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Circular No. 09/2007/TT-BTM of July 17, 2007
Guiding implementation of trading and distribution activities by enterprises with foreign owned capital in Vietnam.



GOVERNMENT 



SOCIALIST REPUBLIC OF VIETNAM

No. 09-2007-TT-BTM

Independence - Freedom - Happiness


Hanoi, 17 July 2007

 

CIRCULAR
GUIDING IMPLEMENTATION OF DECREE 23-2007-ND-CP OF THE GOVERNMENT DATED 12 FEBRUARY 2007 IMPLEMENTING THE COMMERCIAL LAW REGARDING TRADING AND DISTRIBUTION ACTIVITIES
1 BY ENTERPRISES WITH FOREIGN OWNED CAPITAL IN VIETNAM

Pursuant to Decree 29-2004-ND-CP of the Government dated 16 January 2004 on functions, duties and powers of the Ministry of Trade;
Pursuant to Decree 23-2007-ND-CP of the Government dated 12 February 2007 implementing the
Commercial Law regarding activities of purchase and sale of goods and activities directly related to purchase and sale of goods by enterprises with foreign owned capital in Vietnam;
Pursuant to Decree 35-2006-ND-CP of the Government dated 31 March 2006 on franchising activities;
Pursuant to Decree 12-2006-ND-CP of the Government dated 23 January 2006 implementing the
Commercial Law regarding international purchase and sale of goods, agency for sale and purchase, and processing and transit of goods involving foreign parties;
Pursuant to Decree 108-2006-ND-CP of the Government dated 22 September 2006 implementing the
Law on Investment;

 The Ministry of Trade hereby provides the following guidelines on Decree 23-2007-ND-CP:

 I. General Guidelines

 1. Investment in order to conduct trading activities and activities directly related to trading:

 A foreign investor or an enterprise with foreign owned capital in Vietnam which satisfies the conditions stipulated in article 4.1(a) of Decree 23 shall have the right to invest in order to conduct trading activities and activities directly related to trading in the investment forms and pursuant to the schedules for implementation stipulated in Appendix 1 of Decision 10-2007-QD-BTM of the Minister of Trade dated 21 May 2007 announcing the schedule for implementation for trading activities and distribution activities (hereinafter referred to as Decision 10).

 2. Exercise of export rights:

 2.1 An enterprise with foreign owned capital in Vietnam which has been licensed to exercise export rights shall be permitted to exercise export rights as follows:

(a) To export lines of goods not on the list of goods the export of which is prohibited (Section 1 of Appendix 1 of Decree 12), not on the list of goods (if any) the export of which has been temporarily suspended, and not on the list of goods not permitted to be exported (Clause A of  Section II of Appendix 2 of Decision 10).

(b) With respect to lines of goods on the list of goods permitted to be exported pursuant to a schedule (Clause B of Section II of Appendix 2 of Decision 10), an enterprise with foreign owned capital shall be permitted to conduct export in accordance with the schedule which has been stipulated.

(c) To directly purchase goods from business entities which have business registration for purchase and sale of, or which have the right to distribute such goods in order to export them.

(d) To directly conduct export procedures with the customs office in accordance with the law of Vietnam.

2.2 An enterprise with foreign owned capital which has been licensed to exercise export rights shall not be permitted to set up an establishment in order to store goods for export.

 3. Exercise of import rights:

3.1 An enterprise with foreign owned capital in Vietnam which has been licensed to conduct import rights shall be permitted to exercise import rights as follows:

(a) To import lines of goods not on the list of goods the import of which is prohibited (Section II of Appendix 1 of Decree 12), not on the list of goods (if any) the import of which has been temporarily suspended, and not on the list of goods not permitted to be imported (Clause A of Section II of Appendix 3 of Decision 10).

(b) With respect to lines of goods on the list of goods permitted to be imported pursuant to a schedule (Clause B of Section II of Appendix 3 of Decision 10), an enterprise with foreign owned capital shall be permitted to conduct import in accordance with the schedule which has been stipulated.

(c) To directly conduct import procedures with the customs office in accordance with the law of Vietnam.

(d) To sell each group of imported goods to one business entity with business registration to trade or with the right to distribute such group of goods. An enterprise with foreign owned capital shall have the right to make its own selection of this business entity and to register it with the competent licence-issuing body. Each group of goods comprises the lines of goods in one chapter of the Import Tariff List.

3.2 An enterprise with foreign owned capital which has been licensed to exercise import rights shall not be permitted to set up an establishment in order to distribute imported goods.

 4. Exercise of distribution rights:

 4.1 An enterprise with foreign owned capital which has been licensed to conduct distribution rights shall be permitted to exercise distribution rights as follows:

(a) To conduct wholesaling, retailing, franchising and agency for trading goods manufactured in Vietnam and goods imported into Vietnam, except for goods on the list of goods not permitted to be distributed (Clause A of Section II of Appendix 4 of Decision 10).

(b) With respect to lines of goods on the list of goods permitted to be distributed pursuant to a schedule (Clause B of Section II of Appendix 4 of Decision 10), an enterprise with foreign owned capital shall be permitted to conduct wholesaling, retailing, franchising and agency for trading of goods in accordance with the schedule as stipulated.

4.2 An enterprise with foreign owned capital which has been licensed for wholesaling [and] retailing shall be permitted to conduct wholesaling [and] retailing activities correctly as stipulated in clauses 7 and 8 of article 1 of Decree 23. An enterprise with foreign owned capital which has been licensed to establish a retail sales outlet (also including a first retail sales outlet) shall not be permitted to conduct retailing outside [or in addition to] the retail sales outlet which has been licensed.

4.3 Establishment of retail sales outlets outside [in addition to] the first retail sales outlet:

(a) The establishment of retail sales outlets in addition to the first retail sales outlet shall be considered on a case by case basis and shall depend on the number of retail sales outlets, market stability, population density in the province or city where the retail sales outlet is to be set up, and consistency of the investment project with the master plan of such province or city.

(b) Any enterprise with foreign owned capital which has already been granted an investment licence [or] investment certificate with items stipulating the establishment of retail sales outlet/s in addition to the first retail sales outlet but which has not yet been granted a licence  to establish a retail sales outlet in accordance with Decree 23 must conduct procedures for the issuance of a licence to establish a retail sales outlet in accordance with the guidelines in clause 4(d) of Section II of this Circular.

 

II. Issuance of Licences in Order to Conduct Trading Activities and Activities Directly Related to Trading

 1. Cases of investment only in order to exercise export rights [and/or] import rights but not to conduct distribution business or activities directly related to trading:

 (a) A foreign investor investing in Vietnam for the first time only in order to exercise export rights [and/or] import rights must conduct procedures for the issuance of an investment certificate.

An enterprise with foreign owned capital currently operating in Vietnam which only wishes to add exercise of export rights [and/or] import rights must conduct procedures to supplement its investment certificate.

An application file shall comprise:

- Request for issuance of or addition to an investment certificate in accordance with the law on investment;
- Explanatory statement on satisfaction of business conditions regarding nationality of the legal entity, investment form, business services and operational scope;
- Registration document for items on exercise of export rights [and/or] import rights.

(b) The competent licence-issuing body shall rely on the provisions in Decision 10 to issue or supplement the investment certificate without requiring approval from the Ministry of Trade.

 2. Cases of investment for the first time in order to conduct trading activities and activities directly related to trading:

(a) A foreign investor investing in Vietnam for the first time who invests in trading activities and activities directly related to trading must conduct procedures for the issuance of an investment certificate.

An application file shall comprise:

- Request for the issuance of an investment certificate in accordance with the law on investment;
- Explanatory statement on satisfaction of business conditions regarding nationality of the legal entity, investment form, business services and operational scope;
- Registration document for items on carrying out trading activities and activities directly related to trading.

(b) The competent licence-issuing body shall issue an investment certificate after obtaining approval from the Ministry of Trade.

 3. Cases of addition in order to conduct trading activities and activities directly related to trading:

 An enterprise with foreign owned capital which has already been granted an investment licence [or] investment certificate which wishes to add conduct of trading activities and activities directly related to trading must conduct procedures for the issuance of a business licence.

(a) Issuance of a business licence:

- An application file shall comprise:
+ Request for the issuance of a business licence on standard Form MD1 issued with this Circular;
+ Explanatory statement on satisfaction of business conditions regarding nationality of the legal entity, investment form, business services and operational scope;
+ Registration document for items on carrying out trading activities and activities directly related to trading.
- The competent licence-issuing body shall issue a business licence on standard Form GP1 issued with this Circular, after obtaining approval from the Ministry of Trade.

(b) Amendment of or addition to a business licence:

- An application file shall comprise:
+ Request for amendment of or addition to the business licence on standard Form MD2 issued with this Circular;
+ Copy of the issued business licence.
- The competent licence-issuing body shall issue a new business licence containing the amended or added items, and also revoke the previously issued business licence. In a case where the amendments of or additions to a business licence concern the business of trading and activities directly related to trading, the competent licence-issuing body shall make the amendment or addition after obtaining approval from the Ministry of Trade.

(c) Re-issuance of a business licence:

- An application file shall comprise:
+ Request for re-issuance of the business licence on standard Form MD3 issued with this Circular;
+ Document certified by the police office on declaration of loss of the business licence, or explanatory statement on the reason why the business licence was torn, burnt or otherwise destroyed.
- The competent licence-issuing body shall issue a new business licence containing all the same items as in the previously issued business licence.

4. Cases of establishment of a retail sales outlet in addition to the first retail sales outlet:

An enterprise with foreign owned capital which wishes to establish a retail sales outlet in addition to its first retail sales outlet must conduct procedures for the issuance of a licence to set up a retail sales outlet.

(a) Issuance of a licence to set up a retail sales outlet:

- An application file shall comprise:
+ Request for the issuance of a licence to set up a retail sales outlet on standard Form MD4 issued with this Circular;
+ Copy of the investment certificate [or] investment licence associated with setting up the first retail sales outlet.
- The competent licence-issuing body shall issue a licence to set up a retail sales outlet on standard Form GP2 issued with this Circular, after obtaining approval from the Ministry of Trade.

(b) Amendment of or addition to a licence to set up a retail sales outlet:

- An application file shall comprise:
+ Request for amendment of or addition to the licence to set up the retail sales outlet on standard Form MD5 issued with this Circular;
+ Copy of the licence to set up the retail sales outlet which it is requested to amend or add to.
- The competent licence-issuing body shall issue a new licence to set up a retail sales outlet containing the amended or added items, and also revoke the previously issued licence to set up the retail sales outlet. In a case where the amendments of or additions to the licence to set up the retail sales outlet concern operational items of the retail sales outlet, the competent licence-issuing body shall make the amendment or addition to the licence after obtaining approval from the Ministry of Trade.

(c) Re-issuance of a licence to set up a retail sales outlet shall be conducted the same as stipulated in clause 3(c) above.

(d) Issuance of a licence to set up a retail sales outlet for an outlet in addition to the first retail sales outlet which was established pursuant to law but which has not been granted a licence to set up pursuant to Decree 23:

- An application file shall comprise:
+ Request for the issuance of a licence to set up a retail sales outlet on standard Form MD4 issued with this Circular;
+ Report on investment status and operational status of the retail sales outlet for which a licence to set up is requested;
+ Copy of the investment certificate [or] investment licence.
- The competent licence-issuing body shall issue a licence to set up a retail sales outlet on standard Form GP2 issued with this Circular.

 III. Revocation of Business Licences and Licences to Set Up a Retail Sales Outlet

 The competent licence-issuing body shall revoke a business licence [and] a licence to set up a retail sales outlet in the following cases: 

1. An enterprise with foreign owned capital operating in the sector of trading and activities directly related to trading commits a breach of law for which the law stipulates that the business licence [and] licence to set up a retail sales outlet must be revoked.

2. The project investing in trading and activities directly related to trading terminates operation as stipulated by law.

3. The competent licence-issuing body revokes the investment certificate [or] investment licence.

IV. Reporting Regime

 1. Enterprises with foreign owned capital operating in the sector of trading and activities directly related to trading must comply with the regime on financial and statistical reporting stipulated by the law of Vietnam.

2. Every quarter, prior to the 15th day of the first month of the next quarter, competent licence-issuing bodies shall report to the Ministry of Trade on the status of issuance, re-issuance, amendment and revocation of licences to projects investing in trading and activities directly related to trading on standard Form BC issued with this Circular. 

V. Implementing Provisions

 1. This Circular shall be of full force and effect after 15 days from the date of its publication in the Official Gazette.

2. Any difficulties during implementation of this Circular should be reported to the Ministry of Trade for resolution.

  

The Minister of Trade

Deputy Minister

LE DANH VINH

 

  

Appendix MD-1
Request for Issuance of Business Licence

 

Name of enterprise                                                                            SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom – Happiness

 

 

REQUEST FOR ISSUANCE OF BUSINESS LICENCE
To: (The competent licence-issuing body)

  

1. Name of Enterprise: (print in capital letters): ...................................................................................

Investment Certificate/Investment Licence No. …. issued by …………….date of issuance …………..…...

Head office address: (complete in full the number of the house and street, ward, district and city or

province) …………………………………………………………………………………………………………….

Telephone number: ..……….. Fax: ………….. Email: ……………………. Website if any) ………….……..

 

2. Legal representative of the enterprise:

Full name: …………………………………………………………………………………… Male/Female ………

Position: ………………………………………………………………………………………………………………

People's identity card number: ………………………………………………… Date issued: ……...…………..

Issuing Body: ………………….......

Other personal legal identification (if no people's identity card) (specify the type of certificate, its number,

place of issuance and date of issuance) ………………………………………………………………………….

Place of registration of residential address: ………………………………………………………………………

Current address: ……………………………………………………………………………………………………..

  Requests issuance of a business licence with the following contents:

 

I. ………………

II. ……………...

 

(Record the trading activities and activities directly related to trading in accordance with Article 3.1 of Decree 23. In the case of a request to establish an initial retail sales outlet, record the following additional items: 

III. Establishment of a retail sales outlet: ……………………………………………………………………….

1. Name of the retail sales outlet (print in capital letters): …………………………………………………

2. Address (complete in full the number of the house and street, ward, district and city or province)

…………………………………………………………………………………………………………………………

Telephone number: ..……….. Fax: ………….. Email: ……………………. Website if any) ………… ……..

3. Person to be head of the retail sales outlet:

Full name (print in capital letters): ……………………………………………. Male/Female: …………………

People's identity card number: ………………………………………………… Date issued: ……...…………..

Issuing Body: ………………….......

Other personal legal identification (if no people's identity card) (specify the type of document, its number, place of issuance and date of issuance) ………………………………………………………………………….

Place of registration of residential address: ………………………………………………………………………

Current address: ……………………………………………………………………………………………………..

4. Operational items of the retail sales outlet: ………………………………………………………………..

I and other members undertake to be wholly responsible before the law for the legality, accuracy and truthfulness of the items in this application for issuance of a business licence.

 

 Date: ……………………………………

LEGAL REPRESENTATIVE OF THE ENTERPRISE

(Full name, signature and seal)

 

 

Documents enclosed:

1. ………………………………………

2. ……………………………………….

 

 

 

Appendix BC
Report by Licence-issuing Bodies

 

Name of licence-issuing body                                                            SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom – Happiness

 

 

To: The Ministry of Trade

 

STATUS OF ISSUANCE, AMENDMENT, ADDITION AND WITHDRAWAL OF LICENCES FOR INVESTMENT PROJECTS IN ACTIVITIES OF TRADING AND ACTIVITIES DIRECTLY RELATED TO TRADING

 (From ……………… date until …………………date)

 1. Status of issuance of licences 

Sector

Name of Enterprise

Investment Capital

Nationality of the

foreign party

Export, import

 

 

 

Distribution

- Wholesaling

- Retailing

- Retail sales outlets

 

 

 

Other Services

- Commercial assessments

 

 

 

 2. Status of amendments of and additions to licences 

Sector

Name of Enterprise

Investment

Capital

Nationality of

foreign party

Contents

amended or

added

Export, import

 

 

 

 

Distribution

- Wholesaling

- …………….

 

 

 

 

Other Services:

- Commercial assessment

- ……………..

 

 

 

 

 3. Status of withdrawal of licences 

Sector

Name of Enterprise

Investment

Capital

Nationality of

foreign party

Reason for

withdrawal of

licence

Export, import

 

 

 

 

Distribution

- Wholesaling

- …………….

 

 

 

 

…..

 

 

 

 

 4. Operational status of enterprises which have already been licensed.

 5. Proposals and recommendations

 Person preparing the report: ………………………………

 Contact telephone number: …………………………………

HEAD OF LICENCE-ISSUING BODY

 (Print full name and sign and seal)

Other Items