1. First of all, it is necessary to study and look up information on conditional business lines:
It is stipulated in the Resolution No.51/2001/QH10, dated December 25, 2001, of the National Assembly on amendments and supplements to some articles of the 1992 Constitution of Vietnam: “Organizations and individuals of all economic sectors are allowed to produce and trade in industries and trades unprohibited by law; for long-term development, cooperation, equality, and competition according to the law.”.
The 2013 Constitution stipulates that everyone has the right to freely conduct business in industries and occupations not prohibited by law.
Accordingly, all organizations and individuals have the right to conduct conditional business lines by law.
Clause 9, Article 3 of the Law on Investment stipulates that business investment conditions mean those that must be satisfied by an individual or organization upon making business investment in conditional business lines.
Thus, organizations and individuals that want to do business in conditional business lines must fully satisfy the conditions for business investment.
Currently, the list of conditional business lines and the business investment conditions are published on the National Business Registration Portal at the following link:
https://dangkytinhdoanh.gov.vn/vn/Pages/Nganhnghedaututinhdoanh.aspx. Organizations and individuals can conveniently look up relevant regulations in their respective fields of interest.
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Clause 6, Article 7 of the Law on Investment in 2020 stipulates that business investment conditions to be fulfilled are those specified in:
- Licenses;
- Certificates;
- Credentials;
- Written confirmation or written approval;
- Other requirements that must be satisfied by individuals and business entities to conduct business investment activities without obtaining written confirmation from a competent authority.
2. Register conditional business lines at for business registration agencies
The Enterprise Law 2020 and its guiding documents do not stipulate that organizations and individuals registering for conditional business lines must provide documents proving approval of business conditions when applying for business registration.
When registering conditional business lines, organizations and individuals must be writing business lines by Article 7 of Decree No.1, dated January 4, 2021, of the Government on enterprise registration.
3. Reminders to enterprises doing business conditional business lines
Enterprises are obliged to satisfy all business conditions when conducting conditional business lines and maintain those conditions throughout business operations as prescribed by law.
Specialized agencies are responsible for the management of conditional business lines, business lines restricted to foreign investors, and inspection of enterprises’ fulfillment of conditions following regulations of specialized laws. (Clause 8, Article 7 of Decree No. 01/2021/ND-CP). Therefore, organizations and individuals carry out administrative procedures with competent agencies to obtain the licenses, Certificates, Written confirmation, or written approval. When the business investment conditions are other requirements which do not require any written certification of the competent agency, organizations, and individuals shall conduct research, implement, and maintain the requirements and do not need to obtain permission from competent agencies.
In case of temporary suspension of business in a conditional business line, the organization or individual shall carry out the order and procedures for business suspension with the competent authority as per specialized laws. For example, a licensed securities company carries out procedures to suspend securities operations under Article 209 of Decree No. 155/2020/ND-CP dated December 31, 2020, of the Government detailing the implementation of a number of articles of the Securities Law.
Organizations and individuals shall carry out the order and procedures for terminating their conditional business lines as per regulations of specialized laws in case of termination of conditional business. At the same time, they need to notify the business registration agency of the amendments and supplements to business registration lines according to regulations. For example: Enterprises granted with mineral exploration licenses shall carry out procedures for termination of mineral mining licenses and mineral exploration activities under the provisions of the Law on Minerals. (Point c, Clause 2, Article 58). They also need to notify the provincial Business Registration Office of the change in business lines according to Decree No. 01/2021/ND-CP.
4. Issues for consideration
After granting an enterprise registration certificate to an enterprise which registers conditional business lines, the provincial Business Registration Office shall send information to the competent authorities for coordination in monitoring and management of enterpises.
According to the provisions of Clause 2, Article 16 of the Joint Circular No. 04/2015/TTLT-BKHTD-BTC-BNV dated May 28, 2015, of the Minister of Planning and Investment, the Minister of Finance, the Minister of Home Afairs on the Model Regulation on coordination between provincial functional agencies in post-registration state management of enterprises:
“2. Functional agencies managing conditional business lines shall notify in writing to Planning and Investment Departments in the following cases:
a/ Revoking, withdrawing, and suspending the use of certificates of eligibility, practice certificates or other written certifications and approvals that have been granted to the enterprises for conducting conditional business;
b/ Requesting the business registration agency to order the enterprises to suspend the conditional business line that does not satisfy all business conditions.”
However, sending notices to the Department of Planning and not so much attention has been paid to Investment.
In 2020, 23/49 localities reported handling 205 enterprises with violations in terms of conditional business lines.
In 2021, 20/52 localities reported handling 584 enterprises violating conditional business lines at the request of specialized management agencies.
Accordingly, in the coming time, it is necessary to strengthen state management coordination in business management of conditional business lines.