Normative explanation of oil supply behavior before full liberalization of the oil market
2022-05-17 14:28:58Explanation on the Normative Explanation of the Oil Supply Behavior Before the Full Liberalization of the Oil Products Market by the Fair Trade Commission of the Executive Yuan
1. Background description
Due to the liberalization of the domestic oil market, in accordance with the plan of the Ministry of Economic Affairs, the first stage was carried out in January 1988, in accordance with the "Administrative Regulations on the Operation Permits of the Import and Export of Petroleum and Petroleum Products, Production and Sales Business" authorized by the Energy Management Law. Open up the import of fuel oil, jet fuel and liquefied petroleum gas. As for the timing of the full liberalization of oil products in the second stage, the original plan was to fully open up the free import of oil products in July this year (1989). However, as the "Draft Petroleum Management Law" is still under consideration by the Legislative Yuan, the timing of full-scale oil market liberalization has not yet been determined. However, as far as domestic oil refiners are concerned, the diesel and kerosene petroleum products produced by Formosa Petrochemical Co., Ltd. were issued a business license by the Ministry of Economic Affairs on May 9, 1989, allowing them to be sold on the market. , The company's gasoline products are also preparing for listing. It is obvious that the second oil source in the domestic automotive oil market (ie gasoline and diesel) will join the competition in the domestic oil market one after another in the near future.
Regarding the oil supply contracts signed between oil product suppliers (referred to as oil suppliers) and gas stations before the liberalization of the oil product market, this Council has passed a resolution at the 326th Committee Meeting on January 26, 1987 , If the contract period of the oil supply contract exceeds the time of domestic oil liberalization or imported oil liberalization, and involves exclusive oil supply terms, it will directly hinder the new entrants from entering the market and seriously affect the oil liberalization. Policy objectives, the oil supplier is involved in violation of the provisions of Article 10, paragraph 1 of the Fair Trade Act. Although the timing of the full liberalization of oil products in the second stage has not yet been determined, since the beginning of 1989, major domestic oil product suppliers, gas station associations and gas station operators have Whether the oil supply contract terms and contract-related behaviors signed between operators and gas stations, oil product distributors and bulk users (referred to as counterparties) involve violations of the Fair Trade Law, that is, we are very concerned about it, and repeatedly report to them. The Association will ask. On June 14, 1989, the Association also invited oil suppliers including PetroChina, Formosa Plastics, Taiwan Esso, etc., as well as gas station-related industry associations in Taiwan Province, Taipei City, Kaohsiung City, Yilan County, Kaohsiung County, etc. Representatives, we will jointly hold a meeting to discuss this issue, so as to gather opinions from all walks of life.
In view of the fact that before the full liberalization of the oil market, new oil suppliers have not yet fully participated in the market, and the existing oil suppliers in the market still have a monopoly position, adding that oil and oil products are important livelihood resources, which are closely related to people's daily life and society. Economic development is closely related. In order to maintain the order of market transactions and the interests of consumers, and to ensure fair competition, we specially refer to the opinions of the symposium held by the Association on June 14, 1989, and summarize and analyze the current oil supply companies and trading counterparties, and oil supply contracts. and its related behaviors, which may involve behaviors that violate the Fair Trade Law. This specification has been developed to facilitate the compliance of the industry and serve as a reference for the association to handle related cases.
2. Forms of conduct involving violations of the Fair Trade Law
(1) Oil-cutting behavior: If an oil supplier with a monopoly position cuts off the oil supply to a gas station, oil dealer or bulk user without justifiable reasons, it will involve unfair methods, directly or indirectly hindering him The enterprise participates in competition or engages in other acts of abusing its monopoly position, which may violate the provisions of paragraph 1 or 4 of Article 10 of the Fair Trade Act.
(2) Restrictions on terminating contracts: Before the full liberalization of the oil market, when new oil suppliers have not fully participated in the market, in the oil supply contracts concluded between oil suppliers and their trading counterparties, it is advisable to give gas stations , oil product distributors or bulk users, etc., may terminate the contract with a prior notice, so as not to hinder new entrants from entering the market, resulting in the effect of restricting competition. If the oil supplier fails to specify in the contract the right to terminate the contract for gas stations, etc., or requests high compensation when the contract is terminated, etc., restricting the counterparty's right to terminate the contract in the middle of the contract without justifiable reasons, which may restrict competition or hinder the If there is a risk of fair competition, it will involve the condition of improperly restricting the business activities of the counterparty, and the conduct of trading with them may violate the provisions of Paragraph 6 of Article 19 of the Fair Trade Act.
(3) Acts of differential treatment: If an oil supplier engages in the following acts of differential treatment without justifiable reasons, and there is a risk of restricting or hindering fair competition, it will involve differential treatment of other businesses without justifiable reasons, which will violate fairness The risk stipulated in the second paragraph of Article 19 of the Exchange Act:
1. Before the full liberalization of the oil market, that is, when new oil suppliers have not fully participated in the market, oil suppliers have not signed long-term oil supply contracts, long-term exclusive transactions, or have not participated in chain franchising. Distributors or bulk users, etc., are subject to differential treatment for the following matters:
(1) Oil trading conditions: such as oil prices, discounts, payment terms and availability for credit sales, etc.
(2) Incidental payments related to oil product transactions: such as the oil supply connection of oil depots (POS, namely retail point of sale system), whether the trademark of the oil supplier is authorized to use, etc.
2. Oil product suppliers refuse to supply oil products without justifiable reasons to oil product distributors, or to gas stations, oil product dealers or bulk users that have their own oil product brands or have traded with competitors.
(4) Incentive behavior: When an oil product supplier promotes its oil products, if there is coercion, inducement or other illegitimate methods to the gas stations, oil product distributors or bulk users that have signed oil supply contracts with it, Such as giving relevant equipment and services, or sharing their costs, losses, obligations to return, compensation for damages, etc., so that competitors (other oil product suppliers) trading counterparties and their own behavior, which may restrict competition or hinder fair competition. There is a risk of violating the provisions of Paragraph 3 of Article 19 of the Fair Trade Act.
(5) Restrictions on resale prices: Oil suppliers have restrictions on resale of the oil they supply to a third party or to a third party for resale by gas stations, oil distributors or bulk users. The price is likely to violate Article 18 of the Fair Trade Act.
(6) Acts of restricting sales areas and targets: Oil suppliers will violate Article 19, Paragraph 6 of the Fair Trade Act if they restrict their sales areas or targets for gas stations and oil distributors without justifiable reasons. Danger of regulations.
(7) Tying sales: When an oil supplier sells oil, if there is no legitimate reason, it requires gas stations, oil distributors or bulk users to purchase other products at the same time, which will violate the 19th Fair Trade Law Article 6 paragraph 6 of the risk.
(8) Fraudulent or apparently unfair behavior: Oil suppliers who interfere with the free trading decisions of gas stations, oil distributors or bulk users in other ways that violate effective competition or business ethics, and are sufficient to affect the order of market transactions , there is a risk of violating Article 24 of the Fair Trade Act.
(9) Abuse of monopoly position: An oil supplier with a monopoly position, if it abuses its monopoly position, conducts the aforementioned acts such as (2) restrictions on termination of contracts, (3) acts of differential treatment, (4) acts of inducement, ( 5) Acts of restricting resale prices, (6) Acts of restricting sales areas and targets, (7) Acts of tying sales, (8) Other acts that are deceptive or obviously unfair, which may violate the provisions of Article 10 of the Fair Trade Act .
(10) Combined behavior: If the oil supplier and the gas station or oil distributor have a control and subordination relationship with each other, the definition of combined behavior stipulated in Paragraph 1 of Article 6 of the Fair Trade Law is met, and it is consistent with the Fair Trade Law. Those who have the requirements for joint notification specified in Paragraph 1 of Article 11 shall submit a notification to the Association before the act of combining. An enterprise shall not join within 30 days from the date when the Association accepts its complete application materials, but the Association may shorten or extend the period when it deems it necessary, and notify the notifying enterprise in writing. Article 6, Paragraph 1 of the Fair Trading Law stipulates that the combined conduct includes:
1. Merger with other businesses;
2. Holds or acquires shares or capital contributions of other enterprises, which amount to one-third or more of the voting shares or total capital of other enterprises;
3. Acquired or leased all or a major part of the business or property of another enterprise;
4. Frequent joint operations with other businesses or entrusted operators by other businesses;
5. Those who directly or indirectly control the business operation or personnel appointment or dismissal of other enterprises. Paragraph 1, Article 11 of the Fair Trade Act stipulates that when businesses are combined, if there is one of the following circumstances, a notification shall be made to the Association in advance: 1. The market share of the business has reached one-third due to the combination; 2. The market share of one of the enterprises participating in the merger is one-fourth; 3. The sales amount of the enterprise participating in the merger in the previous fiscal year exceeds the amount announced by the association. The provisions of Article 11-1 of the Fair Trade Act and the provisions of Paragraph 1 of Article 11 of the same Act shall not apply in the following situations:
1. One of the enterprises participating in the merger has already held more than 50% of the voting shares or capital contribution of the other enterprise, and then merges with the other enterprise.
2. The same enterprise holds voting shares or a combination of enterprises with a capital contribution of 50% or more.
3. An enterprise assigns all or a major part of its business, property, or all or a part of its business that can be operated independently to another business that it has established independently.
4. The enterprise withdraws the shares held by its shareholders in accordance with the proviso of Paragraph 1 of Article 167 of the Company Act or Article 28-2 of the Securities and Exchange Act, so that its original shareholders meet the requirements of Paragraph 1 of Article 6 In the case of subparagraph 2.
(11) Joint action: Oil suppliers, gas stations, oil distributors or bulk users, if they have an agreement by contract, agreement or other methods, and other businesses that have a competitive relationship, jointly determine the price of goods or services , or restricting the quantity, technology, products, equipment, trading objects, trading areas, etc., and mutually restricting business activities, there is a risk of violating Article 14 of the Fair Trade Act.
3. Penalties and Legal Responsibilities for Violating the Fair Trade Law
(1) For those who violate the provisions of the Fair Trade Act, in accordance with the provisions of Article 41 of the same Act, the Association may order him to stop, correct his behavior, or take necessary corrective measures, and may impose a fine of NT$50,000 or more, A fine of not more than 25 million yuan. For those who still fail to stop or correct their behavior, or fail to take necessary corrective measures within the time limit, they may continue to be ordered to stop, correct their behavior, or take necessary corrective measures within a time limit, and they will be punished consecutively between 100,000 yuan and 50 million yuan each time. A fine shall be imposed until the act is stopped, corrected, or necessary corrective measures are taken.
(2) For those who violate the provisions of Articles 10 and 14 of the Fair Trade Act, in accordance with the provisions of Paragraph 1 of Article 35 of the same law, the Association shall order them to stop and make corrections within a time limit in accordance with the provisions of Article 41 of the same law. If he fails to stop, correct his behavior or take necessary corrective measures within the time limit, or if he stops and then commits the same or similar violation, the offender shall be sentenced to fixed-term imprisonment of not more than three years, short-term imprisonment, or A fine of less than NT$100 million is imposed or combined.
(3) For those who violate the provisions of Article 19 of the Fair Trade Law, in accordance with the provisions of Article 36 of the same law, the Association shall order them to stop, correct their behavior, or take necessary corrective measures within a time limit in accordance with the provisions of Article 41 of the same law. , and fails to stop, correct its behavior or take necessary corrective measures within the time limit, or to stop and then commit the same or similar violations, the perpetrator will be punished with imprisonment for not more than two years, short-term detention, or a fine or combined fine of NT$5 A fine of not more than ten million yuan.
(4) Combining in violation of Paragraphs 1 and 3 of Article 11 of the Fair Trade Act, or having been prohibited from combining by the central competent authority after reporting, or failing to comply with Paragraph 2 of Article 12 in order to secure the combination If the overall economic interests outweigh the unprofitable interests of restricting competition, and the additional burdens, in accordance with the provisions of Article 13 of the same Act, the Association may prohibit them from combining, order them to separate businesses within a time limit, dispose of all or part of their shares, transfer part of their business, Dismissal from office, or other necessary sanctions. For those who violate the previous punishment, the Association may order the dissolution, cessation of business or order to suspend business; and at the same time, in accordance with the provisions of Article 40 of the Fair Trade Act, a fine of not less than NT$100,000 but not more than NT$50 million may be imposed. Penalty. Those who violate the provisions of Paragraph 2, Paragraph 5, Article 11 of the Fair Trade Act shall be subject to a fine of not less than NT$50,000 but not more than NT$500,000.
(5) If an enterprise violates the provisions of the Fair Trade Act, in addition to being criminally or administratively liable, it must also be liable for damages in accordance with Chapter 5 of the same law.
4. This specification is only to illustrate that before the full liberalization of the oil market, when new oil suppliers have not fully participated in the market, relevant oil suppliers, gas stations, oil distributors or bulk users may violate fair trade. The behavior of the law. If there are any incompleteness in the description of this specification, we will supplement and revise it at any time, but the handling of relevant cases still needs to be re-confirmed on the basis of specific facts. 5. The Association will review and revise this specification in accordance with the timetable for the liberalization of the domestic oil market.
Original source: http://www.ftc.gov.tw/2000010129990101190.htm
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