Competition Regulations 2007

No. S 348

Competition Act

(Chapter 50B)

Competition Regulations 2007

In exercise of the powers conferred by section 93 of the Competition Act, the Competition Commission of Singapore, with the approval of the Minister for Trade and Industry, hereby makes the following Regulations:

PART I

PRELIMINARY

Citation and commencement

1.  These Regulations may be cited as the Competition Regulations 2007 and shall come into operation on 1st July 2007.

Definitions

2.  In these Regulations, unless the context otherwise requires —

“confidential information” means —

(a) commercial information the disclosure of which would, or might, in the opinion of the Commission, significantly harm the legitimate business interests of the undertaking to which it relates;

(b) information relating to the private affairs of an individual the disclosure of which would, or might, in the opinion of the Commission, significantly harm the individual’s interests; or

(c) information the disclosure of which would, in the opinion of the Commission, be contrary to the public interest;

“internal document” means —

(a) a document —

(i) produced by the Commission or any other public authority; or

(ii) exchanged —

(A) between the Commission and any other public authority; or

(B) between such other public authorities; or

(b) a document produced by any person from time to time retained under a contract for services by the Commission or any other public authority in connection with such a contract;

“public authority” includes —

(a) a court or tribunal and any person or body exercising functions of a public nature; and

(b) in any country or territory outside Singapore, a court or tribunal and any person or body which appears to the Commission to be exercising functions of a public nature;

“working day” means any day which is not a Saturday, Sunday or a public holiday;

“writing” includes text that is —

(a) transmitted by electronic means;

(b) received in legible form; and

(c) capable of being used for subsequent reference.

PART II

COMMITMENTS

Applications to vary, substitute or release commitments

3.—(1)  A party who provided a commitment may apply to the Commission to vary, substitute or release the commitment.

(2)  The applicant shall —

(a) within 2 working days of the application under paragraph (1), give notice that the application has been made —

(i) to all other parties to the anticipated merger in respect of which the commitment was given and of whom he knows; or

(ii) to all other parties involved in the merger in respect of which the commitment was given and of whom he knows,

as the case may be; and

(b) provide a copy of such notice to the Commission within 2 working days from the date of the notification.

(3)  An application under paragraph (1) shall be made to the Commission in such manner as the Commission may specify on the Commission’s Internet website in an online location accessible to the public from time to time.

(4)  The Commission may, at any time after the application under paragraph (1) is made, require the applicant to submit such other information (including any document) as the Commission thinks fit.

(5)  Where, before the Commission makes a decision on an application under paragraph (1), there is any material change to any information submitted to the Commission (whether as contained in the application, under paragraph (4) or otherwise), the applicant shall give notice of that change to the Commission without delay.

(6)  Without prejudice to the generality of the Commission’s power to refuse an application under paragraph (1), the Commission may refuse the application if —

(a) the applicant does not comply with paragraph (2);

(b) the application is not made in accordance with paragraph (3);

(c) the Commission has reasonable grounds for suspecting that any information submitted to the Commission (whether as contained in the application, under paragraph (4) or otherwise) is incomplete, false or misleading in a material particular;

(d) the Commission’s request for any information under paragraph (4) is not complied with; or

(e) the Commission has reasonable grounds for believing that there has been a material change in any information submitted to the Commission (whether as contained in the application, under paragraph (4) or otherwise), and such change has not been notified to the Commission under paragraph (5).

Consultation and decisions in respect of commitments

4.—(1)  Where the Commission proposes to consult any person prior to accepting, varying, substituting or releasing a commitment, it shall —

(a) give notice to that person; and

(b) state in that notice the action the Commission proposes to take, its reasons for proposing such action and the period within which that person may make written representations to the Commission on these matters.

(2)  Where, at the end of the period referred to in paragraph (1)(b), no written representations on the matters referred to in the notice have been made by the person to whom the notice was given, the Commission may proceed with its decision in respect of the commitment.

(3)  Where, pursuant to an application under regulation 3, the Commission has made a decision not to vary, substitute or release a commitment, it —

(a) shall give notice of the decision to —

(i) the applicant; and

(ii) the parties to the anticipated merger or parties involved in the merger, as the case may be, whom the applicant notified under regulation 3(2)(a),

stating the facts on which it bases the decision and its reasons for the decision; and

(b) may publish the decision.

(4)  Where the Commission has made a decision to vary, substitute or release a commitment, it shall —

(a) give notice of the decision to —

(i) the applicant; and

(ii) the parties to the anticipated merger or the parties involved in the merger, as the case may be, whom the applicant notified under regulation 3(2)(a); and

(b) publish —

(i) the decision; and

(ii) in the case of a decision to vary or substitute a commitment, the varied or substituted commitment.

PART III

GUIDANCE

Giving guidance

5.—(1)  Where an application has been made to the Commission for guidance under section 43 or 50 of the Act and the Commission gives guidance to the applicant, it shall state the facts on which the guidance is based and its reasons for the guidance.

(2)  The Commission may determine an application for guidance by exercising its discretion not to give guidance, whereupon the Commission shall give notice to the applicant of that fact.

Further action after guidance referred to in section 45(1) or 52(1) of Act

6.  If, having given guidance of the kind referred to in section 45(1) or 52(1) of the Act, the Commission proposes to take further action under Part III of the Act, it shall consult the applicant to whom it gave the guidance.

PART IV

PROPOSED DECISIONS IN RESPECT OF INVESTIGATIONS

Proposed infringement decision

7.—(1)  Where the Commission has conducted an investigation into any agreement or conduct and the Commission proposes to make a decision that the section 34 prohibition or the section 47 prohibition has been infringed, as the case may be, the Commission shall —

(a) give notice of this to each person whom the Commission considers is or was a party to the agreement, or is or was engaged in the conduct, as the case may be, which the Commission considers has infringed a prohibition; and

(b) state in such notice which prohibition the Commission considers has been infringed.

(2)  Where the Commission has conducted an investigation into any anticipated merger or merger and the Commission proposes to make a decision that —

(a) an anticipated merger, if carried into effect, will infringe the section 54 prohibition; or

(b) a merger has infringed the section 54 prohibition,

the Commission shall give notice of this to each person whom the Commission considers is or was a party to the anticipated merger or party involved in the merger, as the case may be.

(3)  Regulation 8 shall apply to a notice given by the Commission under this regulation.

Notices, access to file and representations

8.—(1)  Every notice referred to in regulation 7 shall state —

(a) the facts on which the Commission relies and its reasons for the proposed decision;

(b) the period within which a relevant person may make representations to the Commission, which shall be in the form of a written statement, identifying the information contained in the notice which that relevant person considers the Commission should treat as confidential information and explaining why he considers the Commission should treat such information as confidential information;

(c) the period within which a relevant person may submit a written statement to the Commission on the matters referred to in the notice; and

(d) where the proposed decision relates to an anticipated merger or a merger, that any party to the anticipated merger or any party involved in the merger, as the case may be, may apply to the Minister within 14 days of the date of the notice for the anticipated merger or merger, as the case may be, to be exempted from the section 54 prohibition on the ground of any public interest consideration.

(2)  The Commission shall give a relevant person a reasonable opportunity to inspect the documents in the Commission’s file that relate to the matters referred to in the notice given to that relevant person, except that the Commission may withhold any document —

(a) to the extent that it contains confidential information; or

(b) which is an internal document.

(3)  Where, in his written statement on the matters referred to in a notice given to a relevant person, that relevant person requests to make oral representations to the Commission on such matters, the Commission may give that relevant person a reasonable opportunity to make such oral representations.

(4)  Where, at the end of the period referred to in paragraph (1)(c), no written statement on the matters referred to in a notice given to a relevant person have been made by that relevant person, the Commission may proceed with its proposed decision in the absence of such statement.

(5)  Where the Commission has given a relevant person a reasonable opportunity to make oral representations under paragraph (3) but no oral representations have been made, the Commission may proceed with its proposed decision in the absence of such representations.

(6)  Nothing in paragraph (1)(b) shall be construed as restricting the application of regulation 28(2), (3), (5) and (6).

(7)  In this regulation, “relevant person” means a person to whom notice is required to be given under regulation 7.

PART V

DECISIONS FOLLOWING APPLICATIONS AND INVESTIGATIONS

Notice of decision

9.—(1)  Where the Commission has made a decision that the section 34 prohibition has been infringed or a decision that the section 47 prohibition has been infringed, it shall —

(a) give notice of the decision to —

(i) where an application was made under section 44 or 51 of the Act, the applicant and those persons whom the applicant identified in the application as being the other parties to the agreement, or the other persons, if any, engaging in the conduct, to which the application relates, as the case may be;

(ii) where no application was made under section 44 or 51 of the Act, each person whom the Commission considers is or was a party to the agreement, or is or was engaged in the conduct, which is the subject of the decision,

stating the facts on which the Commission bases the decision and the Commission’s reasons for making the decision; and

(b) publish the decision.

(2)  Where the Commission has made a decision that there are no grounds for action in respect of —

(a) an agreement because the conditions of the section 34 prohibition are not met or because the agreement is excluded under section 35 of the Act or exempted under section 36 of the Act; or

(b) any conduct because the conditions of the section 47 prohibition are not met or because the conduct is excluded under section 48 of the Act,

the Commission —

(i) shall, without delay, give notice of the decision to —

(A) where the decision was made following an application under section 44 or 51 of the Act, the applicant and those persons whom the applicant identified in the application as being the other parties to the agreement, or the other persons, if any, engaging in the conduct, to which the application relates, as the case may be; and

(B) where no application under section 44 or 51 of the Act was made —

(BA) any person whom the Commission considers is or was a party to the agreement, or is or was engaged in conduct, against whom any of the powers of investigation in the Act have been exercised; and

(BB) such other person as the Commission deems appropriate,

stating the facts on which the Commission bases the decision and the Commission’s reasons for making the decision; and

(ii) may publish the decision.

(3)  Where the Commission has made a decision that an anticipated merger, if carried into effect, will infringe the section 54 prohibition, or a decision that a merger has infringed the section 54 prohibition, it shall —

(a) give notice of the decision to —

(i) where an application was made under section 57 or 58 of the Act, the applicant and those persons whom the applicant identified in the application as being the other parties to the anticipated merger or the other parties involved in the merger, as the case may be, to which the application relates;

(ii) where no application was made under section 57 or 58 of the Act, each person whom the Commission considers is or was a party to the anticipated merger or party involved in the merger, as the case may be, which is the subject of the decision,

stating the facts on which the Commission bases the decision and the Commission’s reasons for making the decision; and

(b) publish the decision.

(4)  Where the Commission has made a decision that an anticipated merger, if carried into effect, will not infringe the section 54 prohibition or that a merger has not infringed the section 54 prohibition because —

(a) the conditions of the section 54 prohibition will not be or are not met;

(b) the anticipated merger, if carried into effect, will be, or the merger is, as the case may be, excluded under section 55 of the Act;

(c) the anticipated merger, if carried into effect, or the merger, as the case may be, is exempted from the section 54 prohibition on the ground of any public interest consideration under section 57(3), 58(3) or 68(3) of the Act; or

(d) a commitment has been accepted by the Commission under section 60A of the Act,

the Commission —

(i) shall, without delay, give notice of the decision to —

(A) where the decision was made following an application under section 57 or 58 of the Act, the applicant and those persons whom the applicant identified in the application as being the other parties to the anticipated merger or the other parties involved in the merger, as the case may be, to which the application relates; and

(B) where no application under section 57 or 58 of the Act was made —

(BA) any person whom the Commission considers is or was a party to the anticipated merger or party involved in the merger, as the case may be, against whom any of the powers of investigation under the Act have been exercised; and

(BB) such other person as the Commission deems appropriate,

stating the facts on which the Commission bases the decision and the Commission’s reasons for making the decision;

(ii) shall, in the case of a decision under paragraph (4)(d), publish the decision and commitment; and

(iii) may, in the case of a decision under paragraph (4)(a), (b) or (c), publish the decision.

(5)  The Commission may determine an application for a decision under section 44, 51, 57 or 58 of the Act by exercising its discretion not to give a decision, whereupon the Commission shall give notice to the applicant of that fact.

Further action after decision

10.  If, having made a decision of the kind referred to in section 46(1), 53(1), 59(1) or 60(1) of the Act following an application under section 44, 51, 57 or 58 of the Act, as the case may be, or a decision of the kind referred to in section 60B(1) of the Act, the Commission proposes to take further action under Part III of the Act, the Commission shall consult —

(a) where a decision was made following an application, the applicant and those persons whom the applicant identified in the application as being —

(i) the other parties to the agreement which is the subject of the decision;

(ii) the other persons, if any, engaging in the conduct which is the subject of the decision;

(iii) the other parties to the anticipated merger which is the subject of the decision; or

(iv) the other parties involved in the merger which is the subject of the decision,

as the case may be; or

(b) where no application under section 57 or 58 of the Act was made in respect of a decision of the kind referred to in section 60B(1) of the Act, each person whom the Commission considers is or was —

(i) a party to the anticipated merger which is the subject of the decision; or

(ii) a party involved in the merger which is the subject of the decision,

as the case may be.

Application for extension of validity period

11.—(1)  An application under section 57(8) of the Act for an extension of the validity period for a decision referred to in regulation 9(4) in respect of an anticipated merger shall be made to the Commission in such manner as the Commission may specify on the Commission’s Internet website in an online location accessible to the public from time to time.

(2)  The applicant shall —

(a) within 2 working days of the application under paragraph (1), give notice to all other parties to the anticipated merger of whom he knows that the application has been made; and

(b) provide a copy of such notice to the Commission within 2 working days from the date of the notification.

(3)  The Commission may, at any time after the application under paragraph (1) is made, require the applicant to submit such other information (including any document) as the Commission thinks fit.

(4)  Where, before the Commission makes a decision on an application under paragraph (1), there is any material change to any information submitted to the Commission (whether as contained in the application, under paragraph (3) or otherwise), the applicant shall give notice of that change to the Commission without delay.

(5)  The Commission may, on receiving an application under paragraph (1) —

(a) grant the applicant an extension of the validity period for such period and subject to such conditions as it thinks fit; or

(b) refuse the application.

(6)  Without prejudice to the generality of the Commission’s power under paragraph (5) to refuse an application, the Commission may refuse the application if —

(a) the application is not made in accordance with paragraph (1);

(b) the applicant does not comply with paragraph (2);

(c) the Commission’s request for any information under paragraph (3) is not complied with;

(d) the Commission has reasonable grounds for suspecting that any information submitted to the Commission (whether as contained in the application, under paragraph (3) or otherwise) is incomplete, false or misleading in a material particular; or

(e) the Commission has reasonable grounds for believing that there has been a material change in any information submitted to the Commission (whether as contained in the application, under paragraph (3) or otherwise), and such change has not been notified to the Commission under paragraph (4).

(7)  The Commission may, at any time before the end of an extension of the validity period —

(a) revoke or otherwise terminate the extension if it has reasonable grounds for suspecting that any information submitted to the Commission (whether as contained in the application, under paragraph (3) or otherwise) is incomplete, false or misleading in a material particular;

(b) terminate the extension if the Commission has reasonable grounds for believing that there has been a material change in any information submitted to the Commission (whether as contained in the application, under paragraph (3) or otherwise), and such change has not been notified to the Commission under paragraph (4); or

(c) terminate the extension if the applicant contravenes any condition imposed by the Commission under paragraph (5)(a).

(8)  Before revoking or terminating an extension of the validity period under paragraph (7), the Commission shall give notice to the applicant and the other parties to the anticipated merger.

(9)  Any termination of the extension of the validity period under paragraph (7) shall take effect on a date specified by the Commission which may be earlier than the date of the notice given under paragraph (8), except that —

(a) in the case of a termination under paragraph (7)(b), the date shall not be earlier than the date on which the material change in information occurred; and

(b) in the case of a termination under paragraph (7)(c), the date shall not be earlier than the date on which the condition was contravened.

 

Made this 27th day of June 2007.

LAM CHUAN LEONG

Chairman,
Competition Commission of Singapore.

[CCS/100/210/06; AG/LEG/SL/50B/2005/3 Vol. 1]