| Date of issue: | 07/08/2018 | Effective date: | 07/08/2018 |
| Document type: | Official document | Status: | Still in effect |
| MINISTRY OF INDUSTRY AND TRADE | SOCIAL REPUBLIC OF VIETNAM Independence - Freedom - Happiness |
| Number: 6219/BCT-KH Regarding guidance on implementation according to the provisions of Decree No. 09/2018/ND-CP |
Hanoi, date 07 month 8 year 2018 |
Dear: IPIC Law Firm Limited
(169 Nguyen Ngoc Vu Street, Trung Hoa Ward, Cau Giay District, Hanoi)
In response to the request from IPIC Law Firm Limited, forwarded by the Government Office via Official Letters No. 6982/VPCP-ĐMDN and No. 7308/VPCP-ĐMDN, regarding guidance on implementation according to the provisions of Decree No. 09/2018/NĐ-CP, the Ministry of Industry and Trade has the following opinion:
1. Regarding wholesale and retail sales
a) As stipulated in Clause 6, Article 3 of Decree No. 09/2018/ND-CP dated January 15, 2018: "Wholesale refers to the activity of selling goods to wholesalers, retailers, and other businesses or organizations; it does not include retail sales."
According to the regulations, selling goods to other traders or organizations that do not use the goods for wholesale, retail, or consumption purposes (such as when businesses or cooperatives purchase goods for direct use in production activities or service provision according to their registered investment goals and business lines: a cooperative registered in the garment manufacturing industry purchasing sewing machines for installation and production, buying fabric and raw materials to produce garments for sale; a business registered in construction services purchasing construction materials and supplies for construction and installation for awarded projects; a business registered in food and beverage services purchasing food and beverages to process into dishes or meals with or without beverages to serve customers on-site or for takeaway; a branch of a licensed foreign trader purchasing materials, components, and computers for assembly and installation according to contracts signed with customers...) is considered wholesale.
b) As stipulated in Clause 1, Article 3 of the Law on Protection of Consumer Rights: “1. A consumer is a person who buys and uses goods and services for personal, family, or organizational consumption and living purposes.”
According to Clause 7, Article 3 of Decree No. 09/2018/ND-CP: "Retail is the activity of selling goods to individuals, households, and other organizations for consumption purposes."
According to the regulations above, organizations are also eligible buyers of goods for consumption purposes. Selling goods to organizations for their own consumption and living expenses (for example, representative offices of foreign traders, businesses purchasing food, beverages, stationery, etc., to serve the regular consumption and living needs of their staff) without directly using them in production or service delivery according to registered investment objectives and business lines, constitutes retail sales.
c) According to Clause a, Point 1, Article 5 of Decree No. 09/2018/ND-CP, in order to exercise the right to distribute goods at the retail level, economic organizations with foreign investment capital must go through the procedure of obtaining a Business License. According to Clause 2, Article 5 of Decree No. 09/2018/ND-CP, in order to establish a retail establishment, economic organizations with foreign investment capital must go through the procedure of obtaining a Retail Establishment License.
Foreign-invested economic organizations shall base their procedures for obtaining business licenses and retail establishment licenses on the above regulations.
d) The guidance in this section corrects the guidance of the Ministry of Industry and Trade in Official Letter No. 4248/BCT-KH dated May 30, 2018.
2. Regarding the method of filling out the Business License and Retail Establishment License.
a) Decree No. 09/2018/ND-CP does not mandate that foreign-invested economic organizations declare the list of goods for which they exercise retail distribution rights by HS code, name, or chapter. Determining the scope of the goods for business and declaring the list by HS code, name, or chapter… is the right of the investor or economic organization based on their own balance of needs, capacity and business plan, financial ability and plan, scale of retail outlets, type of retail outlet (if a retail outlet is proposed), and convenience for the economic organization in carrying out customs clearance and tax declaration procedures in accordance with relevant tax, financial, and customs regulations.
The licensing authority (Department of Industry and Trade) records the details of goods in the Business License and Retail Establishment License based on the application dossier of the economic organization, in accordance with the results of the Department of Industry and Trade's review and assessment of the fulfillment of licensing conditions, the suitability of the business plan and financial plan to the scale of business, the scale of the retail establishment, the type of retail establishment (if the economic organization with foreign investment capital applies to establish a retail establishment), the specific characteristics of the goods intended for business, etc., in accordance with the provisions of Decree No. 09/2018/ND-CP.
The Ministry of Industry and Trade provides this guidance for the company's information./.