You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

January 25, 2023

New Competition Regulations for Thailand’s Energy Sector

Subscribe to Updates

Thailand’s Energy Regulatory Commission (ERC) has issued four new regulations under the Energy Business Act B.E. 2550 (2007) setting forth competition regimes to control both anticompetitive conduct and market structure in the energy business sector. The regulations were published in the Government Gazette on December 19, 2022, and took effect the following day.

The key provisions of these ERC competition regulations largely mirror those articulated in the Trade Competition Act B.E. 2560 (2017) and its subordinate legislation. The most significant features of these competition regulations are summarized below.

Market Definition Regulation

The ERC’s market definition regulation (officially the ERC Regulation re: Market Definition and Relevant Market of Related Energy Services B.E. 2565) outlines the general framework for defining relevant markets in the energy sector. The factors to be taken into consideration include types of energy licenses, geographical areas, competition conditions, and interchangeability of energy services. In the annex to this regulation, the ERC has classified the relevant energy service markets as follows:

  • Power business activities include power generation, power transmission system services, power distribution system services, power distribution services, and power system control services.
  • Natural gas business activities include natural gas transmission through pipelines via natural gas transmission systems, natural gas procurement and wholesale via natural gas distribution systems, natural gas retail via natural gas distribution systems, and storage and regasification of liquefied natural gas.

The ERC will review its market definitions and relevant energy service markets from time to time, taking into account changes in technology and competition conditions as well as feedback from public hearings.

Market Dominance Regulation

Under the ERC’s market dominance regulation (officially the ERC Regulation re: Criteria on Business Operator having a Market Dominance B.E. 2565), the ERC is empowered to proactively determine and declare which license-holding energy business operators have a dominant position or significantly dominant position under its criteria, subject to public hearing and objections from the business operators concerned. The ERC can also request market data from business operators for these purposes. In addition, the ERC assumes authority to impose measures on business operators to prevent potential harm to competition or eliminate competition concerns.

Anticompetitive Conduct Regulation

The ERC’s anticompetitive conduct regulation (officially the ERC Regulation re: Rules and Measures on Monopoly, Reduction and Restriction on Competition in Energy Businesses B.E. 2565) aims to prevent license-holding energy business operators from unilaterally or jointly undertaking actions that may cause monopolization of—or reduction or restriction of competition in—energy service markets. However, the anticompetitive conduct regulation does not clarify or list examples of anticompetitive conduct; rather, the ERC will investigate and decide on a case-by-case basis regarding the conduct’s potential harm to competition and its effects in each relevant energy service market.

All energy business operators must notify the ERC immediately in the following cases:

  • They are aware of any conduct that may lead to monopolization or to reduction or restriction of competition;
  • They are harmed by anticompetitive conduct by other license holders; or
  • A license holder gains or may gain a dominant position in an energy service market.

An investigation and inquiry can be initiated with either a complaint from a license holder or by the ERC itself. The ERC has authority to impose specific remedies to suppress anticompetitive conduct, including cease-and-desist orders, administrative fines, orders to separate certain businesses’ accounting systems, obligation to disclose information to or notify the ERC, ERC determination of service prices or fees, and obligation to provide services to other license holders.

Merger and Cross-Shareholding Regulation

The ERC’s merger and cross-shareholding regulation (officially the ERC Regulation re: Rules and Procedures on Merger and Cross-Shareholding in Energy Businesses, B.E. 2565) repeals the previous merger control regulation for energy businesses and sets forth a new set of regimes to control mergers and acquisitions between two or more license holders in the energy industry. Under this regulation, “mergers” include mergers, amalgamation and acquisitions of assets, and direct and indirect acquisitions of shares as defined by the regulation. Cross-shareholding between license holders is also subject to control by the ERC.

  • Preapproval requirement: License holders that wish to proceed with a merger or cross-shareholding transaction must seek approval from the ERC at least 60 days in advance. Supporting documents that the concerned parties must submit include objectives and plan, market analysis, and an impact assessment report. In approving the merger, the ERC will reflect on potential harm to competition, the effect on the license holders’ contractual parties, and impact on stability of energy and public interests, as well as whether it is a merger with a failing company.
  • Pretransaction reporting requirement: Energy license holders only need to submit a premerger report (instead of a preapproval application) to the ERC if the license holder can prove that after the merger is completed, the total assets, revenue, or value of assets acquired from other license holders will not exceed the threshold prescribed by the regulation.

These requirements also apply to a merger by a license holder’s controlling entity, parent entity, subsidiary, or affiliate.

Implications

The announcement of these four new competition regulations by the ERC signals its intention to combat anticompetitive behaviors and market concentration. This also presages more stringent enforcement by the ERC to relieve competition concerns and ensure free and fair competition in the energy industry. License holders and business operators active in the relevant energy business markets should be prepared for stricter controls and more stringent duties to seek approval from, notify, or report to the ERC as a result of the triggering events prescribed in these ERC regulations.

For more information on internal competition compliance, or any aspect of the regulatory regime for energy businesses in Thailand, please contact Kobkit Thienpreecha at [email protected], Supasit Boonsanong at [email protected], Nutavit Sirikan at [email protected], or Kobchai Nitungkorn at [email protected].

Related Professionals

Industries

Energy

Practices

Antitrust and Competition

Location

RELATED INSIGHTS​ 

December 4, 2024
Thailand Legal Basics, a valuable primer for foreign investors, explores all aspects of living and doing business in Thailand. Written by specialists at Tilleke & Gibbins in Bangkok, it is the only comprehensive English-language guide to the Thai legal system with a focus on the concerns of foreign business and investment.
Read More
August 12, 2024
With the growing prominence of ESG (Environmental, Social, and Governance) factors, businesses in Vietnam are increasingly recognizing their importance in driving global demand, societal impact, and economic value. A comprehensive acknowledgment of ESG-related legal requirements is critical for investors and companies operating in Vietnam to meet stakeholder expectations and ensure compliance. Our guide provides a basic overview of the rapidly evolving ESG landscape in Vietnam, covering a range of key issues for companies doing business in the country: What is ESG, and what does the ESG legal framework look like in Vietnam? Who needs to follow ESG regulations in Vietnam? What are the benefits of ESG compliance? How can enterprises enhance ESG best practices in Vietnam? Please click on the link below to view the full article.
Read More
June 6, 2024
On January 18, 2024, Vietnam’s National Assembly passed a new Land Law (“Land Law 2024”) that is scheduled to take effect on January 1, 2025, replacing the current Land Law 2013. To mitigate challenges faced by the real estate market, in late May 2024, the government proposed amendments to the Land Law that would move the effective date up five months, to August 1, 2024, pending approval by the National Assembly. One of the key sectors to be impacted by the Land Law 2024 is the energy sector, which requires large land areas for power plants and infrastructure, especially given Vietnam’s 2050 net zero emissions commitment. Below are highlights of how the new Land Law 2024 will affect Vietnam’s energy sector. Annual payment of land rental Under the Land Law 2013, investors implementing energy projects (e.g., solar power projects) are entitled to choose to lease land with either (i) an annual rental payment or (ii) a single upfront payment for the entire term of use. Under the Land Law 2024, these investors are only allowed to use land in the form of an annual rental payment. As the annual land rental is calculated in five-year cycles, based on the land price table decided by the state, this new restriction means that investors in energy projects will face an additional risk of a sudden increase in land rental, disrupting their financial planning. Investors using land sites leased with annual rental payments are also not allowed to mortgage their land-use rights, but can only mortgage assets attached to the land, at credit institutions licensed to operate in Vietnam. Accordingly, this may affect the ability of energy projects to obtain financing during the development stage, because they no longer have assets that can be mortgaged. Obtaining land Under the Land Law 2024,
Read More
June 4, 2024
Thailand’s Department of Mineral Fuels (DMF) is in the process of preparing a notification that will open the application period for onshore petroleum exploration and production rights in the country’s 25th bidding round. The 25th round of bidding will cover nine petroleum blocks, including the northeastern areas (blocks L1/66, L2/66, L3/66, L4/66, L5/66, L7/66, and L9/66) and central areas (blocks L6/66 and L8/66). The DMF estimates that application submissions will commence around the middle of 2024, and the successful bidder will be announced at the end of the same year. Based on previous rounds of bidding, applicants must meet the following key criteria: The applicant is a company with the purpose of carrying out petroleum exploration and production; The applicant commands the necessary assets, machinery, equipment, tools, and specialists to explore for, produce, sell, and dispose of petroleum; The applicant has not abandoned its operations under a concession or been subject to revocation of a concession in Thailand; and None of its personnel, shareholders, directors, or authorized directors is listed as a person who has abandoned its operations under a concession, or has been subject to revocation of a concession in Thailand. If the applicant does not itself possess all the qualifications under (2) above, it must have another government-approved company that possesses all the qualifications under (2) and has a capital or management relationship with the applicant, and the applicant must supply guarantees that the company will make available to the applicant all necessary assets, machinery, equipment, tools, and specialists for the applicant to explore for, produce, sell, and dispose of petroleum. Companies with a vested interest in petroleum exploration and production in Thailand must remain vigilant for updates. The DMF is expected to provide an update and more details on the bidding very soon. For more details
Read More