules, Procedures, and Conditions for Notification of Merger Transaction B.E. 2561 (2018).
← 95. Article 3, item 1, of the TCCT Notice on Criteria for being an Undertaking with Dominant Position B.E. 2563 (2020).
← 96. Article 3, item 2 and paragraph 1, of the TCCT Notice on Criteria for being an Undertaking with Dominant Position B.E. 2563 (2020).
← 97. Section 51, paragraph 1, of the TCA.
← 98. Section 3, paragraph 1, of the TCC Notice on Rules, Procedures, and Conditions for Notification of Merger Transaction B.E. 2561 (2018).
← 99. Section 51, paragraph 5, of the TCA and TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 101. Section 6 of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018). Post-merger notifications must also be submitted using the form provided by the TCCT, along with simplified documents compared to those required for ex-ante notifications (Section 5 of the TCC Notice on Rules, Procedures, and Conditions for Notification of Merger Transaction B.E. 2561 (2018).
← 102. Annex to the TCA.
← 103. Section 52, paragraph 1, of the TCA.
← 104. Section 9, items 2 and 3 of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 105. Section 52, paragraph 4, of the TCA and Section 10, paragraph 3, of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 106. Section 52, paragraph 5, of the TCA and Sections 10, paragraph 3, and 11 of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 107. According to the TCCT, the assessment of post-merger notifications takes on average 148 days, with the longest case taking 342 days.
← 108. Section 52, paragraph 2, of the TCA.
← 109. Section 6 of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 110. The definition of relevant markets was further discussed in section 2.2.1.
← 111. Section 52, paragraph 3, of the TCA and Section 10, paragraph 2, of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 112. Section 53, paragraph 2, of the TCA and Section 12, paragraph 2, of the TCC Notice on Rules, Procedures, and Conditions for Merger Approval B.E. 2561 (2018).
← 113. Section 81 of the TCA.
← 114. As mentioned above, this follows the Official Information Act, B.E. 2540 (1997) and TCC Regulation regarding the Disclosure of Information of the TCCT, B.E. 2565 (2022).
← 115. These two infractions are commonly called “gun jumping” (OECD, 2018[49]).
← 116. Section 81 of the TCA.
← 117. Section 80 of the TCA.
← 118. Sections 9, paragraph 1, item 3, and 11 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).
← 119. Section 42 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).
← 120. Section 49 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). In cases where the party has submitted an administrative appeal, the 90-day period starts from the date of the submission of the administrative appeal.
← 121. Sections 52, paragraph 5, and Section 60, paragraph 3, of the TCA.
← 122. Section 73 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).
← 123. Section 69 of the TCA.
← 124. Section 26 of the TCA.
← 125. Section 70 of the TCA.
← 126. Official Information Act, B.E. 2540 (1997) and TCC Regulation regarding the Disclosure of Information of the TCCT, B.E. 2565 (2022).