Thông tư 36/2009/TT-BCT

CIRCULAR

PROMULGATING THE REGULATION ON PETROL AND OIL AGENTS

THE MINISTRY OF INDUSTRY AND TRADE

Pursuant to the Government's Decree No. 189/2007/ND-CP of December 27, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;
Pursuant to the June 14, 2005 Commercial Law;
Pursuant to the Government's Decree No. 84/2009/ND-CP of October 15, 2009, on petrol and oil trading;
In furtherance of directing opinions in the Government Office's Official Letter No. 7484/VPCP-KTTH of October 26, 2009, guiding the Decree on petrol and oil trading,
The Minister of Industry and Trade stipulates as follows:

Article 1. To promulgate together with this Circular the Regulation on petrol and oil agents.

Article 2. This Circular takes effect on December 15, 2009, the effective date of the Government's Decree No. 84/2009/ND-CP on petrol and oil trading.

This Circular replaces the Trade Minister's Decision No. 1505/2003/QD-BTM of November 17, 2003, promulgating the Regulation on petrol and oil agents, and Decision No. 11/2007/QD-BTM of May 22, 2007, amending and supplementing a number of articles of the Regulation on petrol and oil agents issued together with the Trade Minister's Decision No. 1505/2003/QD-BTM of November 17, 2003.

Article 3. Concerned units under the Ministry of Industry and Trade, provincial-level Industry and Trade Departments, concerned organizations and individuals and petrol and oil traders shall implement this Circular. Units should regularly report on the results of implementation of this Circular and arising difficulties and problems to the Ministry of Industry and Trade for supplementation and adjustment.

REGULATION

 ON PETROL AND OIL AGENTS
(Promulgated together with the Industry and Trade Minister's Circular No. 36/2009/TT-BCT of December 14, 2009)

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Regulation guides the implementation of provisions on petrol and oil agents in the Vietnamese market.

Article 2. Subject of application

This Regulation applies to traders that distribute petrol and oil in the Vietnamese market under the Government's Decree No. 84/2009/ND-CP of October 15, 2009, on petrol and oil trading (below referred to as Decree No. 84/2009/ ND-CP).

Article 3. Interpretation of terms

1. Principal means a wholesale trader or a general agent that has a distribution network as prescribed in Decree No. 84/2009/ND-CP and delivers petrol and oil to agents.

2. Agent means a trader that satisfies all conditions prescribed in Decree No. 84/2009/ND-CP and receives petrol and oil from the principal for sale on commission.

A general agent shall act as an agent when receiving petrol and oil from the wholesale trader and as principal when delivering petrol and oil to agents.

3. Trademark means are a sign used to distinguish goods and services of different organizations and individuals.

Article 4. Provisions on the use of trademarks

1. The use of a principals trademark shall be agreed between the principal and an agent in the trademark license contract in conformity with the Law on Intellectual Property.

2. Petrol and oil retail shops of an agent or a general agent which does not use the trademark under Clause 1 of this Article shall, apart from hanging signboards under current law, be required to display the name of the wholesale trader that delivers petrol and oil to them.

Chapter II

OPERATIONS OF PETROL AND OIL AGENTS

Article 5. Organization of the system of petrol and oil agents

1. The system of petrol and oil agents constitutes part of the petrol and oil distribution network of the wholesale trader, including general agents and retail agents.

2. The system of petrol and oil agents of a wholesale trader is organized as follows:

The wholesale trader shall directly set up a system of petrol and oil retail agents or set up a system of petrol and oil retail agents through general agents.

3. The wholesale trader shall:

a/ Organize its petrol and oil distribution network in conformity with its business capacity; register this distribution network with the Ministry of Industry and Trade before January 31 every year (according to Form No. 01 attached to this Circular - not printed herein): and. upon changes in the distribution network, send an additional registration to the Ministry of Industry and Trade within 30 (thirty) working days:

b/ Sell petrol and oil in the form of agency only to traders being general agents or agents within its distribution network under signed agency contracts;

c/ Send reports on petrol and oil left in stock (made according to form No. 02 attached to this Circular - not printed herein) to the Ministry of Industry and Trade (the Domestic Market Department) once every 10 days and on a monthly, quarterly and annual basis. Reports must be sent within 2 days after the end of a reporting period;

d/ Collaborate with central and local functional agencies in managing petrol and oil trading activities of general agents and retail agents in accordance with law so as to ensure market and price stability; work out plans on development of the distribution network and physical and technical foundations for petrol and oil trading activities in regions, areas, provinces and cities, meeting the requirement for market development.

4. The general agent shall:

a/ Set up its own petrol and oil distribution network, including attached retail shops and retail agents as prescribed in Decree No. 84/2009/ND-CP; register this network with the wholesale trader when signing the contract to act as the latter's general agent; take responsibility before law and the wholesale trader for the operation of its petrol and oil distribution network;

b/ Sell petrol and oil in the form of agency only to traders being agents within its distribution network;

c/ Sign a contract to act as general agent for only one wholesale trader. The general agent shall liquidate the agency contract signed with the present wholesale trader before signing the contract to act as general agent for another wholesale trader;

d/ On the basis of the contract signed with the wholesale trader, continuously and stably supply petrol and oil to retail agents within its distribution network to meet market demands;

Refrain from receiving petrol and oil of unclear origin for sale at attached retail shops and delivery to retail agents within its distribution network;

e/ Take responsibility for the quantity and quality of petrol and oil received from the wholesale trader according to the signed contract. Clearly state in a contract signed with a retail agent responsibilities of involved parties for the quality of petrol and oil; provide for the control and supervision of petrol and oil quality and take joint liability for the quality and quantity of petrol and oil sold at its attached retail shops and retail agents within its distribution network;

f/ Before January 31 every year, register its distribution network (made according to form No. 01 attached to this Circular - not printed herein) with competent state management agencies. Specifically:

In case its distribution network is located within one province or centrally run city, register the registration with the Industry and Trade Department of the province or centrally run city where it is headquartered.

In case its distribution network is located within 2 or more provinces or centrally run cities, apart from sending a report on the distribution network to the Industry and Trade Department of the province or centrally run city where it is headquartered, register its distribution network with the Ministry of Industry and Trade (the Domestic Market Department).

Upon changes in its distribution network, within 30 (thirty) working days, send an additional report thereon to the provincial-level Industry and Trade Department, if the distribution network is located within one province or centrally run city, or to the concerned provincial-level Industry and Trade Department and the Ministry of Industry and Trade (the Domestic Market Department), if the distribution network is located within two or more provinces or centrally run cities.

5. The retail agent shall:

a/ Sign a contract to act as petrol and oil retail agent for only one wholesale trader or general agent. Liquidate the contract signed with the present general agent or wholesale trader before signing a contract to act as agent for another general agent or wholesale trader;

b/ Ensure the continuous supply of petrol and oil to the market and refrain from selling petrol and oil at prices higher than retail prices set by the wholesale trader;

c/ Take responsibility before law and the principal for the quantity and quality of sold petrol and oil. Refuse to receive petrol and oil from the principal if having grounds to believe that petrol and oil are not up to quality standards:

d/ Refrain from receiving petrol and oil of unclear origin for sale at its retail shops;

e/ Before January 31 every year, register its distribution network (made according to form No. 01 attached to this Circular - not printed herein) with competent state management agencies. Specifically:

In case its distribution network is located within one province or centrally run city, register the distribution network with the Industry and Trade Department of the province or centrally run city where it is headquartered.

In case its distribution network is located within 2 or more provinces or centrally run cities, apart from sending a report on the distribution network to the Industry and Trade of the province or centrally run city where it is headquartered, register the distribution network with the Ministry of Industry and Trade (the Domestic Market Department).

Upon changes in its distribution network, within 30 (thirty) working days, traders shall send an additional report to the concerned provincial-level Industry and Trade Department, if the distribution network is located within one province or centrally run city, or to the concerned provincial-level Industry and Trade Department and the Ministry of Industry and Trade (the Domestic Market Department), if the distribution network is located within 2 or more provinces or centrally run cities.

Article 6. Signing of agency contracts

1. An agency contract must be made in writing, covering the following principal details: the names, addresses and tax identification numbers of the agent and the principal; the form of agency; the quantity, quality and categories of petrol and oil. the method of delivery, sale prices and commission; and other commitments as provided by law and this Circular.

2. The term of an agency contract shall be agreed upon by involved parties but must be at least 12 (twelve) months.

3. An agency contract must clearly identify responsibilities of involved parties for the quality of petrol and oil; the inspection and supervision of petrol and oil quality and the wholesale trader's joint liability for the quantity and quality of petrol and oil sold by its petrol and oil agents.

4. An agency contract must contain commitments to comply with the contract and assure the lawfulness of petrol and oil supplied to agents.

5. An agency contract must stipulate the issuance of invoices and vouchers; payment of commission; and invoices and vouchers on goods in circulation to be issued to petrol- and oil-carrying vehicles according to the Finance Ministry's regulations.

6. An agency contract must stipulate that only lawful petrol- and oil-carrying vehicles which satisfy current regulations on technical safety, fire prevention and fighting and environmental hygiene and have a valid inspection certificate issued by a competent state management agency may be used for petrol and oil transport.

7. The selection of petrol- and oil-carrying vehicles, liability for human and vehicle insurance, safety assurance during transportation, responsibilities for the quantity and quality of petrol and oil, risks and loss, process for petrol and oil delivery and receipt, freights and other contractual terms will be agreed upon and committed by involved parties in the agency contract.

Article 7. Petrol and oil prices

1. The wholesale trader shall establish sale prices for its agents and retail prices applicable at retail shops within its distribution network. Retail prices would serve as a basis for determination of sale prices and commission for agents.

2. Retail prices are set in the wholesale trader's decision which must be sent to all units within the wholesale trader's distribution network before these prices are applied and, at the same time, to the Industry and Trade Department of the province or centrally run city where the distribution network is located, for inspection and supervision.

3. Petrol and oil retail shops may not sell petrol and oil at prices higher than retail prices set by the wholesale trader and shall post up retail prices and working hours at noticeable places, sell petrol and oil at posted prices (except for cases of selling petrol and oil under sales promotion programs of the wholesale trader according to current regulations).

4. The wholesale trader shall inspect and take joint liability for retail prices applicable within its distribution network.

Article 8. Commission

Commission means the sum of money paid by the principal to an agent as agreed upon in the agency contract. Commission must be sufficient for the principal and the agent to cover expenses, earn reasonable profits and perform obligations towards the state budget.

The mode of payment of commission will be agreed upon and committed by involved parties in the agency contract.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 9. Responsibilities of provincial-level Industry and Trade Departments

Provincial-level Industry and Trade Departments shall coordinate with relevant local functional agencies in inspecting the observance of this Regulation, specifically:

1. To organize periodical or irregular inspections, when necessary, at all petrol and oil retail shops in localities.

2. To inspect and coordinate with wholesale traders to inspect petrol and oil general agents and retail agents within the latter's distribution networks upon occurrence of related events.

3. To inspect and control the satisfaction of conditions of petrol and oil general agents, retail agents and retail shops.

4. To promptly handle violations specified in Clauses 3,4 and 5, Article 31 of Decree No. 84/2009/ND-CP according to law.

Article 10. Handling of violations

Petrol and oil traders who violate this Regulation and relevant laws shall, depending on the severity of their violations, be administratively handled or examined for penal liability in accordance with current law.-