Competition Act 2004

Competition Act 2004 (Now Cap. 50B) (2004)
Parliament of Singapore

related portals: Law of Singapore.

Date of Commencement: 1 January 2005 (Parts I, II, First and Second Schedules) (S 707/2004)(Ministry of Trade and Industry)
Date of Commencement: 1 September 2005 (Part IV) (S 559/2005)
Date of Commencement: 1 September 2005 (Parts III (except Division 4), V, VI, Third Schedule) (S 864/2005)
The uncommenced Part IV and Fourth Schedule are repealed and substituted by sections 8 and 24 of the Competition (Amendment) Act 2007.

3685082Competition Act 2004 (Now Cap. 50B)2004Parliament of Singapore

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REPUBLIC OF SINGAPORE

GOVERNMENT GAZETTE

ACTS SUPPLEMENT

Published by Authority

NO. 44]

FRIDAY, NOVEMBER 19

[2004

First published in the Government Gazette, Electronic Edition, on 18th November 2004 at 5:00 pm.

The following Act was passed by Parliament on 19th October 2004 and assented to by the President on 4th November 2004:—

THE COMPETITION ACT 2004

(No. 46 of 2004)

ARRANGEMENT OF SECTIONS

Section
PART I PRELIMINARY
1.	Short title and commencement
2.	Interpretation
PART II COMPETITION COMMISSION OF SINGAPORE
Division 1—Establishment, incorporation and constitution of Commission
3.	Establishment and incorporation of Competition Commission of Singapore
4.	Common seal
5.	Constitution of Commission
Division 2—Functions, duties and powers of Commission
Section	</noinclude>
6.	Functions and duties of Commission
7.	Powers of Commission
8.	Directions by Minister
9.	Appointment of committees and delegation of powers
Division 3—Provisions relating to staff
10.	Appointment of Chief Executive and other employees, etc.
Division 4—Functions, duties and powers of Commission
11.	Financial year
12.	Annual estimates
13.	Moneys recovered or collected by Commission
14.	Grants-in-aid
15.	Power to borrow
16.	Issue of shares, etc.
17.	Bank account
18.	Application of moneys
19.	Investment
20.	Accounts
21.	Audit of accounts
22.	Powers of auditor
23.	Presentation of financial statements and auditor’s report to Parliament
Division 5—Transfer of property, assets, liabilities and employees
24.	Transfer to Commission of property, assets and liabilities
25.	Transfer of employees
26.	Service rights, etc., of transferred employees to be preserved
27.	No benefits in respect of abolition or reorganisation of office
28.	Existing contracts
29.	Continuation and completion of disciplinary proceedings and other legal proceedings
30.	Misconduct or neglect of duty by employee before transfer
Division 6—General
31.	Annual report
32.	Symbol or representation of Commission
PART III COMPETITION
Division 1—General
33.	Application of Part
Division 2—Agreements, etc., preventing, restricting or distorting competition
34.	Agreements, etc., preventing, restricting or distorting competition
35.	Excluded agreements
36.	Block exemptions
37.	Block exemption orders
38.	Opposition to block exemptions
39.	Procedure for block exemptions
40.	Variation and revocation of block exemption orders
41.	Criteria for block exemptions
42.	Requests for Commission to examine agreements
43.	Notification for guidance
44.	Notification for decision
45.	Effect of guidance
46.	Effect of decision that section 34 prohibition has not been infringed
Division 3—Abuse of dominant position
47.	Abuse of dominant position
48.	Excluded cases
49.	Requests for Commission to consider conduct
50.	Notification for guidance
51.	Notification for decision
52.	Effect of guidance
53.	Effect of decision that section 47 prohibition has not been infringed
Division 4—Mergers
54.	Mergers
55.	Excluded mergers
56.	Requests for Commission to consider merger
57.	Notification for guidance
58.	Notification for decision
59.	Effect of guidance
60.	Effect of decision that section 54 prohibition has not been infringed
Division 5—Enforcement
61.	Guidelines on enforcement of Part
62.	Power to investigate
63.	Power when conducting investigation
64.	Power to enter premises without warrant
65.	Power to enter premises under warrant
66.	Privileged communication
67.	Interim measures
68.	Decision of Commission upon completion of investigation
69.	Enforcement of decision of Commission
70.	Notification
PART IV APPEALS
Division 1—General
71.	Appealable decisions
Division 2—Competition Appeal Board
72.	Competition Appeal Board
73.	Powers and decisions of Board
74.	Appeals to High Court and Court of Appeal
PART V OFFENCES
75.	Refusal to provide information, etc.
76.	Destroying or falsifying documents
77.	False or misleading information
78.	Obstruction of officer of Commission, etc.
79.	No costs or damages or other relief arising from seizure to be recoverable unless seizure without reasonable or probable cause
80.	Powers of enforcement
81.	Offences by bodies corporate, etc.
82.	Jurisdiction of court
83.	General penalty
84.	Composition of offences
PART VI MISCELLANEOUS
85.	Enforcement of directions of Commission in District Court
86.	Rights of private action
87.	Co-operation between Commission and other regulatory authorities on competition matters
88.	Co-operation between Commission and foreign competition bodies
89.	Preservation of secrecy
90.	Protection from personal liability
91.	Public servants
92.	Amendment of Third and Fourth Schedules
93.	Regulations
94.	Transitional provisions
	First Schedule—Constitution and proceedings of Commission
	Second Schedule—Powers of Commission
	Third Schedule—Exclusions from section 34 prohibition and section 47 prohibition
	Fourth Schedule—Exclusions from section 54 prohibition

REPUBLIC OF SINGAPORE

No. 46 of 2004.

I assent.

S R NATHAN,
President.
4th November 2004.

An Act to make provision about competition and the abuse of a dominant position in the market; and to establish the Competition Commission of Singapore, to provide for its functions and powers and for matters connected therewith.

Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows:

PART I
PRELIMINARY

Short title and commencement

1. This Act may be cited as the Competition Act 2004 and shall come into operation on such date as the Minister may, by notification in the Gazette, appoint.

Interpretation

2.—(1) In this Act, unless the context otherwise requires—

“appointed day” means—

(a) in relation to this Act, the date of commencement of this Act; and

(b) in relation to a particular provision of this Act, the date of commencement of that particular provision;

“block exemption” has the meaning assigned to it in section 36(5);

“block exemption order” has the meaning assigned to it in section 36(3);

“Board” means the Competition Appeal Board established under section 72;

“Chairman” means the Chairman of the Commission and includes any temporary Chairman of the Commission;

“Chief Executive” means the Chief Executive of the Commission appointed under section 10 and includes any person acting in that capacity;

“Commission” means the Competition Commission of Singapore established under section 3;

“Deputy Chairman” means the Deputy Chairman of the Commission and includes any temporary Deputy Chairman of the Commission;

“document” includes information recorded in any form;

“goods” includes—

(a) buildings and other structures;

(b) ships, aircraft and hovercraft;

(c) gas and electricity; and

(d) choses in action;

“information” includes estimates and forecasts;

“inspector” means an inspector appointed by the Commission to conduct any investigation under section 62;

“investigating officer” has the meaning assigned to it in section 64(1);

“member” means a member of the Commission;

“merger” means the acquisition or establishment, direct or indirect, by one or more persons or undertakings, whether by purchase or lease of shares or assets, by amalgamation or by combination or otherwise, of control over the whole or a part of a business of a competitor, supplier, customer or other undertaking;

“party involved in a merger” includes the merged entity;

“person” includes any undertaking;

“premises” does not include domestic premises unless—

(a) they are used in connection with the affairs of an undertaking; or

(b) documents relating to the affairs of an undertaking are kept there,

but includes any vehicle;

“public interest consideration” means national or public security, defence and such other considerations as the Minister may, by order published in the Gazette, prescribe;

“section 34 prohibition” means the prohibition referred to in section 34(1);

“section 47 prohibition” means the prohibition referred to in section 47(1);

“section 54 prohibition” means the prohibition referred to in section 54(1);

“service” means a service of any description whether industrial, trade, professional or otherwise;

“undertaking” means any person, being an individual, a body corporate, an unincorporated body of persons or any other entity, capable of carrying on commercial or economic activities relating to goods or services.

(2) The fact that to a limited extent the section 34 prohibition does not apply to an agreement, because of an exclusion provided by or under this Act, does not require those provisions of the agreement to which the exclusion relates to be disregarded when considering whether the agreement infringes the prohibition for other reasons.

(3) For the purposes of this Act, the power to require information, in relation to information recorded otherwise than in a legible form, includes the power to require a copy of it in a legible form.

(4) Any power conferred on any person by this Act to require information includes the power to require any document which he believes may contain that information.

PART II
COMPETITION COMMISSION OF SINGAPORE

Division 1—Establishment, incorporation and constitution of Commission

Establishment and incorporation of Competition Commission of Singapore

3. There is hereby established a body to be known as the Competition Commission of Singapore which shall be a body corporate with perpetual succession and shall, by that name, be capable of—

(a) suing and being sued;

(b) acquiring, owning, holding and developing or disposing of property, both movable and immovable; and

(c) doing and suffering such other acts or things as bodies corporate may lawfully do and suffer.

Common seal

4.—(1) The Commission shall have a common seal and such seal may from time to time be broken, changed, altered or made anew as the Commission thinks fit.

(2) All deeds and other documents requiring the seal of the Commission shall be sealed with the common seal of the Commission.

(3) All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Commission affixed to any document and shall presume that it was duly affixed.

Constitution of Commission

5.—(1) The Commission shall consist of the following members:

(a) a Chairman; and

(b) such other members, not being less than 2 or more than 16, as the Minister may from time to time determine.

(2) The First Schedule shall have effect with respect to the Commission, its members and proceedings.

Division 2—Functions, duties and powers of Commission

Functions and duties of Commission

6.—(1) Subject to the provisions of this Act, the functions and duties of the Commission shall be—

(a) to maintain and enhance efficient market conduct and promote overall productivity, innovation and competitiveness of markets in Singapore;

(b) to eliminate or control practices having adverse effect on competition in Singapore;

(c) to promote and sustain competition in markets in Singapore;

(d) to promote a strong competitive culture and environment throughout the economy in Singapore;

(e) to act internationally as the national body representative of Singapore in respect of competition matters;

(f) to advise the Government or other public authority on national needs and policies in respect of competition matters generally; and

(g) to perform such other functions and discharge such other duties as may be conferred on the Commission by or under any other written law.

(2) In performing the functions and discharging the duties imposed on it by subsection (1), the Commission shall have regard to—

(a) the differences in the nature of various markets in Singapore;

(b) the economic, industrial and commercial needs of Singapore; and

(c) maintaining the efficient functioning of the markets in Singapore.

(3) The Commission may undertake such other functions and duties as the Minister may assign to the Commission and in so doing, the Commission shall be deemed to be fulfilling the purposes of this Act, and the provisions of this Act shall apply to the Commission in respect of such functions and duties.

(4) Nothing in this section shall be construed as imposing on the Commission, directly or indirectly, any form of duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.

Powers of Commission

7.—(1) Subject to the provisions of this Act, the Commission may carry on such activities as appear to the Commission to be advantageous, necessary or convenient for it to carry on for or in connection with the performance of its functions and the discharge of its duties under this Act or any other written law and, in particular, the Commission may exercise any of the powers specified in the Second Schedule.

(2) This section shall not be construed as limiting any power of the Commission conferred by or under any other written law.

(3) The Commission shall furnish the Minister information with respect to its property and activities in such manner and at such times as the Minister may require.

Directions by Minister

8. The Minister may give such general directions, not inconsistent with the provisions of this Act, relating to the policy the Commission is to observe in the exercise of its powers, the performance of its functions and the discharge of its duties as the Minister considers necessary, and the Commission shall give effect to any such directions.

Appointment of committees and delegation of powers

9.—(1) The Commission may, in its discretion, appoint from among its own members or persons who are not members such number of committees as it thinks fit consisting of members or other persons or members and other persons for purposes which, in the opinion of the Commission, would be better regulated and managed by means of such committees.

(2) The Commission may, subject to such conditions or restrictions as it thinks fit, delegate to any such committee or the Chairman, all or any of the powers, functions and duties vested in the Commission by this Act or any other written law, except the powers to make regulations, prescribe or levy dues and rates and borrow money and the power of delegation conferred by this subsection.

(3) The Commission may, subject to such conditions or restrictions as it thinks fit, delegate to any employee of the Commission or any person all or any of the powers, functions and duties vested in the Commission by this Act or any other written law, except the powers to make regulations, prescribe or levy dues and rates and borrow money and the power of delegation conferred by this subsection; and any power, function or duty so delegated may be exercised, performed or discharged by the employee or person in the name and on behalf of the Commission.

(4) The Commission may continue to exercise a power conferred upon it, perform a function or discharge a duty under this Act or any other written law, notwithstanding the delegation of the power, function or duty under this section.

Division 3—Provisions relating to staff

Appointment of Chief Executive and other employees, etc.

10.—(1) The Commission shall, with the approval of the Minister, appoint a Chief Executive on such terms and conditions as the Commission may determine.

(2) The Chief Executive shall—

(a) be known by such designation as the Commission may determine;

(b) be responsible to the Commission for the proper administration and management of the functions and affairs of the Commission in accordance with the policy laid down by the Commission; and

(c) not be removed from office without the consent of the Minister.

(3) The Minister shall consult the Public Service Commission before granting his approval under subsection (1) or before giving his consent under subsection (2)(c).

(4) If the Chief Executive is temporarily absent from Singapore or temporarily incapacitated by reason of illness or for any other reason temporarily unable to discharge his duties, another person may be appointed by the Commission to act in the place of the Chief Executive during any such period of absence from duty.

(5) The Commission may, from time to time, appoint and employ on such terms and conditions as the Commission may determine such officers, employees, consultants and agents as may be necessary for the effective performance of its functions and discharge of its duties.

Division 4—Financial provisions

Financial year

11. The financial year of the Commission shall begin on 1st April of each year and end on 31st March of the succeeding year, except that the first financial year of the Commission shall begin on the appointed day and end on 31st March of the succeeding year.

Annual estimates

12.—(1) The Commission shall, in every financial year, prepare or cause to be prepared and shall adopt annual estimates of income and expenditure of the Commission for the ensuing financial year.

(2) Supplementary estimates may be adopted by the Commission at any of its meetings.

(3) A copy of all annual estimates and supplementary estimates shall, upon their adoption by the Commission, be sent immediately to the Minister.

(4) The Minister may approve or disallow any item or portion of any item shown in the estimates, and shall return the estimates as amended by him to the Commission, and the Commission shall be bound thereby.

(5) Notwithstanding any provision of this section, the Commission may transfer all or any part of moneys assigned to one item of expenditure to any item under the same head of expenditure in any estimates approved by the Minister.

Moneys recovered or collected by Commission

13.—(1) All moneys recovered or charges or composition sums collected under this Act, other than financial penalties, shall be paid into and form part of the moneys of the Commission.

(2) All financial penalties collected under this Act shall be paid into the Consolidated Fund.

Grants-in-aid

14. For the purpose of enabling the Commission to perform its functions and discharge its duties under this Act, the Minister may, from time to time, make grants-in-aid to the Commission of such sums of money, as the Minister may determine, out of moneys to be provided by Parliament.

Power to borrow

15.—(1) For the performance of its functions or discharge of its duties under this Act or any other written law, the Commission may, from time to time, raise loans from the Government or, with the approval of the Minister, raise loans within or outside Singapore from such source as the Minister may direct by—

(a) mortgage, overdraft or other means, with or without security;

(b) charge, whether legal or equitable, on any property vested in the Commission or on any other revenue receivable by the Commission under this Act or any other written law; or

(c) the creation and issue of debentures, bonds or any other instrument as the Minister may approve.

(2) For the purposes of this section, the power to raise loans shall include the power to make any financial agreement whereby credit facilities are granted to the Commission for the purchase of goods, materials or things.

Issue of shares, etc.

16. As a consequence of the vesting of any property, rights or liabilities of the Government in the Commission under this Act, or of any capital injection or other investment by the Government in the Commission in accordance with any written law, the Commission shall issue such shares or other securities to the Minister for Finance as that Minister may, from time to time, direct.

Bank account

17.—(1) The Commission shall open and maintain an account with such bank as the Commission thinks fit.

(2) Every such account shall be operated by such person as may, from time to time, be authorised in that behalf by the Commission.

Application of moneys

18. The moneys of the Commission shall be applied only in payment or discharge of the expenses, obligations and liabilities of the Commissionand in making any payment that the Commission is authorised or required to make.

Investment

19. The Commission may, subject to the general or special direction of the Minister—

(a) invest its moneys in such manner as it thinks fit; and

(b) engage in any financial activity or participate in any financial arrangement for the purpose of managing or hedging against any financial risk that arises or is likely to arise from such investment.

Accounts

20. The Commission shall keep proper accounts and records of its transactions and affairs and shall do all things necessary to ensure that—

(a) all payments out of its moneys are correctly made and properly authorised; and

(b) adequate control is maintained over the assets of, or in the custody of, the Commission and over the expenditure incurred by the Commission.

Audit of accounts

21.—(1) The accounts of the Commission shall be audited by the Auditor-General or such other auditor as may be appointed annually by the Minister in consultation with the Auditor-General (referred to in this Act as the auditor).

(2) A person shall not be qualified for appointment as an auditor under subsection (1) unless he is a public accountant who is registered or deemed to be registered under the Accountants Act (Act 4 of 2004).

(3) The Commission shall, as soon as practicable after the close of each financial year, prepare and submit the financial statements in respect of that year to the auditor who shall audit and report on them.

(4) The auditor shall in his report state—

(a) whether the financial statements show fairly the financial transactions and the state of affairs of the Commission;

(b) whether proper accounting and other records have been kept,including records of all assets of the Commission whether purchased, donated or otherwise;

(c) whether the receipts, expenditure and investment of moneys and the acquisition and disposal of assets by the Commission during the financial year were in accordance with the provisions of this Act; and

(d) such other matters arising from the audit as he considers necessary.

(5) The auditor shall, as soon as practicable after the accounts have been submitted for audit, send a report of his audit to the Commission.

(6) The auditor shall submit such periodical and special reports to the Minister and to the Commission as may appear to him to be necessary or as the Minister or the Commission may require.

Powers of auditor

22.—(1) The auditor or any person authorised by him shall be entitled at all reasonable times to full and free access to all accounting and other records relating, directly or indirectly, to the financial transactions of the Commission.

(2) The auditor or any person authorised by him may make copies of, or take extracts from, any such accounting or other records.

(3) The auditor or any person authorised by him may require any person to furnish him with such information in the possession of that person or to which that person has access as the auditor or any duly authorised person considers necessary for the performance of his functions under this Act.

(4) Any officer of the Commission who—

(a) refuses or fails, without any reasonable cause, to allow the auditor or any person authorised by the auditor access to any accounting and other records of the Commission in his custody or power;

(b) refuses or fails, without any reasonable cause, to give any information possessed by him as and when required by the auditor or person authorised by the auditor; or

(c) hinders, obstructs or delays the auditor or any person authorised by the auditor in the performance of his functions,

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part thereof during which the offence continues after conviction.

Presentation of financial statements and auditor’s report to Parliament

23.—(1) The Commission shall, as soon as its accounts and financial statements have been audited in accordance with the provisions of this Act, send to the Minister a copy of the audited financial statements, signed by the Chairman, together with a copy of the auditor’s report.

(2) Where the Auditor-General is not the auditor of the Commission, a copy of the audited financial statements and any report made by the auditor shall be forwarded to the Auditor-General at the same time they are submitted to the Commission.

(3) The Minister shall, as soon as practicable, cause a copy of the audited financial statements and of the auditor’s report referred to in subsection (1) to be presented to Parliament.

Division 5—Transfer of property, assets, liabilities and employees

Transfer to Commission of property, assets and liabilities

24.—(1) As from the appointed day, such movable and immovable property vested in the Government as may be determined by the Minister for Finance and used or managed by the Market Analysis Division of the Ministry of Trade and Industry (referred to in this Division as the transferred Division) and all assets, interests, rights, privileges, liabilities and obligations of the Government relating to the transferred Division shall be transferred to and shall vest in the Commission without further assurance, act or deed.

(2) If any question arises as to whether any particular property, asset, interest, right, privilege, liability or obligation has been transferred to or vested in the Commission under subsection (1), a certificate under the hand of the Minister for Finance shall be conclusive evidence that the property, asset, interest, right, privilege, liability or obligation was or was not so transferred or vested.

(3) Any immovable property to be transferred to and vested in the Commission under subsection (1) shall be held by the Commission upon such tenure and subject to such terms and conditions as the President may determine.

(4) Every agreement relating to any of the transferred properties to which the Government was a party immediately before the appointed day, whether or not of such nature that the rights and liabilities thereunder could be assigned, shall have effect as from that day as if—

(a) the Commission had been a party to such an agreement; and

(b) for any reference to the Government there was substituted in respect of anything to be done on or after the appointed day a reference to the Commission.

Transfer of employees

25.—(1) As from the appointed day, such persons or categories of persons as the Minister may determine who, immediately before that day, were employed by the Government and posted to the transferred Division shall be transferred to the service of the Commission on terms no less favourable than those enjoyed by them immediately prior to their transfer.

(2) If any question arises as to whether any person or any category of persons has been transferred to the service of the Commission under subsection (1), a certificate under the hand of the Minister shall be conclusive evidence that the person or category of persons was or was not so transferred.

(3) Until such time as terms and conditions of service are drawn up by the Commission, the scheme and terms and conditions of service in the Government shall continue to apply to every person transferred to the service of the Commission under subsection (1) as if he were still in the service of the Government.

Service rights, etc., of transferred employees to be preserved

26.—(1) The terms and conditions to be drawn up by the Commission shall take into account the terms and conditions of service (including salaries and accrued rights to leave) enjoyed by the persons transferred to the service of the Commission under section 25 while in the employment of the Government.

(2) Any term or condition relating to the length of service with the Commission shall recognise the length of service of the persons so transferred while in the employment of the Government to be service with the Commission.

(3) Nothing in the terms and conditions of service to be drawn up by the Commission shall adversely affect the conditions that would have been applicable to persons transferred to the service of the Commission as regards any pension, gratuity or allowance payable under the Pensions Act (Cap. 225).

(4) Where a person has been transferred to the service of the Commission under section 25, the Government shall be liable to pay to the Commission such portion of any pension, gratuity or allowance payable to the person on his retirement as the same shall bear to the proportion which the aggregate amount of his pensionable emoluments during his service with the Government bears to the aggregate amount of his pensionable emoluments during his service under both the Government and the Commission.

(5) Where any person in the service of the Commission, whose case does not fall within the scope of any pension or other schemes established under this section, retires or dies in the service of the Commission or is discharged from such service, the Commission may grant to him or to such other person wholly or partly dependent on him, as the Commission thinks fit, such allowance or gratuity as the Commission may determine.

No benefits in respect of abolition or reorganisation of office

27. Notwithstanding the provisions of the Pensions Act, no person who is transferred to the service of the Commission under section 25 shall be entitled to claim any benefit under that Act on the ground that he has been retired from the public service on account of abolition or reorganisation of office in consequence of the establishment and incorporation of the Commission.

Existing contracts

28. All deeds, contracts, schemes, bonds, agreements, instruments and arrangements subsisting immediately before the appointed day to which the Government is a party and relating to the transferred Division or to any person transferred to the service of the Commission under section 25 shall continue in force on and after that day and shall be enforceable by or against the Commission as if the Commission had been named therein or had been a party thereto instead of the Government.

Continuation and completion of disciplinary proceedings and other legal proceedings

29.—(1) Where, on the appointed day, any disciplinary proceedings were pending against any employee of the Government transferred to the service of the Commission, the proceedings shall be carried on and completed by the Commission.

(2) Where, on the appointed day, any matter was in the course of being heard or investigated or had been heard or investigated by a committee acting under due authority but no order, ruling or direction had been made thereon, the committee shall complete the hearing or investigation and shall make such order, ruling or direction as it could have made under the authority vested in it before that day.

(3) Any order, ruling or direction made by a committee under this section shall be treated as an order, a ruling or a direction of the Commission and have the same force or effect as if it had been made by the Commission pursuant to the authority vested in the Commission under this Act.

(4) Any proceedings or cause of action pending or existing immediately before the appointed day by or against the Government, or any person acting on its behalf, in relation to—

(a) the transferred Division;

(b) any portion of the property, assets, interests, rights, privileges, liabilities and obligations transferred to the Commission under section 24; or

(c) any employee transferred to the service of the Commission under section 25,

may be continued, completed and enforced by or against the Commission.

Misconduct or neglect of duty by employee before transfer

30. The Commission may reprimand, reduce in rank, retire, dismiss or punish in some other manner a person who had, whilst he was in the employment of the Government, been guilty of any misconduct or neglect of duty which would have rendered him liable to be reprimanded, reduced in rank, retired, dismissed or punished in some other manner if he had continued to be in the employment of the Government, and if this Act had not been enacted.

Division 6—General

Annual report

31.—(1) The Commission shall, as soon as practicable after the end of each financial year, cause to be prepared and transmitted to the Minister a report dealing generally with the activities of the Commission during the preceding financial year and containing such information relating to the proceedings and policy of the Commission as the Minister may, from time to time, direct.

(2) The Minister shall, as soon as practicable, cause a copy of every such report to be presented to Parliament.

Symbol or representation of Commission

32.—(1) The Commission shall have the exclusive right to the use of such symbol or representation as the Commission may select or devise and thereafter display or exhibit such symbol or representation in connection with its activities or affairs.

(2) Any person who uses a symbol or representation identical with that of the Commission, or which so resembles the Commission’s symbol or representation as to deceive or cause confusion, or to be likely to deceive or to cause confusion, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both and, in the case of a continuing offence, to a further fine not exceeding $250 for every day or part thereof during which the offence continues after conviction.

PART III
COMPETITION

Division 1—General

Application of Part

33.—(1) Notwithstanding 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) a merger referred to in section 54 has taken place outside Singapore;

(e) any party to such merger is outside Singapore; or

(f) any other matter, practice or action arising out of such agreement, dominant position or merger is outside Singapore,

this Part shall apply to such party, agreement, abuse of dominant position or merger if such agreement, abuse or merger infringes or has infringed any prohibition in this Part.

(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 shall not be construed as derogating from the exercise of powers by the Commission; and

(b) the exercise of powers by the Commission shall 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 co-ordinating 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 shall apply 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) Notwithstanding subsection (4), this Part shall apply 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 published 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) shall be void on or after the appointed day 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 shall 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) shall apply to agreements, decisions and concerted practices implemented before, on or after the appointed day.

Excluded agreements

35. The section 34 prohibition shall 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 opinion of the Commission, 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 he 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 shall be exempt from the section 34 prohibition.

(5) An exemption under this section is referred to in this Part as a block exemption.

Block exemption orders

37.—(1) A block exemption order may impose conditions or obligations subject to which a block exemption shall have effect.

(2) A block exemption order may provide—

(a) that breach of a condition imposed by the order shall have 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 notice in writing, 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 shall cease 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) shall be 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 notice in writing 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) shall be 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 shall—

(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, he shall 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 shall apply to any proposed recommendation under subsection (1).

(3) Where there has been no recommendation under subsection (1), the Minister shall, before exercising his 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 shall apply to any agreement which contributes to—

(a) improving production or distribution; or

(b) promoting technical or economic progress,

but which does not—

(i) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or

(ii) 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 shall—

(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 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 notice in writing given to the applicant by the Commission when the application has been determined.

(5) The date specified in a notice under subsection (4)(b) shall 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 shall—

(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 because of the effect of an exclusion or because the agreement is exempt from the prohibition.

(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 notice in writing given to the applicant by the Commission when the application has been determined.

(4) The date specified in a notice under subsection (3)(b) shall not be earlier than the date on which the notice is given.

Effect of guidance

45.—(1) This section shall apply 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 shall take no further action under this Part 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.

(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 it likely that the agreement will infringe the section 34 prohibition; and

(c) it gives notice in writing 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 shall apply 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 shall take no further action under this Part 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.

(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 notice in writing 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 shall 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 shall—

(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 shall —

(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 because of the effect of an exclusion.

Effect of guidance

52.—(1) This section shall apply 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 shall take no further action under this Part 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.

(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 notice in writing 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 shall apply 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 shall take no further action under this Part 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.

(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 notice in writing 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.

(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 who or which control one or more undertakings acquire direct or indirect control of the whole or part of one or more other undertakings;

(c) one or more persons or other undertakings acquire direct or indirect control of the whole or part of one or more other undertakings; or

(d) 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.

(3) For the purposes of this Part, control, in relation to an undertaking, shall be regarded as existing if, by reason of securities, contracts or any other means, or any combination of securities, 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.

(4) For the purposes of this Part, control is acquired by any person or other undertaking if he or it—

(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.

(5) The creation of a joint venture to perform, on an indefinite basis, all the functions of an autonomous economic entity shall constitute a merger falling within subsection (2)(b).

(6) In determining whether influence of the kind referred to in subsection (3) is capable of being exercised, regard shall 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.

(7) For the purposes of this Part, a merger shall not 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).

(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.

(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, are carried on.

(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.

Excluded mergers

55. The section 54 prohibition shall not apply to any merger specified in the Fourth Schedule.

Requests for Commission to consider merger

56.—(1) Sections 57 and 58 provide for a merger to be considered by the Commission on the application of a party to that merger who thinks the merger may infringe the section 54 prohibition.

(2) The Minister may by regulations provide for the procedure to be followed—

(a) by any party making an application; and

(b) by the Commission, in considering such an application.

Notification for guidance

57.—(1) A party to a merger which applies for the merger to be considered under this section shall—

(a) notify the Commission of the merger; 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 merger is likely to infringe the section 54 prohibition.

Notification for decision

58.—(1) A party to a merger which applies for the merger to be considered under this section shall—

(a) notify the Commission of the merger; and

(b) apply to it for a decision.

(2) Subject to subsections (3) and (5), 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; or

(ii) because the merger is exempted from the prohibition under subsection (3).

(3) Where the Commission proposes to make a decision that the section 54 prohibition has been infringed, the Commission shall give written notice to the party who applied for the merger to be considered and the party 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.

(4) The decision of the Minister made under subsection (3) shall be final.

(5) Where the Minister exempts a merger under subsection (3), the Commission may make a decision under subsection (2)(b)(ii).

(6) The Minister may revoke the exemption of a merger granted under subsection (3) if he has reasonable grounds for suspecting that the information on which he based his decision was incomplete, false or misleading in a material particular.

Effect of guidance

59.—(1) This section shall apply to a merger if the Commission has determined an application under section 57 by giving guidance that the merger is unlikely to infringe the section 54 prohibition.

(2) The Commission shall take no further action under this Part with respect to the merger 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 merger has been made to it.

(3) 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.

(4) The Commission may remove the immunity given by subsection (3) 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 notice in writing 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 involved in the merger,

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 54 prohibition has not been infringed

60.—(1) This section shall apply 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.