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PART 3 COMPETITION
Division 1 — General
Application of Part
33.—(1) Despite the fact that —
(a) an agreement referred to in section 34 has been entered into outside Singapore;
(b) any party to such agreement is outside Singapore;
(c) any undertaking abusing the dominant position referred to in section 47 is outside Singapore;
(d) an anticipated merger will be carried into effect outside Singapore;
(e) a merger referred to in section 54 has taken place outside Singapore;
(f) any party to an anticipated merger or any party involved in a merger is outside Singapore; or
(g) any other matter, practice or action arising out of such agreement, such dominant position, an anticipated merger or a merger is outside Singapore,
this Part applies to such party, agreement, abuse of dominant position, anticipated merger or merger if (as the case may be) —
(h) such agreement infringes or has infringed the section 34 prohibition;
(i) such abuse infringes or has infringed the section 47 prohibition;
(j) such anticipated merger, if carried into effect, will infringe the section 54 prohibition; or
(k) such merger infringes or has infringed the section 54 prohibition.
[23/2007]
(2) Insofar as this Part applies to an industry or a sector of industry that is subject to the regulation and control of another regulatory authority —
(a) the exercise of powers by that other regulatory authority must not be construed as derogating from the exercise of powers by the Commission; and
(b) the exercise of powers by the Commission must not be construed as derogating from the exercise of powers by that other regulatory authority.
(3) The Minister may make regulations for the purpose of coordinating the exercise of powers by the Commission under this Part and the exercise of powers by any other regulatory authority referred to in subsection (2), and may, in particular, make regulations to provide for the procedure to be followed —
(a) in determining in a particular case or category of cases whether the Commission should exercise its powers under this Part or the other regulatory authority should exercise its powers; and
(b) where the Commission and the other regulatory authority may exercise their respective powers concurrently or conjunctively.
(4) Nothing in this Part applies to any activity carried on by, any agreement entered into or any conduct on the part of —
(a) the Government;
(b) any statutory body; or
(c) any person acting on behalf of the Government or that statutory body (as the case may be) in relation to that activity, agreement or conduct.
(5) Despite subsection (4), this Part applies to —
(a) such statutory body or person acting on behalf of such statutory body; or
(b) such activity carried on, agreement entered into or conduct engaged in, by a statutory body or person acting on behalf of the statutory body in relation to such activity, agreement or conduct,
as the Minister may, by order in the Gazette, prescribe.
(6) In this section, “statutory body” means a body corporate established by or under any written law.
Division 2 — Agreements, etc., preventing, restricting or distorting competition
Agreements, etc., preventing, restricting or distorting competition
34.—(1) Subject to section 35, agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within Singapore are prohibited unless they are exempt in accordance with the provisions of this Part.
(2) For the purposes of subsection (1), agreements, decisions or concerted practices may, in particular, have the object or effect of preventing, restricting or distorting competition within Singapore if they —
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(3) Any provision of any agreement or any decision which is prohibited by subsection (1) is void on or after 1 January 2006 to the extent that it infringes that subsection.
(4) Unless the context otherwise requires, a provision of this Act which is expressed to apply to, or in relation to, an agreement is to be read as applying, with the necessary modifications, equally to, or in relation to, a decision by an association of undertakings or a concerted practice.
(5) Subsection (1) applies to agreements, decisions and concerted practices implemented before, on or after 1 January 2006.
Excluded agreements
35. The section 34 prohibition does not apply to such matter as may be specified in the Third Schedule.
Block exemptions
36.—(1) If agreements which fall within a particular category of agreements are, in the Commission’s opinion, likely to be agreements referred to in section 41, the Commission may recommend that the Minister make an order specifying that category for the purposes of this section.
(2) The Minister may make an order giving effect to such a recommendation —
(a) in the form in which the recommendation is made; or
(b) subject to such modifications as the Minister considers appropriate.
(3) An order made under this section is referred to in this Part as a block exemption order.
(4) An agreement which falls within a category specified in a block exemption order is exempt from the section 34 prohibition.
(5) An exemption under this section is called in this Part a block exemption.
Block exemption orders
37.—(1) A block exemption order may impose conditions or obligations subject to which a block exemption has effect.
(2) A block exemption order may provide —
(a) that breach of a condition imposed by the order has the effect of cancelling the block exemption in respect of an agreement as from such date as the Commission may specify;
(b) that if there is a failure to comply with an obligation imposed by the order, the Commission may, by written notice, cancel the block exemption in respect of the agreement as from such date as the Commission may specify; and
(c) that if the Commission considers that a particular agreement is not one to which section 41 applies, it may cancel the block exemption in respect of that agreement as from such date as the Commission may specify.
(3) A block exemption order may provide for a block exemption to have effect from a date earlier than that on which the order is made.
(4) A block exemption order may provide that the order ceases to have effect at the end of a specified period.
(5) In this section, “specified” means specified in a block exemption order.
Opposition to block exemptions
38.—(1) A block exemption order may provide that a party to an agreement which does not qualify for the block exemption created by the order, but satisfies specified criteria, may notify the Commission of the agreement for the purposes of subsection (2).
(2) An agreement which is notified under any provision included in a block exemption order by virtue of subsection (1) is treated, as from the end of the notice period, as falling within a category specified in a block exemption order unless the Commission —
(a) is opposed to it being so treated; and
(b) gives written notice to the party concerned of its opposition before the end of that period.
(3) If the Commission gives notice of its opposition under subsection (2), the notification under subsection (1) is treated as a notification under section 44.
(4) In this section —
“notice period” means such period as may be specified with a view to giving the Commission sufficient time to consider whether to oppose under subsection (2);
“specified” means specified in a block exemption order.
Procedure for block exemptions
39.—(1) Before making a recommendation under section 36(1), the Commission must —
(a) publish details of its proposed recommendation in such a way as the Commission thinks most suitable for bringing it to the attention of those likely to be affected; and
(b) consider any representations made to the Commission regarding its proposed recommendation.
(2) If the Minister proposes to give effect to such a recommendation subject to modifications, the Minister must inform the Commission of the proposed modifications and take into account any comments made by the Commission.
Variation and revocation of block exemption orders
40.—(1) If, in the opinion of the Commission, it is appropriate to vary or revoke a block exemption order, the Commission may make a recommendation to that effect to the Minister.
(2) Section 39 applies to any proposed recommendation under subsection (1).
(3) Where there has been no recommendation under subsection (1), the Minister must, before exercising the Minister’s power to vary or revoke a block exemption order —
(a) inform the Commission of the proposed variation or revocation; and
(b) take into account any comments made by the Commission.
Criteria for block exemptions
41. Section 36 applies to any agreement which contributes to —
(a) improving production or distribution; or
(b) promoting technical or economic progress,
but which does not —
(c) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
(d) afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the goods or services in question.
Requests for Commission to examine agreements
42.—(1) Sections 43 and 44 provide for an agreement to be examined by the Commission on the application of a party to the agreement who thinks that it may infringe the section 34 prohibition.
(2) The Minister may make regulations to provide —
(a) for the procedure to be followed —
(i) by any person making an application under subsection (1); and
(ii) by the Commission, in considering such an application; and
(b) as to the application of sections 43 to 46 and the procedure referred to in paragraph (a), with such modifications (if any) as may be prescribed, in cases where the Commission —
(i) has given a direction withdrawing an exclusion; or
(ii) is considering whether to give such a direction.
Notification for guidance
43.—(1) A party to an agreement who applies for the agreement to be examined under this section must —
(a) notify the Commission of the agreement; and
(b) apply to it for guidance.
(2) On an application under this section, the Commission may give the applicant guidance as to whether or not, in its view, the agreement is likely to infringe the section 34 prohibition.
(3) If the Commission considers that the agreement is likely to infringe the section 34 prohibition if it is not exempt, its guidance may indicate whether the agreement is likely to be exempt from the prohibition under a block exemption.
(4) If an agreement to which the section 34 prohibition applies has been notified to the Commission under this section, no penalty may be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period —
(a) beginning with the date on which the notification was given; and
(b) ending with such date as may be specified in a written notice given to the applicant by the Commission when the application has been determined.
(5) The date specified in a notice under subsection (4)(b) must not be earlier than the date on which the notice is given.
Notification for decision
44.—(1) A party to an agreement who applies for the agreement to be examined under this section must —
(a) notify the Commission of the agreement; and
(b) apply to it for a decision.
(2) On an application under this section, the Commission may make a decision as to —
(a) whether the section 34 prohibition has been infringed; and
(b) if it has not been infringed, whether that is —
(i) because of the effect of an exclusion;
(ii) because the agreement is exempt from the prohibition; or
(iii) because a commitment has been accepted pursuant to section 60A(2).
[15/2018]
(3) If an agreement to which the section 34 prohibition applies has been notified to the Commission under this section, no penalty shall be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period —
(a) beginning with the date on which the notification was given; and
(b) ending with such date as may be specified in a written notice given to the applicant by the Commission when the application has been determined.
(4) The date specified in a notice under subsection (3)(b) must not be earlier than the date on which the notice is given.
Effect of guidance
45.—(1) This section applies to an agreement if the Commission has determined an application under section 43 by giving guidance that —
(a) the agreement is unlikely to infringe the section 34 prohibition, regardless of whether or not it is exempt; or
(b) the agreement is likely to be exempt under a block exemption.
(2) The Commission must not take any further action in relation to the section 34 prohibition with respect to an agreement to which this section applies, unless —
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
(b) it has reasonable grounds for suspecting that the information on which it based its guidance was incomplete, false or misleading in a material particular;
(c) one of the parties to the agreement applies to it for a decision under section 44 with respect to the agreement; or
(d) a complaint about the agreement has been made to it by a person who is not a party to the agreement.
[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 34 prohibition by an agreement to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —
(a) it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the agreement will infringe the section 34 prohibition; and
(c) it gives written notice to the party on whose application the guidance was given that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —
(a) on which it based its guidance; and
(b) which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Effect of decision that section 34 prohibition has not been infringed
46.—(1) This section applies to an agreement if the Commission has determined an application under section 44 by making a decision that the agreement has not infringed the section 34 prohibition.
(2) The Commission must not take any further action in relation to the section 34 prohibition with respect to the agreement unless —
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
(b) it has reasonable grounds for suspecting that the information on which it based its decision was incomplete, false or misleading in a material particular.
[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 34 prohibition by an agreement to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —
(a) it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the agreement will infringe the section 34 prohibition; and
(c) it gives written notice to the party on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —
(a) on which it based its decision; and
(b) which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Division 3 — Abuse of dominant position
Abuse of dominant position
47.—(1) Subject to section 48, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in any market in Singapore is prohibited.
(2) For the purposes of subsection (1), conduct may, in particular, constitute such an abuse if it consists in —
(a) predatory behaviour towards competitors;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.
(3) In this section, “dominant position” means a dominant position within Singapore or elsewhere.
Excluded cases
48. The section 47 prohibition does not apply to such matter as may be specified in the Third Schedule.
Requests for Commission to consider conduct
49.—(1) Sections 50 and 51 provide for conduct of a person to be considered by the Commission on the application of that person who thinks the conduct may infringe the section 47 prohibition.
(2) The Minister may make regulations to provide for the procedure to be followed —
(a) by any person making an application under subsection (1); and
(b) by the Commission, in considering such an application.
Notification for guidance
50.—(1) A person who applies for conduct to be considered under this section must —
(a) notify the Commission of the conduct; and
(b) apply to it for guidance.
(2) On an application under this section, the Commission may give the applicant guidance as to whether or not, in its view, the conduct is likely to infringe the section 47 prohibition.
Notification for decision
51.—(1) A person who applies for conduct to be considered under this section must —
(a) notify the Commission of the conduct; and
(b) apply to it for a decision.
(2) On an application under this section, the Commission may make a decision as to —
(a) whether the section 47 prohibition has been infringed; and
(b) if it has not been infringed, whether that is —
(i) because of the effect of an exclusion; or
(ii) because a commitment has been accepted pursuant to section 60A(3).
[15/2018]
Effect of guidance
52.—(1) This section applies to conduct if the Commission has determined an application under section 50 by giving guidance that the conduct is unlikely to infringe the section 47 prohibition.
(2) The Commission must not take any further action in relation to the section 47 prohibition with respect to the conduct to which this section applies, unless —
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
(b) it has reasonable grounds for suspecting that the information on which it based its guidance was incomplete, false or misleading in a material particular; or
(c) a complaint about the conduct has been made to it.
[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 47 prohibition by conduct to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —
(a) it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the conduct will infringe the section 47 prohibition; and
(c) it gives written notice to the undertaking on whose application the guidance was given that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —
(a) on which it based its guidance; and
(b) which was provided to it by an undertaking engaging in the conduct,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Effect of decision that section 47 prohibition has not been infringed
53.—(1) This section applies to conduct if the Commission has determined an application under section 51 by making a decision that the conduct has not infringed the section 47 prohibition.
(2) The Commission must not take any further action in relation to the section 47 prohibition with respect to the conduct unless —
(a) it has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
(b) it has reasonable grounds for suspecting that the information on which it based its decision was incomplete, false or misleading in a material particular.
[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 47 prohibition by conduct to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —
(a) it takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the conduct will infringe the section 47 prohibition; and
(c) it gives written notice to the undertaking on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —
(a) on which it based its decision; and
(b) which was provided to it by an undertaking engaging in the conduct,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Division 4 — Mergers
Mergers
54.—(1) Subject to section 55, mergers that have resulted, or may be expected to result, in a substantial lessening of competition within any market in Singapore for goods or services are prohibited.
[23/2007]
(2) For the purposes of this Part, a merger occurs if —
(a) 2 or more undertakings, previously independent of one another, merge;
(b) one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings; or
(c) the result of an acquisition by one undertaking (the first undertaking) of the assets (including goodwill), or a substantial part of the assets, of another undertaking (the second undertaking) is to place the first undertaking in a position to replace or substantially replace the second undertaking in the business or, as appropriate, the part concerned of the business in which that undertaking was engaged immediately before the acquisition.
[23/2007]
(3) For the purposes of this Part, control is, in relation to an undertaking, regarded as existing if, by reason of rights, contracts or any other means, or any combination of rights, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the undertaking and, in particular, by —
(a) ownership of, or the right to use all or part of, the assets of an undertaking; or
(b) rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.
[23/2007]
(4) For the purposes of this Part, control is acquired by any person or other undertaking if that person or undertaking —
(a) becomes a holder of the rights or contracts, or entitled to use the other means, referred to in subsection (3); or
(b) although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.
[23/2007]
(5) The creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity constitutes a merger falling within subsection (2)(b).
[23/2007]
(6) In determining whether influence of the kind referred to in subsection (3) is capable of being exercised, regard must be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made.
[23/2007]
(7) For the purposes of this Part, a merger is not to be deemed to occur if —
(a) the person acquiring control is a receiver or liquidator acting as such or is an underwriter acting as such;
(b) all of the undertakings involved in the merger are, directly or indirectly, under the control of the same undertaking;
(c) control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy; or
(d) control is acquired by an undertaking referred to in subsection (8) in the circumstances specified in subsection (9).
[23/2007]
(8) The undertaking referred to in subsection (7)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others.
[23/2007]
(9) The circumstances referred to in subsection (7)(d) are that —
(a) the control concerned is constituted by the undertaking’s holding, on a temporary basis, securities acquired in another undertaking; and
(b) any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists —
(i) is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities; and
(ii) is not for the purpose of determining the manner in which any activity of the other undertaking, being an activity that could affect competition in markets for goods or services in Singapore, is carried on.
[23/2007]
(10) In subsection (9), “specified period” means —
(a) the period of 12 months from the date on which control of the other undertaking was acquired; or
(b) if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Commission determines and specifies with respect to that case.
[23/2007]
Excluded mergers
55. The section 54 prohibition does not apply to any merger specified in the Fourth Schedule.
[23/2007]
Confidential advice by Commission on anticipated mergers
55A.—(1) A party to an anticipated merger may apply to the Commission for its advice as to whether the view of the Commission is that the anticipated merger, if carried into effect, is likely to infringe the section 54 prohibition.
[15/2018]
(2) Subject to regulations made under subsection (5), the Commission may issue the advice under subsection (1) if the Commission is satisfied —
(a) that all parties to the anticipated merger intend to carry into effect the anticipated merger;
(b) that no information relating to the anticipated merger is in the public domain at the time that the application under subsection (1) is made; and
(c) if information relating to the anticipated merger enters the public domain after the application under subsection (1) is made, that there are good reasons for the applicant not notifying the Commission of the anticipated merger and not applying to the Commission for its decision, under section 57.
[15/2018]
(3) Despite subsection (2), the Commission may refuse to issue the advice mentioned in subsection (1) if the Commission is of the view that, given the facts and circumstances of the anticipated merger, the parties to the anticipated merger are able to assess whether an application under section 57 in respect of the anticipated merger should be made without the advice.
[15/2018]
(4) Advice issued by the Commission under this section is not binding on the Commission.
[15/2018]
(5) The Minister may make regulations to provide —
(a) that the Commission may issue advice under this section in relation to only such anticipated mergers as are prescribed; and
(b) for the procedure to be followed —
(i) by any party making an application under this section; and
(ii) by the Commission, in considering such an application.
[15/2018]
Requests for Commission to consider anticipated mergers and mergers
56.—(1) Section 57 provides for an anticipated merger to be considered by the Commission on the application of a party to that anticipated merger who thinks the anticipated merger, if carried into effect, may infringe the section 54 prohibition.
[23/2007]
(2) Section 58 provides for a merger to be considered by the Commission on the application of a party involved in that merger who thinks the merger may infringe the section 54 prohibition.
[23/2007]
(3) The Minister may by regulations provide —
(a) that only such anticipated mergers as are prescribed may be notified to the Commission under section 57; and
(b) for the procedure to be followed —
(i) by any party making an application under section 57 or 58; and
(ii) by the Commission, in considering such an application.
[23/2007]
Notification of anticipated merger
57.—(1) A party to an anticipated merger of the relevant type which applies for the anticipated merger to be considered under this section must —
(a) notify the Commission of the anticipated merger; and
(b) apply to it for a decision.
(2) Subject to subsections (3) and (5) and sections 60A(1) and 60B(1), on an application under this section, the Commission may make a decision as to —
(a) whether the section 54 prohibition will be infringed by the anticipated merger, if carried into effect; and
(b) if it will not be infringed, whether it is —
(i) because of the effect of an exclusion which will apply if the anticipated merger is carried into effect;
(ii) because the anticipated merger, if carried into effect, is exempted from the application of the prohibition under subsection (3); or
(iii) because a commitment has been accepted pursuant to section 60A(1).
[23/2007; 15/2018]
(3) Where the Commission proposes to make a decision that the section 54 prohibition will be infringed by an anticipated merger, if carried into effect, the Commission must give written notice to the party who applied for a decision on the anticipated merger and the party may, within 14 days of the date of the notice, apply to the Minister for the anticipated merger, if carried into effect, to be exempted from the section 54 prohibition on the ground of any public interest consideration.
[23/2007]
(4) The decision of the Minister made under subsection (3) is final.
[23/2007]
(5) Where the Minister exempts an anticipated merger under subsection (3), the Commission may make a decision under subsection (2)(b)(ii).
[23/2007]
(6) The Minister may revoke the exemption of an anticipated merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.
[23/2007]
(7) Subject to subsection (8), where the Commission makes a decision that an anticipated merger, if carried into effect, will not infringe the section 54 prohibition, the Commission may, if it thinks fit, state that the decision is valid only for the period it specifies therein.
[23/2007]
(8) Before the expiry of the period referred to in subsection (7), if any, an application may be made by all parties to the anticipated merger who applied to the Commission for a decision on the anticipated merger under this section for that period to be extended.
[23/2007]
(9) Where an application for an anticipated merger to be considered has been made to the Commission in accordance with subsection (1) and the anticipated merger is carried into effect before the Commission makes a decision under subsection (2) in respect thereof, the application relating to the anticipated merger —
(a) may be treated by the Commission as if it were an application for the resulting merger to be considered made in accordance with section 58; and
(b) the Commission may make a decision under section 58 in respect of the resulting merger.
[23/2007]
(10) For the purpose of subsection (9), the Commission may make a decision under section 58(2)(b)(ii) (read with section 58(5)) in respect of the merger referred to in subsection (9), even though the exemption was granted by the Minister under subsection (3) in respect of the anticipated merger.
[23/2007]
(11) Despite subsection (9), the Commission may refuse to make any decision in respect of a merger referred to therein and require any party involved in the merger to apply to the Commission for the merger to be considered under section 58(1).
[23/2007]
(12) In this section, “an anticipated merger of the relevant type” means an anticipated merger of the type prescribed by regulations made under section 56(3)(a).
[23/2007]
Notification of merger
58.—(1) A party involved in a merger which applies for the merger to be considered under this section must —
(a) notify the Commission of the merger; and
(b) apply to it for a decision.
[23/2007]
(2) Subject to subsections (3) and (5) and sections 60A(1) and 60B(1), on an application under this section, the Commission may make a decision as to —
(a) whether the section 54 prohibition has been infringed; and
(b) if it has not been infringed, whether that is —
(i) because of the effect of an exclusion;
(ii) because the merger is exempted from the prohibition under subsection (3); or
(iii) because a commitment has been accepted pursuant to section 60A(1).
[23/2007; 15/2018]
(3) Where the Commission proposes to make a decision that the section 54 prohibition has been infringed, the Commission must give written notice to —
(a) the party who applied for a decision on the merger; or
(b) in a case where section 57(9) applies, the party who applied for a decision on the anticipated merger (which was carried into effect) or, where that party no longer exists, the merged entity,
and the party or merged entity so notified by the Commission may, within 14 days of the date of the notice, apply to the Minister for the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration.
[23/2007]
(4) The decision of the Minister made under subsection (3) is final.
[23/2007]
(5) Where the Minister exempts a merger under subsection (3), the Commission may make a decision under subsection (2)(b)(ii).
[23/2007]
(6) The Minister may revoke the exemption of a merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.
[23/2007]
(7) A reference in any provision of this Act to an application or a notification under section 58 includes a reference to an application or a notification under section 57 that the Commission treats as an application or a notification under section 58 pursuant to section 57(9).
[23/2007]
Interim measures in relation to notifications of anticipated mergers and mergers
58A.—(1) If, in respect of an application under section 57 or 58, the Commission has reasonable grounds for suspecting that —
(a) the section 54 prohibition will be infringed by an anticipated merger, if carried into effect; or
(b) the section 54 prohibition has been infringed by a merger,
but has not completed its consideration of the matter, and the Commission considers that it is necessary for it to act under this section —
(c) for the purpose of preventing any action that may prejudice —
(i) the consideration of the anticipated merger or merger; or
(ii) the giving of any direction under section 69; or
(d) as a matter of urgency for the purpose —
(i) of preventing serious, irreparable damage to a particular person or category of persons; or
(ii) of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(2) Before giving a direction under this section, the Commission must —
(a) give written notice to the person to whom it proposes to give the direction; and
(b) give that person an opportunity to make representations.
[23/2007]
(3) A notice under subsection (2) must indicate the nature of the direction which the Commission is proposing to give and its reasons for wishing to give it.
[23/2007]
(4) A direction given under this section has effect while subsection (1) applies, but may be replaced if the circumstances permit by a direction under section 69.
[23/2007]
(5) Sections 69(2)(c)(i) and (d)(i) and 85 also apply to directions given under this section.
[23/2007]
Effect of decision that anticipated merger, if carried into effect, will not infringe section 54 prohibition
59.—(1) This section applies to an anticipated merger in respect of which the Commission has determined an application under section 57 by making a decision that the anticipated merger, if carried into effect, will not infringe the section 54 prohibition.
[23/2007]
(2) The Commission must not take any further action in relation to the section 54 prohibition with respect to the anticipated merger (including where the anticipated merger is carried into effect, or if the Commission’s decision is valid for a specified period, where the anticipated merger is carried into effect within that period) unless —
(a) it has reasonable grounds for suspecting that any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or
(b) it has reasonable grounds for suspecting that a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.
[23/2007]
(3) Action that may be taken in respect of the circumstances referred to in subsection (2) may include the revocation of the decision that the anticipated merger, if carried into effect, will not infringe the section 54 prohibition.
[23/2007]
(4) No penalty may be imposed under this Part in respect of any infringement of the section 54 prohibition by the anticipated merger to which this section applies, if carried into effect or, where the Commission’s decision is valid for a specified period, if carried into effect within that period.
[23/2007]
(5) The Commission may remove the immunity given by subsection (4) if —
(a) it takes action under this Part with respect to one of the circumstances referred to in subsection (2);
(b) it considers that it is likely that the anticipated merger, if carried into effect, or the resulting merger will infringe the section 54 prohibition; and
(c) it gives written notice to the party on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
[23/2007]
(6) If the Commission has reasonable grounds for suspecting that —
(a) any information on which it based its decision (which may include information on the basis of which it accepted a commitment), and which was provided to it by a party to the anticipated merger, was incomplete, false or misleading in a material particular; or
(b) a party who provided a commitment has failed to adhere to one or more of the terms of the commitment,
the date specified in a notice under subsection (5)(c) may be earlier than the date on which the notice is given.
[23/2007]
(7) Where —
(a) the Commission has made a decision that an anticipated merger, if carried into effect, will not infringe the section 54 prohibition; and
(b) the merger resulting from a purported carrying into effect of the anticipated merger is materially different from the anticipated merger,
nothing in this section prevents the Commission from taking any action in relation to the section 54 prohibition in respect of the merger.
[23/2007]
Effect of decision that merger has not infringed section 54 prohibition
60.—(1) This section applies to a merger if the Commission has determined an application under section 58 by making a decision that the merger has not infringed the section 54 prohibition.
[23/2007]
(2) The Commission must not take any further action in relation to the section 54 prohibition with respect to the merger unless —
(a) it has reasonable grounds for suspecting that any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or
(b) it has reasonable grounds for suspecting that a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.
[23/2007]
(3) Action that may be taken in respect of the circumstances referred to in subsection (2) may include the revocation of the decision that the merger has not infringed the section 54 prohibition.
[23/2007]
(4) No penalty may be imposed under this Part in respect of any infringement of the section 54 prohibition by a merger to which this section applies.
[23/2007]
(5) The Commission may remove the immunity given by subsection (4) if —
(a) it takes action under this Part with respect to the merger in one of the circumstances mentioned in subsection (2);
(b) it considers that it is likely that the merger will infringe the section 54 prohibition; and
(c) it gives written notice to —
(i) the party on whose application the decision was made; or
(ii) in a case where section 57(9) applies, the party who applied for a decision on the anticipated merger (which was carried into effect) or, where that party no longer exists, the merged entity,
that it is removing the immunity as from the date specified in its notice.
[23/2007]
(6) If the Commission has reasonable grounds for suspecting that —
(a) any information on which it based its decision (which may include information on the basis of which it accepted a commitment), and which was provided to it by a party involved in the merger, was incomplete, false or misleading in a material particular; or
(b) a party who provided a commitment has failed to adhere to one or more of the terms of the commitment,
the date specified in a notice under subsection (5)(c) may be earlier than the date on which the notice is given.
[23/2007]
Division 4A — Commitments
Commitments
60A.—(1) The Commission may, at any time before making a decision pursuant to an application under section 57 or 58 or an investigation under section 62(1)(c) or (d) as to whether —
(a) the section 54 prohibition will be infringed by an anticipated merger, if carried into effect; or
(b) the section 54 prohibition has been infringed by a merger,
accept from such person as it thinks appropriate, a commitment to take or refrain from taking such action as it considers appropriate for the purpose of remedying, mitigating or preventing the substantial lessening of competition or any adverse effect which —
(c) may be expected to result from the anticipated merger, if carried into effect; or
(d) has resulted or may be expected to result from the merger.
[23/2007]
(2) The Commission may, at any time before making a decision pursuant to an application under section 44 or an investigation under section 62(1)(a) as to whether the section 34 prohibition has been infringed by an agreement, accept from such person as the Commission thinks appropriate, a commitment to take or refrain from taking such action as the Commission considers appropriate for the purpose of remedying, mitigating or preventing the prevention, restriction or distortion of competition which has resulted or may be expected to result from the agreement.
[15/2018]
(3) The Commission may, at any time before making a decision pursuant to an application under section 51 or an investigation under section 62(1)(b) as to whether the section 47 prohibition has been infringed by any conduct, accept from such person as the Commission thinks appropriate, a commitment to take or refrain from taking such action as the Commission considers appropriate for the purpose of remedying, mitigating or preventing the abuse of a dominant position in a market which has resulted or may be expected to result from the conduct.
[15/2018]
(4) A commitment comes into force on the date specified by the Commission when it is accepted.
[23/2007]
(5) The Commission may, at any time when a commitment is in force, accept —
(a) a variation of the commitment; or
(b) another commitment in substitution,
for the purpose referred to in subsection (1), (2) or (3), whichever is applicable, and any reference to a commitment accepted under any of those subsections includes a reference to a commitment varied or substituted under this subsection.
[23/2007; 15/2018]
(6) A commitment may be released by the Commission where it has reasonable grounds for believing that the commitment is no longer necessary or appropriate for the purpose referred to in subsection (1), (2) or (3), whichever is applicable.
[23/2007; 15/2018]
(7) Before accepting, varying, substituting or releasing a commitment, the Commission must, except in exceptional circumstances, consult with such person as it thinks appropriate.
[23/2007]
Effect of commitments
60B.—(1) Where the Commission has accepted a commitment under section 60A(1), and subject to subsection (4), the Commission must make a decision that —
(a) the section 54 prohibition will not be infringed by an anticipated merger, if carried into effect; or
(b) the section 54 prohibition has not been infringed by a merger,
as the case may be.
[23/2007; 15/2018]
(2) Where the Commission has accepted a commitment under section 60A(2) in relation to an agreement, and subject to subsection (4), the Commission must make a decision that the section 34 prohibition has not been infringed by the agreement.
[15/2018]
(3) Where the Commission has accepted a commitment under section 60A(3) in relation to any conduct, and subject to subsection (4), the Commission must make a decision that the section 47 prohibition has not been infringed by the conduct.
[15/2018]
(4) Nothing in subsection (1), (2) or (3) prevents the Commission from revoking the decision already made, commencing or continuing any investigation, or making a decision or giving a direction, where —
(a) it has reasonable grounds for suspecting that any information on the basis of which it accepted a commitment was incomplete, false or misleading in a material particular; or
(b) it has reasonable grounds for suspecting that a party who provided a commitment has failed to adhere to one or more of the terms of the commitment.
[23/2007; 15/2018]
(5) If the Commission revokes a decision referred to in subsection (1), (2) or (3), the commitment is treated, unless otherwise stated, as released from the date of that revocation.
[23/2007; 15/2018]
(6) The Commission may review the effectiveness of commitments it has accepted under section 60A in such circumstances as it considers appropriate.
[23/2007]
Division 5 — Enforcement
Guidelines on enforcement of Part
61.—(1) The Commission may, with a view to enabling any person to order the person’s affairs in compliance with the provisions of this Part, cause to be published in the Gazette guidelines indicating the manner in which the Commission will interpret, and give effect to, the provisions of this Part.
(2) For the purpose of preparing any guidelines under subsection (1), the Commission may consult with such persons as it thinks appropriate.
(3) Where the guidelines would apply to an industry or a sector of industry that is subject to the regulation and control of another regulatory authority, the Commission must, in preparing those guidelines, consult with that regulatory authority.
(4) Guidelines published under this section are not binding on the Commission.
Power to require documents or information
61A.—(1) Where the Commission —
(a) has reasonable grounds for suspecting that any feature, or combination of features, of a market in Singapore for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in Singapore; or
(b) in considering an application for decision filed pursuant to section 44, 51, 57 or 58, has reasonable grounds for suspecting that —
(i) the section 34 prohibition has been infringed by any agreement;
(ii) the section 47 prohibition has been infringed by any conduct;
(iii) the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(iv) the section 54 prohibition has been infringed by any merger,
the Commission may, by written notice to any person, require the person to produce to the Commission a specified document, or to provide the Commission with specified information, which the Commission considers relates to any matter relevant to such purposes.
[23/2007]
(2) A notice under subsection (1) must indicate —
(a) the purpose for which the specified document or specified information is required by the Commission; and
(b) the nature of the offences created by sections 75 to 78.
[23/2007]
(3) The Commission may specify in the notice —
(a) the time and place at which any document is to be produced or any information is to be provided; and
(b) the manner and form in which it is to be produced or provided.
[23/2007]
(4) The power under this section to require a person (P) to produce a document includes the power —
(a) if the document is produced —
(i) to take copies of it or extracts from it; and
(ii) to require P, or any person who is a present or past officer of P, or is or was at any time employed by P, to provide an explanation of the document; or
(b) if the document is not produced, to require P to state, to the best of P’s knowledge and belief, where it is.
[23/2007]
(5) For the purposes of subsection (1)(a), any reference to a feature of a market in Singapore for goods or services is construed as a reference to —
(a) the structure of the market concerned or any aspect of that structure;
(b) any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or
(c) any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services,
and, in this subsection, “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.
[23/2007]
(6) In subsections (1) and (2), “specified” means —
(a) specified or described in the notice; or
(b) falling within a category which is specified or described in the notice.
[23/2007]
Power to investigate
62.—(1) The Commission may conduct an investigation if there are reasonable grounds for suspecting that —
(a) the section 34 prohibition has been infringed by any agreement;
(b) the section 47 prohibition has been infringed by any conduct;
(c) the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(d) the section 54 prohibition has been infringed by any merger.
[23/2007]
(2) For the purpose of subsection (1), the Commission may appoint an inspector to conduct the investigation.
Power when conducting investigation
63.—(1) For the purposes of an investigation under section 62, the Commission or the inspector may, by written notice to any person, require that person to produce to the Commission or the inspector a specified document, or to provide the Commission or the inspector with specified information, which the Commission or the inspector considers relates to any matter relevant to the investigation.
(2) A notice under subsection (1) must indicate —
(a) the subject matter and purpose of the investigation; and
(b) the nature of the offences created by sections 75 to 78.
(3) The Commission or the inspector may also specify in the notice —
(a) the time and place at which any document is to be produced or any information is to be provided; and
(b) the manner and form in which it is to be produced or provided.
(4) The power under this section to require a person (P) to produce a document includes the power —
(a) if the document is produced —
(i) to take copies of it or extracts from it; and
(ii) to require P, or any person who is a present or past officer of P, or is or was at any time employed by P, to provide an explanation of the document; or
(b) if the document is not produced, to require P to state, to the best of P’s knowledge and belief, where it is.
(5) For the purposes of an investigation under section 62, a person who is empowered to enter any premises under section 64(1), or who is authorised under a warrant under section 65 to enter the premises specified in the warrant, may —
(a) orally examine any individual on the premises who appears to be acquainted with the facts and circumstances relevant to the investigation that is being carried out; and
(b) require the individual to answer any question relating to the investigation.
[15/2018]
(6) Any information provided verbally by an individual under subsection (1), or any answer given or statement made by an individual under subsection (5), must —
(a) be reduced to writing;
(b) be read over to the individual;
(c) if the individual does not understand English, be interpreted in a language that the individual understands; and
(d) after correction (if any), be signed by the individual.
[15/2018]
(7) In subsection (1), “specified” means —
(a) specified, or described, in the notice; or
(b) falling within a category which is specified, or described, in the notice.
Power to enter premises without warrant
64.—(1) In connection with an investigation under section 62 —
(a) any officer of the Commission who is authorised by the Commission to do so (an investigating officer) and such other officers or persons as the Commission has authorised in writing to accompany the investigating officer (authorised person); and
(b) any inspector and such other person as the inspector may require,
may enter any premises.
[23/2007]
(2) An investigating officer or inspector, and an authorised person or person required by the inspector respectively, must not enter any premises in the exercise of the powers under this section unless the investigating officer or the inspector (as the case may be) has given the occupier of the premises a written notice which —
(a) gives at least 2 working days’ notice of the intended entry;
(b) indicates the subject matter and purpose of the investigation; and
(c) indicates the nature of the offences created by sections 75 to 78.
[23/2007]
(3) Subsection (2) does not apply —
(a) if the investigating officer or inspector has reasonable grounds for suspecting that the premises are, or have been, occupied by an undertaking which is being investigated in relation to —
(i) an agreement referred to in section 34;
(ii) conduct referred to in section 47; or
(iii) an anticipated merger, or a merger referred to in section 54; or
(b) if the investigating officer or inspector has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
[23/2007]
(4) Where subsection (3) applies, the power of entry conferred by subsection (1) must be exercised —
(a) in the case of an investigating officer and any authorised person, upon production of —
(i) evidence of the investigating officer’s authorisation and the authorisation of every authorised person accompanying him or her; and
(ii) a document containing the information referred to in subsection (2)(b) and (c); and
(b) in the case of an inspector and any person required by the inspector, upon production of —
(i) evidence of the inspector’s appointment; and
(ii) a document containing the information referred to in subsection (2)(b) and (c).
[23/2007]
(5) An investigating officer, an authorised person, an inspector or a person required by the inspector entering any premises under this section may —
(a) take with him or her such equipment as appears to him or her to be necessary;
(b) require any person on the premises —
(i) to produce any document which the investigating officer, authorised person, inspector or person required by the inspector considers relates to any matter relevant to the investigation; and
(ii) if the document is produced, to provide an explanation of it;
(c) require any person to state, to the best of the person’s knowledge and belief, where any document mentioned in paragraph (b)(i) is to be found;
(d) take copies of, or extracts from, any document which is produced;
(e) require any information which is stored in any electronic form and is accessible from the premises and which he or she considers relates to any matter relevant to the investigation, to be produced in a form —
(i) in which it can be taken away; and
(ii) in which it is visible and legible; and
(f) take any step which appears to be necessary for the purpose of preserving or preventing interference with any document which he or she considers relates to any matter relevant to the investigation.
[23/2007; 15/2018]
(6) The power to require any person on the premises to produce any document under subsection (5)(b) includes the power to require that person to produce the document at such time and place, and in such form and manner, as may be required by the investigating officer, authorised person, inspector or person required by the inspector.
[15/2018]
Power to enter premises under warrant
65.—(1) The Commission or any inspector may apply to a court for a warrant and the court may issue such a warrant if it is satisfied that —
(a) there are reasonable grounds for suspecting that there are on any premises documents —
(i) the production of which has been required under section 63 or 64; and
(ii) which have not been produced as required;
(b) there are reasonable grounds for suspecting that —
(i) there are on any premises documents which the Commission or the inspector has power under section 63 to require to be produced; and
(ii) if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or
(c) an investigating officer, an authorised person, an inspector or a person required by the inspector has attempted to enter the premises in the exercise of his or her powers under section 64 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.
[23/2007]
(2) A warrant under this section must authorise a named officer, and —
(a) in the case of an investigation conducted by the Commission, such other officers or persons as the Commission has authorised in writing to accompany the named officer; and
(b) in the case of an investigation conducted by an inspector, such other persons as the inspector may require,
to do all or any of the following:
(c) to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
(d) to search any person on those premises if there are reasonable grounds for believing that that person has in his or her possession any document, equipment or article which has a bearing on the investigation;
(e) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (the relevant kind);
(f) to take possession of any document appearing to be of the relevant kind if —
(i) such action appears to be necessary for preserving the document or preventing interference with it; or
(ii) it is not reasonably practicable to take copies of the document on the premises;
(g) to take any other step which appears to be necessary for the purpose mentioned in paragraph (f)(i);
(h) to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his or her knowledge and belief, where it may be found;
(i) to require any person on the premises to produce any document of the relevant kind at the time and place, and in the form and manner, required by the named officer or other officer or person whom the Commission has authorised in writing to accompany the named officer, or by any other person required under paragraph (b) by an inspector;
(j) to require any information which is stored in any electronic form and is accessible from the premises and which he or she considers relates to any matter relevant to the investigation, to be produced in a form —
(i) in which it can be taken away; and
(ii) in which it is visible and legible;
(k) to remove from those premises for examination any equipment or article which relates to any matter relevant to the investigation.
[23/2007; 15/2018]
(3) If, in the case of a warrant under subsection (1)(b), the court is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant must also authorise the actions mentioned in subsection (2) to be taken in relation to any such document.
(4) Where possession of any document is taken under subsection (2)(f) or (3), the named officer may, at the request of the person from whom possession of the document was taken, provide such person with a copy of the document.
(5) A named officer may allow any equipment or article which has a bearing on an investigation and which may be removed from any premises for examination under subsection (2)(k) to be retained on those premises subject to such conditions as the named officer may require.
[23/2007]
(6) Any person who fails to comply with any condition imposed under subsection (5) shall be guilty of an offence.
(7) A warrant issued under this section must indicate —
(a) the subject matter and purpose of the investigation; and
(b) the nature of the offences created by sections 75 to 78,
and continues in force until the end of the period of one month beginning from the day on which it is issued.
(8) The powers conferred by this section must not be exercised except upon production of a warrant issued under this section.
(9) Any person entering premises by virtue of a warrant under this section may take with him or her such equipment as appears to the person to be necessary.
(10) If there is no one at the premises when the named officer proposes to execute such a warrant, the named officer must, before executing it —
(a) take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
(b) if the occupier is informed, afford the occupier or the occupier’s legal or other representative a reasonable opportunity to be present when the warrant is executed.
(11) If the named officer is unable to inform the occupier of the intended entry, the named officer must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(12) On leaving any premises which the named officer has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he or she found them.
(13) Any document of which possession is taken under subsection (2)(f) may be retained for a period of 3 months.
(14) In this section —
“named officer” means —
(a) an officer of the Commission named in the warrant; or
(b) the inspector named in the warrant,
as the case may be;
“occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.
Self-incrimination and savings for professional legal advisers
66.—(1) A person is not excused from disclosing any information or document to the Commission or (as the case may be) to an investigating officer, such officer or person as the Commission has authorised in writing to accompany the investigating officer, an inspector or a person required by the inspector, under a requirement made of him or her under any provision of this Act on the ground that the disclosure of the information or document might tend to incriminate him or her.
[23/2007]
(2) Where a person claims, before making a statement disclosing information that he or she is required to under any provision of this Act to the Commission or (as the case may be) to an investigating officer, such officer or person as the Commission has authorised in writing to accompany the investigating officer, an inspector or a person required by the inspector, that the statement might tend to incriminate him or her, that statement —
(a) is not admissible in evidence against him or her in criminal proceedings other than proceedings under Part 5; but
(b) is, for the avoidance of doubt, admissible in evidence in civil proceedings, including proceedings under this Act.
[23/2007]
(3) Nothing in this Part —
(a) compels a professional legal adviser to disclose or produce a privileged communication, or a document or other material containing a privileged communication, made by or to him or her in that capacity; or
(b) authorises the taking of any such document or other material which is in his or her possession.
(4) A professional legal adviser who refuses to disclose the information or produce the document or other material referred to in subsection (3) is nevertheless obliged to give the name and address (if the adviser knows them) of the person to whom, or by or on behalf of whom, that privileged communication was made.
Interim measures
67.—(1) If the Commission —
(a) has reasonable grounds for suspecting that the section 34 prohibition or the section 47 prohibition has been infringed but has not completed its investigations into the matter; and
(b) considers that it is necessary for it to act under this section as a matter of urgency for the purpose —
(i) of preventing serious, irreparable damage to a particular person or category of persons; or
(ii) of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(2) If the Commission has reasonable grounds for suspecting that the section 54 prohibition —
(a) will be infringed by an anticipated merger, if carried into effect; or
(b) has been infringed by a merger,
but has not completed its investigations into the matter, and considers that it is necessary for it to act under this section —
(c) for the purpose of preventing any action that may prejudice —
(i) the investigations; or
(ii) the giving of any direction under section 69; or
(d) as a matter of urgency for the purpose —
(i) of preventing serious, irreparable damage to a particular person or category of persons; or
(ii) of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(3) Before giving a direction under this section, the Commission must —
(a) give written notice to the person to whom it proposes to give the direction; and
(b) give that person an opportunity to make representations.
(4) A notice under subsection (3) must indicate the nature of the direction which the Commission is proposing to give and its reasons for wishing to give it.
(5) A direction given under this section has effect while subsection (1) or (2) (as the case may be) applies, but may be replaced if the circumstances permit by a direction under section 69.
[23/2007]
(6) In the case of a suspected infringement of the section 34 prohibition, sections 69(2)(a) and 85 also apply to directions given under this section.
(7) In the case of a suspected infringement of the section 47 prohibition, sections 69(2)(b) and 85 also apply to directions given under this section.
(8) In the case of a suspected infringement of the section 54 prohibition by an anticipated merger, if carried into effect, or a merger, sections 69(2)(c)(i) and (d)(i) and 85 also apply to directions given under this section.
[23/2007]
Decision of Commission upon completion of investigation
68.—(1) Where —
(a) after considering the statements made, or documents or articles produced, in the course of an investigation conducted by it under this Part; or
(b) in the case of an investigation conducted by an inspector, after considering the report of the inspector,
the Commission proposes to make a decision that the section 34 prohibition has been infringed by any agreement, the section 47 prohibition has been infringed by any conduct, the section 54 prohibition will be infringed by any anticipated merger, if carried into effect, or the section 54 prohibition has been infringed by any merger, the Commission must —
(c) give written notice to the person likely to be affected by such decision; and
(d) give such person an opportunity to make representations to the Commission.
[23/2007]
(2) Subject to subsections (3) and (5), upon considering any representation made to the Commission under subsection (1)(d), the Commission may, as it thinks fit, make a decision that —
(a) the section 34 prohibition has been infringed by any agreement;
(b) the section 47 prohibition has been infringed by any conduct;
(c) the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(d) the section 54 prohibition has been infringed by any merger.
[23/2007]
(3) Where —
(a) in relation to an anticipated merger, the Commission proposes to make a decision that the section 54 prohibition will be infringed by the anticipated merger, if carried into effect; or
(b) in relation to a merger, the Commission proposes to make a decision that the section 54 prohibition has been infringed by the merger,
and the Commission has given written notice under subsection (1)(c) to the parties to the anticipated merger or the parties involved in the merger (as the case may be) any such party may, within 14 days of the date of the notice, apply to the Minister for the anticipated merger, if carried into effect, or the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration.
[23/2007]
(4) The decision of the Minister under subsection (3) is final.
(5) Where the Minister exempts an anticipated merger or a merger under subsection (3), the Commission may make a decision that —
(a) the section 54 prohibition will not be infringed by the anticipated merger, if carried into effect; or
(b) the section 54 prohibition has not been infringed by the merger.
[23/2007]
(6) The Minister may revoke the exemption of an anticipated merger or a merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.
[23/2007]
Enforcement of decision of Commission
69.—(1) Where the Commission has made a decision that —
(a) any agreement has infringed the section 34 prohibition;
(b) any conduct has infringed the section 47 prohibition;
(c) any anticipated merger, if carried into effect, will infringe the section 54 prohibition; or
(d) any merger has infringed the section 54 prohibition,
the Commission may give to such person as it thinks appropriate such directions as it considers appropriate to bring the infringement or the circumstances referred to in paragraph (c) to an end and, where necessary, requiring that person to take such action as is specified in the direction to remedy, mitigate or eliminate any adverse effects of such infringement or circumstances and to prevent the recurrence of such infringement or circumstances.
[23/2007]
(2) A direction referred to in subsection (1) may, in particular, include provisions —
(a) where the decision is that any agreement has infringed the section 34 prohibition, requiring parties to the agreement to modify or terminate the agreement;
(b) where the decision is that any conduct has infringed the section 47 prohibition, requiring the person concerned to modify or cease the conduct;
(c) where the decision is that any anticipated merger, if carried into effect, will infringe the section 54 prohibition —
(i) prohibiting the anticipated merger from being carried into effect;
(ii) requiring any parties to any agreement that is directly related and necessary to the implementation of the merger (which would result from the anticipated merger being carried into effect) to modify or terminate the agreement, even though the agreement is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 45 or 46 (as the case may be) that the agreement is unlikely to infringe, or has not infringed, the section 34 prohibition; and
(iii) requiring any person concerned with any conduct that is directly related and necessary to the implementation of the merger (which would result from the anticipated merger being carried into effect) to modify or cease that conduct, even though the conduct is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 52 or 53 (as the case may be) that the conduct is unlikely to infringe, or has not infringed, the section 47 prohibition;
(d) where the decision is that any merger has infringed the section 54 prohibition —
(i) requiring the merger to be dissolved or modified in such manner as the Commission may direct;
(ii) requiring any parties to any agreement that is directly related and necessary to the implementation of the merger to modify or terminate the agreement, even though the agreement is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 45 or 46 (as the case may be) that the agreement is unlikely to infringe, or has not infringed, the section 34 prohibition; and
(iii) requiring any person concerned with any conduct that is directly related and necessary to the implementation of the merger to modify or cease that conduct, even though the conduct is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 52 or 53 (as the case may be) that the conduct is unlikely to infringe, or has not infringed, the section 47 prohibition;
(e) where the decision is that any agreement has infringed the section 34 prohibition, any conduct has infringed the section 47 prohibition or any merger has infringed the section 54 prohibition, to pay to the Commission such financial penalty in respect of the infringement as the Commission may determine; and
(f) in any case, requiring any party to an agreement that has infringed the section 34 prohibition, any person whose conduct has infringed the section 47 prohibition, any party to an anticipated merger which, if carried into effect, will infringe the section 54 prohibition or any party involved in a merger that has infringed the section 54 prohibition —
(i) to enter such legally enforceable agreements as may be specified by the Commission and designed to prevent or lessen the anti-competitive effects which have arisen;
(ii) to dispose of such operations, assets or shares of such undertaking in such manner as may be specified by the Commission; and
(iii) to provide a performance bond, guarantee or other form of security on such terms and conditions as the Commission may determine.
[23/2007]
(3) For the purpose of subsection (2)(e), the Commission may impose a financial penalty only if it is satisfied that the infringement has been committed intentionally or negligently.
[23/2007]
(4) No financial penalty fixed by the Commission under this section may exceed 10% or such other percentage of such turnover of the business of the undertaking in Singapore for each year of infringement for such period, up to a maximum of 3 years, as the Minister may, by order in the Gazette, prescribe.
(5) The Commission must, in any direction requiring the payment of a financial penalty, specify the date before which the financial penalty is to be paid, being a date not earlier than the end of the period within which an appeal against the direction may be brought under section 71.
(6) The Minister may, by order in the Gazette, prescribe the interest payable on the outstanding amount of any financial penalty imposed under subsection (2)(e) and for payment by instalment (as may be directed by the Commission in its discretion) of any financial penalty imposed under subsection (2)(e).
[4/2010]
Notification
70. The Commission must, within 14 days of its making any decision or direction under this Part, notify any person affected by such decision or direction. |
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