(3) Without limiting the matters that may be taken into account in determining whether an undertaking has a substantial degree of market power in a market, the following matters may be taken into consideration in any such determination—
- (a) the market share of the undertaking;
- (b) the undertaking’s power to make pricing and other decisions;
- (c) any barriers to entry to competitors into the relevant market; and
- (d) any other relevant matters specified in the guidelines issued under section 35 for the purposes of this paragraph.
(4) The prohibition imposed by subsection (1) is referred to in this Ordinance as the “second conduct rule”.
22. “Object” and “effect” of conduct
(1) If conduct has more than one object, it has the object of preventing, restricting or distorting competition under this Ordinance if one of its objects is to prevent, restrict or distort competition.
(2) An undertaking may be taken to have engaged in conduct that has as its object the prevention, restriction or distortion of competition even if that object can be ascertained only by inference.
(3) If conduct has more than one effect, it has the effect of preventing, restricting or distorting competition under this Ordinance if one of its effects is to prevent, restrict or distort competition.
23. Territorial application of second conduct rule
The second conduct rule applies to conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong even if—
- (a) the undertaking engaging in the conduct is outside Hong Kong; or
- (b) the conduct is engaged in outside Hong Kong.
Subdivision 2—Decisions
24. Application for decision
(1) An undertaking that has engaged in, is engaging in or is proposing to engage in certain conduct may apply to the Commission for a decision as to whether or not the conduct is—
