Trade Competition Commission Review of the Draft Announcement Regarding the Criteria for Identifying Business Operators with Dominant Positions

The Trade Competition Commission has issued the Draft Announcement Regarding the Criteria for Identifying Business Operators with Dominant Positions (“Draft Announcement”). The Draft Announcement is open for public hearing from 20 November to 19 December 2024. The criteria in the Draft Announcement will apply to both conduct related to the abuse of a dominant position (“Conduct”) and determining whether a pre-merger filing or a post-notification filing is necessary with regard to a given merger (“Transaction”). 

The Draft Announcement does not contain significant modifications to the Announcement of the Trade Competition Commission on Criteria for Being a Business Operator with a Dominant Position B.E. 2563 (2020) (“Dominant Position Announcement”). The only change relates to the market share requirement for the top three business operators, which has been revised from 10% to 20%.

The Draft Announcement defines a business operator that holds a dominant position by evaluating both market share and revenue, as follows:

• A business operator in the market for a particular product or service that had a market share equal to or greater than 50% during the preceding year (i.e., 1 January – 31 December 2023, if the conduct/Transaction will be conducted/completed in 2024) and had sales revenue of THB one billion or more during the same period; or
• A business operator that is among the top three business operators in the market for a particular product or service, which had a combined market share of 75% or more during the preceding year, if the conduct/Transaction will be conducted/completed in 2024) and had sales revenue of THB one billion or more during the same period.
  
  However, the criteria for the top three business operators do not apply to a business operator with sales revenue of less than one billion Baht or a market share of less than 20% during the past year and sales revenue of THB one billion or more during the same period.

Please note that, in accordance with the current interpretation of the Trade Competition Commission and its officials, the top three business operations must satisfy both of the following criteria: revenue of less than one billion Baht and a market share of less than 10%. This requirement remains applicable despite the use of the word "or" in the Dominant Position Announcement. It is understood that the Draft Announcement will be interpreted in a consistent manner. 

The Draft Announcement also states that any case or proceeding initiated by the Trade Competition Commission or the Trade Competition Commission of Thailand prior to the effective date of the Draft Announcement will continue to be governed by the Dominant Position Announcement until the relevant case or proceeding is complete. 

This article is intended merely to provide a regulatory overview, and is not intended to be comprehensive or to constitute legal advice. Should you have any questions about this or on any other areas of law, please do not hesitate to contact us at the address below: 

Siriwan Nopareporn
Attorney-at-Law

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