Competition Act 2007 (Act No. 25 of 2007, as amended by Act No. 27 of 2012), Mauritius, WIPO Lex

Main text(s)

English Competition Act 2007 (Act No. 25 of 2007, as amended by Act No. 27 of 2012)

Competition Act 2007

__________

COMPET T ON ACT 2007

Act 25/2007

Proclaimed by [Proclamation No. 17 of 2008] w.e.f. 24 October 2008 [PART & PART ]

Proclaimed by [Proclamation No. 31 of 2009] w.e.f 25 November 2009

Parts - X

I asse t

A. V. CHETT AR Acti g Preside t of the Republic

20th December 2007

ARRANGEMENT OF SECTIONS

Sectio

PART – PREL M NARY

1. Short title

2. I terpretatio

3. Applicatio of Act

PART – THE COMPET T ON COMM SS ON Sub-Part – Establishment, functions and powers of the Commission

4. Establishme t of Commissio

5. Fu ctio s of Commissio

6. Powers of Commissio

Sub-Part – The Commissioners

7. Appoi tme t of Commissio ers

8. Term of office

9. Disclosure of assets a d liabilities

10. Disqualificatio

11. Removal a d suspe sio from office

12. Vaca cy i office of Commissio er

13. Filli g of vaca cies

14. Employme t after vacatio of or removal or suspe sio from office

15. Co duct of Commissio ers

Sub-Part – Meetings, decisions and advice of the Commission

16. Meeti gs of Commissio

17. Decisio s of Commissio

18. Duty to give reaso s

19. Advice of Commissio to Mi ister

Sub-Part V – The Executive Director and other staff of the Commission

20. Appoi tme t of Executive Director

21. Disclosure of assets a d liabilities

22. Disqualificatio

23. Removal a d suspe sio from office

24. Vaca cy i office of Executive Director

25. Employme t after vacatio of, or removal or suspe sio from, office

26. Staff of Commissio

27. Appoi tme t of i spectors a d co sulta ts

28. Disclosure of i terest

29. Disclosure of assets a d liabilities

30. Fu ctio s a d powers of Executive Director

31. Delegatio of powers by Executive Director

32. I depe de ce of Executive Director

Sub-Part V – Financing and Accountability

33. Ge eral Fu d

34. Accou ts a d audit

35. A ual report

36. Executio of docume ts

37. Powers of Mi ister

38. Guideli es a d procedural rules

39. Protectio from liability – Amended by [Act No. 27 of 2012] 40. Register of complai ts

PART - RESTR CT VE BUS NESS PRACT CES Sub-Part - Collusive agreements

41. Horizo tal agreeme ts

42. Bid riggi g

43. Vertical agreeme ts i volvi g resale price mai te a ce

Sub-Part – Other restrictive agreements

44. No -collusive horizo tal agreeme ts

45. Other vertical agreeme ts

Sub-Part – Monopoly situations

46. Existe ce of mo opoly situatio

Sub-Part V – Control of merger situations by the Commission

47. Merger situatio

48. Merger situatio s subject to review by Commissio

Sub-Part V – Share of supply criteria and assessment of restrictive business practices

49. Share of supply criteria

50. Assessme t of restrictive busi ess practices

PART V - NVEST GAT ONS

51. Report to Commissio

51A. Protectio of I formers – Amended by [Act No. 27 of 2012] 52. Power of Executive Director to i vestigate restrictive busi ess practices

53. E try a d search

54. Legal professio al privilege

PART V – HEAR NGS BEFORE THE COMM SS ON

55. Co ve i g of heari gs

56. Pe alties a d directio s

57. Co flict of i terests

PART V – DETERM NAT ON OF CASES BY COMM SS ON, PENALT ES AND REMED ES

58. Directio s by Commissio

59. Fi a cial pe alty

60. Directio s relati g to distortio , preve tio or restrictio of competitio

61. Remedies i merger co trol

62. I terim measures

63. U dertaki gs

64. Keepi g directio s a d u dertaki gs u der review

65. E forceme t of directio s a d u dertaki gs

PART V – RELAT ONSH P BETWEEN COMM SS ON AND OTHER REGULATORS

66. Memora dum of U dersta di g betwee Commissio a d regulators

PART V – APPEALS

67. Appeal to Supreme Court

68. Powers of Supreme Court o appeal

69. Decisio ot suspe ded o appeal

PART X - M SCELLANEOUS

70. Disclosure of i formatio

71. Offe ces

72. Regulatio s

73. Repeal

74. Co seque tial ame dme ts

75. Comme ceme t

An Act

To set up a Competition Commission, to make better provisions for the regulation of competition and for matters incidental thereto and connected therewith

ENACTED by the Parliame t of Mauritius, as follows –

PART – PREL M NARY

1. Short title

This Act may be cited as the Competition Act 2007.

2. nterpretation

(1) I this Act -

“agreeme t” mea s a y form of agreeme t, whether or ot legally e forceable, betwee e terprises

which is impleme ted or i te ded to be impleme ted i Mauritius or i a part of Mauritius, a d

i cludes a oral agreeme t, a decisio by a associatio of e terprises, a d a y co certed practice;

“assets”, i relatio to a e terprise, mea s –

(a) all the ta gible assets of the e terprise, i cludi g its shares, other fi a cial securities a d

bra ds;

(b) all the i ta gible assets of the e terprise, i cludi g its goodwill, i tellectual property rights a d

k ow-how;

“busi ess” i cludes a professio al practice or a y other activity which is carried out for gai or reward;

“collusive agreeme t” mea s a agreeme t referred to i sectio 41, 42 or 43;

“Commissio ” mea s the Competitio Commissio established u der sectio 4;

“Commissio er” mea s a perso appoi ted as such u der sectio 7;

“compa y” mea s a body corporate i corporated, with or without limited liability, i a y part of the

world;

“co certed practice” mea s a practice i volvi g co tacts or commu icatio s betwee competitors

falli g short of a actual agreeme t but which o etheless restricts competitio betwee them;

“co sumer” mea s a y direct or i direct user of a product or service supplied by a e terprise i the

course of busi ess, a d i cludes –

(a) a other e terprise that uses the product or service thus supplied as a i put to its ow

busi ess;

(b) a wholesaler, a retailer a d a fi al co sumer;

“docume t” i cludes i formatio recorded i writte , electro ic or a y other form, together with access

to the tech ology e abli g i formatio i electro ic form to be retrieved;

“e terprise” mea s a y perso , firm, part ership, corporatio , compa y, associatio or other juridical

perso , e gaged i commercial activities for gai or reward, a d i cludes their bra ches, subsidiaries,

affiliates or other e tities directly or i directly co trolled by them;

“Executive Director” mea s the perso appoi ted as such u der sectio 20 or a perso fulfilli g the

fu ctio s of that office;

“fi a cial pe alty” mea s a fi a cial pe alty imposed u der sectio 59;

“goods” i cludes buildi gs a d other structures;

“group” i relatio to a e terprise that is a compa y, mea s that compa y, a y other compa y that is

its holdi g compa y or subsidiary a d a y other compa y that is a subsidiary of the holdi g compa y;

“horizo tal agreeme t” mea s a agreeme t betwee e terprises which, for the purpose of that

agreeme t, operate i the same market a d are actual or pote tial competitors i that market;

“immu ity” mea s a total exemptio from a fi a cial pe alty;

“market” mea s a market for goods or services i Mauritius or part of Mauritius;

“le ie cy” mea s a partial exemptio from a fi a cial pe alty

“Mi ister” mea s the Mi ister to whom respo sibility for the subject of competitio matters is

assig ed;

“mo opoly situatio ” mea s the situatio that exists i the circumsta ce specified i sectio 46;

“premises” i cludes la d, a y buildi g, structure, vehicle, vessel, aircraft or co tai er;

“price” i cludes a y charge or fee;

“prohibited agreeme t” mea s a agreeme t prohibited by virtue of the applicatio of sectio 41, 42

or 43;

“publish” i cludes o -li e publicatio ;

“regulator” mea s a regulatory body or age cy, or a Gover me t Departme t that exercises fu ctio s

of prude tial or eco omic regulatio o the basis of statutory powers;

“resale price mai te a ce” mea s a agreeme t betwee a supplier a d a dealer with the object or

effect of directly or i directly establishi g a fixed or mi imum price or price level to be observed by the

dealer whe reselli g a product or service to his customers;

“restrictive busi ess practice” mea s a y situatio falli g withi the terms of Part III;

“services” i cludes the accepta ce a d performa ce of a y obligatio , whether professio al or ot, for

gai or reward, other tha the supply of goods, but does ot i clude the re deri g of a y services

u der a co tract of employme t;

“subsidiary” has the mea i g assig ed to it i the Compa ies Act 2001;

“supply” i cludes, i relatio to –

(a) goods, the supply or re-supply, by way of sale, excha ge, lease, hire or hire-purchase; a d

(b) services, the provisio by way of sale, gra t or co ferme t of the services;

“u dertaki g” mea s a obligatio or commitme t as provided u der sectio 63 give i writi g by a

e terprise to, a d accepted by, the Commissio ers, to preve t or termi ate a restrictive busi ess

practice;

“vertical agreeme t” mea s a agreeme t betwee e terprises each of which operates, for the

purposes of the agreeme t, at a differe t level of the productio or distributio chai a d relates to the

co ditio s u der which the parties may purchase, sell or resell certai goods or services.

(2) For the purposes of this Act, a y 2 bodies corporate shall be treated as i terco ected or as o e

perso if either of them is a subsidiary of the other or if both of them are subsidiaries of the same

body corporate.

3. Application of Act

(1) A y refere ce i this Act to the supply of –

(a) goods, shall be co strued as the supply of goods i Mauritius;

(b) services, shall be co strued as the supply of services i or from Mauritius.

(2) Save as otherwise provided for i this sectio or elsewhere i this Act, this Act shall apply to every

eco omic activity withi , or havi g a effect withi , Mauritius or a part of Mauritius.

(3) This Act shall bi d the State to the exte t that the State e gages i trade or busi ess for the

productio , supply, or distributio of goods or the provisio of a y service withi a market i Mauritius

which is ope to participatio by other e terprises.

(4) This Act shall ot apply to matters listed i the Schedule.

PART – THE COMPET T ON COMM SS ON Sub-Part – Establishment, functions and powers of the Commission

4. Establishment of Commission

(1)

(2)

There is established for the purposes of this Act, a Commissio which shall be k ow as the

Competitio Commissio .

The Commissio shall be impartial a d shall perform its fu ctio s without fear, favour or prejudice.

(3)

(4)

Subject to the provisio s of this Act, the Commissio may regulate its ow proceedi gs.

The Commissio shall be a body corporate.

5. Functions of Commission

The Commissio shall –

(a) co duct, as required, a y heari gs with i terested perso s or parties;

(b) determi e whether a restrictive busi ess practice is occurri g or has occurred;

a ti-competitive practice a d what actio a e terprise should take to e sure complia ce with

the pe alty or remedy.

6. Powers of Commission

The Commissio shall have such powers as are ecessary to e able it to effectively discharge its fu ctio s

a d may, i particular –

(a) issue orders a d directio s i accorda ce with this Act;

(b) impose fi a cial pe alties or remedies o a y e terprise which co ducts its busi ess i

breach of this Act;

fu ctio s u der this Act;

(d) co-operate with other competitio authorities i other cou tries e trusted with fu ctio s similar

to those of the Commissio ;

(e) impose such charges or fees as may be required u der this Act or regulatio s made u der it.

Sub-Part – The Commissioners

7. Appointment of Commissioners

(1) The Commissio shall co sist of a Chairperso , a Vice-Chairperso a d 3 other Commissio ers who

shall be appoi ted by the Preside t o the advice of the Prime Mi ister give after co sultatio with

the Leader of the Oppositio .

(2) The Commissio ers referred to i subsectio (1) shall be perso s from the public sector, private

sector a d academia, appoi ted by virtue of their qualificatio s a d experie ce i law, eco omics,

accou ta cy, or commerce.

(3) Subject to the provisio s of this Act, the Chairperso , Vice-Chairperso a d every other

Commissio er shall be appoi ted o such terms a d co ditio s as the Preside t, o the advice of the

Prime Mi ister, may determi e.

8. Term of office

(1) Every Commissio er shall, subject to subsectio s (2) a d (3) hold office for a period of 5 years.

(2) A Commissio er may be re-appoi ted but shall ot serve for more tha 2 co secutive terms.

(3) A Commissio er may resig from office at a y time by givi g ot less tha o e mo th’s writte otice

to the Preside t.

9. Disclosure of assets and liabilities

A Commissio er shall –

(a) ot later tha 30 days after the date of his appoi tme t;

(b) ot later tha 30 Ju e i every year u til he ceases to be a member of the Commissio ; a d

deposit with the I depe de t Commissio Agai st Corruptio a declaratio of his assets a d liabilities i

relatio to himself, his spouse a d childre , i such form as may be approved by the I depe de t

Commissio Agai st Corruptio .

10. Disqualification

No perso shall be appoi ted or shall co ti ue to hold office as a Commissio er if he –

(a) has, i terms of a y law i a y cou try -

(i) bee adjudged or otherwise declared i solve t or ba krupt a d has ot bee

rehabilitated or discharged;

(ii) made a assig me t to, or arra geme t or compositio with, his creditors, which has

ot bee resci ded or set aside;

(b) has bee co victed -

(i) i Mauritius, of a crimi al offe ce i volvi g fraud or disho esty; or

(ii) outside Mauritius, of a offe ce which, if committed i Mauritius, would have bee a

offe ce i volvi g fraud or disho esty;

11. Removal and suspension from office

(1) Subject to subsectio s (2) to (5), a Commissio er shall be removed from his office where -

(a) he has acted improperly i the discharge of his fu ctio s as Commissio er;

(b) he becomes disqualified u der sectio 10 to hold office as a Commissio er;

excuse;

(d) he becomes physically or me tally i capable of performi g his duties as a Commissio er.

(2) Where the Prime Mi ister co siders that the questio of removi g a Commissio er ought to be

i vestigated, he shall appoi t a Discipli ary Committee which shall be presided by a perso who

holds or has held office as a Judge of the Supreme Court a d 2 other members.

(3) The Discipli ary Committee appoi ted u der subsectio (2), shall e quire i to the matter a d shall

forward its report to the Prime Mi ister with a recomme datio as to whether a Commissio er ought

to be removed u der this sectio .

(4) Where the Discipli ary Committee recomme ds that a Commissio er ought to be removed, the

Commissio er shall be removed from office by the Preside t acti g o the advice of the Prime

Mi ister.

(5) The Prime Mi ister may, i writi g, suspe d a Commissio er from office where -

(a) the questio of removi g a Commissio er has bee referred to a Discipli ary Committee

u der this sectio ; or

(b) crimi al proceedi gs are i stituted or are co templated agai st a Commissio er for a offe ce

i respect of which a se te ce of impriso me t may be imposed.

12. Vacancy in office of Commissioner

The office of Commissio er shall become vaca t where a Commissio er –

(a) is removed from office u der sectio 11;

(b) dies or vacates his office.

13. Filling of vacancies

(1) Where a vaca cy occurs i the office of Commissio er, the Preside t, o the advice of the Prime

Mi ister give after co sultatio with the Leader of the Oppositio , shall appoi t a perso to replace

the Commissio er.

(2) A y perso appoi ted u der subsectio (1) shall hold office for the remai der of the term for which

the Commissio er who died or vacated his office was appoi ted.

14. Employment after vacation of or removal or suspension from office

Where a Commissio er has vacated his office, or has bee removed or suspe ded from office, he shall ot

take employme t i , or be employed by, a e terprise which has bee subject to a i vestigatio u der Part

IV withi a period of 3 years from the date of the said vacatio of, or removal or suspe sio from, office, as

the case may be.

15. Conduct of Commissioners

(1) No Commissio er shall -

(a) e gage i a y activity that may u dermi e the i tegrity of the Commissio ; or

(b) participate i a y decisio co cer i g a y matter i respect of which he has a fi a cial

i terest, or a y other perso al i terest, whether directly or i directly.

(2) Every Commissio er who –

(a) has a y direct or i direct fi a cial i terest i a y matter to be co sidered by the Commissio

shall, immediately after the releva t facts have come to his k owledge, disclose i writi g the

ature of the i terest to the Mi ister a d shall ot be prese t duri g a y deliberatio of, or take

part i a y decisio of, the Commissio with respect to that matter;

(b) has or acquires, i a y e terprise i Mauritius or elsewhere, a y direct or i direct fi a cial

i terest, shall i form the Mi ister i writi g of such fact.

Sub-Part – Meetings, decisions and advice of the Commission

16. Meetings of Commission

(1) The Commissio shall meet as ofte as is ecessary or expedie t for the discharge of its fu ctio s

a d, i a y case, at least o ce every mo th a d at such time a d place as the Chairperso may

determi e.

(2) (a) Subject to paragraph (b), every meeti g of the Commissio shall be called by the Chairperso .

(b) Where at least 3 Commissio ers give otice i writi g to the Chairperso to co ve e a

meeti g of the Commissio for a y purpose specified i the otice, the Chairperso shall,

withi 3 days of the receipt of that otice, co ve e a meeti g for that purpose.

(3) At a y meeti g of the Commissio , 3 Commissio ers shall co stitute a quorum.

(4) I the abse ce of the Chairperso at a meeti g of the Commissio , the Vice-Chairperso shall

preside, a d i the abse ce of both the Chairperso a d the Vice-Chairperso , the Commissio ers

prese t shall elect from amo g themselves a member to preside at that meeti g, a d the member so

elected shall, i relatio to that meeti g, exercise the fu ctio s a d have all the powers of the

Chairperso .

17. Decisions of Commission

Every decisio at a meeti g of the Commissio shall be by a majority of the members prese t a d voti g

a d, i the eve t of a equality of votes, the Chairperso shall have a casti g vote.

18. Duty to give reasons

The Commissio shall prepare a d publish its decisio s together with the reaso s for such decisio s.

19. Advice of Commission to Minister

The Commissio may advise the Mi ister o a y actio take or proposed to be take by the State or a y

public body that may adversely affect competitio i the supply of goods a d services.

Sub-Part V – The Executive Director and other staff of the Commission

20. Appointment of Executive Director

(1) There shall be a chief executive officer of the Commissio who shall be -

(a) k ow as the Executive Director;

(b) appoi ted by the Preside t, o the advice of the Prime Mi ister give after co sultatio with

the Leader of the Oppositio .

(2) The terms a d co ditio s of the appoi tme t of the Executive Director shall be determi ed by the

Preside t o the advice of the Prime Mi ister.

(3) Where there is a vaca cy i the post of the Executive Director or the Executive Director is suspe ded

or physically or me tally i capable of performi g his duties, the Preside t, o the advice of the Prime

Mi ister, may appoi t a other perso to act as Executive Director or to perform his duties.

21. Disclosure of assets and liabilities

The Executive Director shall –

(a) ot later tha 30 days after the date of his appoi tme t;

(b) ot later tha 30 Ju e i every year while he is i office; a d

deposit with the I depe de t Commissio Agai st Corruptio a declaratio of his assets a d liabilities i

relatio to himself, his spouse a d childre , i such form as may be approved by the I depe de t

Commissio Agai st Corruptio .

22. Disqualification

(1) No perso shall be appoi ted or shall co ti ue to hold office as Executive Director if he -

(a) has, i terms of a y law i a y cou try -

(i) bee adjudged or otherwise declared i solve t or ba krupt a d has ot bee

rehabilitated or discharged;

(ii) made a assig me t to, or arra geme t or compositio with, his creditors, which has

ot bee resci ded or set aside;

(b) has bee co victed -

(i) i Mauritius, of a crimi al offe ce i volvi g fraud or disho esty; or

(ii) outside Mauritius, of a offe ce which, if committed i Mauritius, would have bee a

offe ce i volvi g fraud or disho esty;

23. Removal and suspension from office

(1) Subject to subsectio s (2) to (5), the Executive Director shall be removed from office where -

(a) he has acted improperly i the discharge of his fu ctio s as Executive Director;

(b) he becomes disqualified u der sectio 22 to hold office as Executive Director;

(2) Where the Prime Mi ister co siders that the questio of removi g the Executive Director ought to be

i vestigated, he shall appoi t a Discipli ary Committee which shall be presided by a perso who

holds or has held office as a Judge of the Supreme Court a d 2 other members.

(3) The Discipli ary Committee appoi ted u der subsectio (2), shall e quire i to the matter a d shall

forward its report to the Prime Mi ister with a recomme datio as to whether the Executive Director

ought to be removed u der this sectio .

(4) Where the Discipli ary Committee recomme ds that the Executive Director ought to be removed, the

Executive Director shall be removed from office by the Preside t acti g o the advice of the Prime

Mi ister.

(5) The Prime Mi ister may, i writi g, suspe d the Executive Director from office where -

(a) the questio of removi g the Executive Director has bee referred to a Discipli ary Committee

u der this sectio ; or

(b) crimi al proceedi gs are i stituted or are co templated agai st the Executive Director for a

offe ce i respect of which a se te ce of impriso me t may be imposed.

24. Vacancy in office of Executive Director

The office of Executive Director shall become vaca t where the Executive Director –

(a) is removed from office u der sectio 23;

(b) dies or vacates his office.

25. Employment after vacation of, or removal or suspension from, office

Where the Executive Director has vacated his office, or has bee removed or suspe ded from office, he shall

ot take employme t i , or be employed by, a e terprise which has bee subject to a i vestigatio u der

Part IV withi a period of 3 years from the date of the said vacatio of, or removal or suspe sio from, office,

as the case may be.

26. Staff of Commission

(1) The Commissio may employ o such terms a d co ditio s as it thi ks fit, such members of staff as it

deems ecessary for the proper discharge of the fu ctio s of the Commissio a d of the Executive

Director u der this Act.

(2) Every member of the staff of the Commissio shall be u der the admi istrative co trol of the

Executive Director.

(3) Notwithsta di g subsectio (1), the Commissio may, with the approval of the Public Service

Commissio , recruit a public officer.

(4) Where the Commissio recruits a public officer u der subsectio (3), that officer shall be gra ted

leave without pay from his service for the duratio of his co tract of employme t with the Commissio .

27. Appointment of inspectors and consultants

(1) The Commissio may, for the proper discharge of its fu ctio s u der this Act -

(a) desig ate a y of its employees or appoi t a y other suitable perso , to be a i spector for the

purposes of this Act;

(b) appoi t such other perso s to be co sulta ts to advise, or perform services, for the

Commissio .

(2) The desig atio or appoi tme t of a y perso u der subsectio (1) shall be subject to such terms

a d co ditio s as the Commissio thi ks fit.

(3) Where a y perso appoi ted or desig ated by the Commissio u der subsectio (1) has a y i terest,

whether direct or i direct, i a y e terprise i Mauritius or abroad, he shall forthwith or as soo as

practicable after the releva t facts have come to his k owledge, disclose i writi g the ature of the

i terest to the Commissio .

28. Disclosure of interest

(1) (a) The Executive Director shall, withi 7 days of his appoi tme t, submit to the Commissio a

writte stateme t of a y i terest he holds or has acquired i a y e terprise which is subject to

the co trol of the Commissio .

(b) Every member of the staff of the Commissio shall, withi 7 days of his appoi tme t, submit to

the Commissio a writte stateme t of a y i terest he holds or has acquired i a y busi ess

or e terprise which is subject to the co trol of the Commissio .

(2) Where the Executive Director or a y member of the staff acquires, after his appoi tme t, a i terest

i a y e terprise, he shall, withi 7 days of the acquisitio , give writte otice of the ature of the

i terest to the Commissio .

29. Disclosure of assets and liabilities

A member of the staff of the Commissio shall –

(a) ot later tha 30 days after the date of his appoi tme t;

(b) ot later tha 30 Ju e i every year while he is i office; a d

deposit with the I depe de t Commissio Agai st Corruptio a declaratio of his assets a d liabilities i

relatio to himself, his spouse a d childre , i such form as may be approved by the I depe de t

Commissio Agai st Corruptio .

30. Functions and powers of Executive Director

The Executive Director shall –

(a) keep the operatio of markets i Mauritius a d the co ditio s of competitio i those markets

u der co sta t review;

(b) either o his i itiative, or o the complai t of a y perso , ope a i vestigatio i to a

suspected breach of the prohibitio of those restrictive agreeme ts that fall withi sectio s 41

to 43;

is subject to review u der sectio s 44 to 48;

(d) gather i formatio required for the assessme t of each case o the basis of the powers

co ferred by Part IV;

(e) publish the reaso ed decisio s of the Commissio o ce the latter has made a determi atio ;

(f) mo itor complia ce with a pe alty or remedy imposed by the Commissio a d take a y step

required to e force complia ce with this Act;

(g) publish a d otherwise promote a d advertise the provisio s of this Act a d the activities of the

Commissio ;

(h) u dertake ge eral studies o the effective ess of competitio i i dividual sectors of the

eco omy i Mauritius;

(i) liaise a d excha ge i formatio , k owledge a d expertise with competitio authorities i other

cou tries e trusted with fu ctio s similar to those of the Commissio ; a d

(j) advise the Mi ister o i ter atio al agreeme ts releva t to competitio matters a d to this Act.

31. Delegation of powers by Executive Director

The Executive Director may delegate to a y staff of the Commissio , such of his fu ctio s a d powers u der

this Act as may be ecessary to assist i the effective ma ageme t of the Commissio .

32. ndependence of Executive Director

Where the Executive Director exercises his power to i vestigate i a case i volvi g a restrictive busi ess

practice, he shall ot be subject to the directio , or co trol of, a y other perso or authority.

Sub-Part V – Financing and Accountability

33. General Fund

(1) The Commissio shall establish a Ge eral Fu d -

(a) i to which all mo ies received shall be paid; a d

(b) out of which -

(i) all payme ts required to be paid by the Commissio shall be effected;

(ii) shall be paid i to the Capital Fu d established u der the Fi a ce a d Audit Act, such

surplus mo ey ot required for the purposes of subparagraph (i).

(2) The Commissio may, i furthera ce of its objects a d i accorda ce with the terms a d co ditio s

upo which its fu ds may have bee obtai ed or derived, charge to the Ge eral Fu d all

remu eratio s, allowa ces, salaries, gra ts, fees, pe sio s, supera uatio fu d attributio s,

gratuities, worki g expe ses a d all other charges properly arisi g, i cludi g a y ecessary capital

expe diture.

(3) The Commissio shall derive its i come from -

(a) a y sum appropriated from the Co solidated Fu d; a d

(b) a y such source as may be approved by the Mi ister.

34. Accounts and audit

(1) The Commissio shall, ot later tha 3 mo ths before the e d of each fi a cial year, make a d

submit to the Mi ister for approval, estimates of the i come a d expe diture of the Commissio for

the e sui g year.

(2) I sig ifyi g his approval, the Mi ister may make comme ts of a ge eral policy ature regardi g the

estimate.

(3) The Commissio shall, withi 3 mo ths of the e d of the precedi g fi a cial year, submit to the

Director of Audit for auditi g, its stateme ts of accou ts for that year.

(4) The audited accou ts of the Commissio together with the report of the Director of Audit shall be

submitted to the Mi ister ot later tha 9 mo ths after the e d of the fi a cial year.

(5) Upo receipt of the audited accou ts a d the report referred to i subsectio (4), the Mi ister shall, as

soo as practicable, lay a copy of the accou ts a d the report before the Natio al Assembly.

(6) For the purposes of this sectio , the period exte di g from the comme ceme t of this Act to 30 Ju e

ext followi g shall be deemed to be the first fi a cial year of the Commissio .

(7) Subsectio (1) shall ot apply to the first fi a cial year of the Commissio .

35. Annual report

(1) The Commissio shall, ot later tha 3 mo ths after the closure of a fi a cial year, issue a a ual

report o its activities a d audited accou ts for that fi a cial year.

(2) The a ual report shall, as far as possible, give a accou t of –

(a) the i vestigatio s that were carried out;

(b) the outcome of i vestigatio s carried out; a d

sectio 51(2).

(3) The a ual report shall be submitted to the Mi ister to be laid at the first available opportu ity before

the Assembly.

36. Execution of documents

(1) Subject to subsectio (2), all docume ts shall be deemed to be executed by or o behalf of the

Commissio if sig ed by the Executive Director.

(2) Every cheque of the Commissio shall be sig ed by –

(a) the Executive Director; a d

(b) a other perso desig ated by the Commissio .

37. Powers of Minister

(1) The Mi ister may give writte directio s of a ge eral character to the Commissio relati g to a y

additio al public policy factors to which he wishes the Commissio to have regard i reachi g its

determi atio s.

(2) The Commissio may, upo receipt of directio s by the Mi ister u der subsectio (1), issue a writte

reply to the Mi ister.

(3) The directio s give by the Mi ister u der subsectio (1) a d the reply by the Commissio , if a y,

u der subsectio (2) shall be published i the Gazette.

38. Guidelines and procedural rules

(1) The Commissio shall, withi a period of 6 mo ths of its establishme t, publish -

(a) guideli es o the eco omic a d legal a alysis which shall be used for the determi atio of

cases u der this Act;

(b) guideli es o the pri ciples which shall be used for the determi atio of pe alties or remedies

imposed u der the Act, a d o the ma er i which tur over is to be calculated for the

purposes of sectio 59;

out its fu ctio s u der the Act.

(2) The Commissio may, from time to time, review a d publish the revised versio s of, its guideli es a d

procedural rules.

(3) I formulati g a d publishi g the procedural rules, the Commissio shall have regard to -

(a) the pri ciples of atural justice;

(b) the eed for fair ess betwee parties;

the Commissio .

39. Protection from liability

No liability, civil or crimi al, shall attach to the Commissio , a Commissio er, the Executive

Director, a employee of the Commissio , a i spector or co sulta t appoi ted u der sectio 27, or

a y other perso to whom a y fu ctio has bee lawfully assig ed or delegated u der this Act, for

a y act do e or omitted to be do e, i good faith u der this Act.

Amended by [Act No. 27 of 2012]

40. Register of complaints

The Executive Director may keep i such form a d ma er as he may determi e a register of complai ts

which shall be made available for public i spectio .

PART - RESTR CT VE BUS NESS PRACT CES Sub-Part - Collusive agreements

41. Horizontal agreements

(1) For the purposes of this sectio , a agreeme t, or a provisio of such agreeme t, shall be collusive if

(a) it exists betwee e terprises that supply goods or services of the same descriptio , or acquire

goods or services of the same descriptio ;

(b) it has the object or effect of, i a y way -

(i) fixi g the selli g or purchase prices of the goods or services;

(ii) shari g markets or sources of the supply of the goods or services; or

(iii) restricti g the supply of the goods or services to, or the acquisitio of them from, a y

perso ; a d

(2) A y agreeme t, or provisio of such agreeme t, which is collusive u der this sectio shall be

prohibited a d void.

42. Bid rigging

(1) For the purposes of this sectio , a agreeme t, or a provisio of such agreeme t, shall be collusive if

o e party to the agreeme t -

(a) agrees ot to submit a bid or te der i respo se to a i vitatio for bids or te ders; or

(b) agrees upo the price, terms or co ditio s of a bid or te der to be submitted i respo se to

such a call or request.

(2) Subject to subsectio (3), a y agreeme t, or provisio of such agreeme t, which is collusive u der

this sectio shall be prohibited a d void.

(3) This sectio shall ot apply to a agreeme t the terms of which are made k ow to the perso

maki g the i vitatio for bids or te ders at, or before, the time whe a y bid or te der is made by a

party to the agreeme t.

43. Vertical agreements involving resale price maintenance

(1) Subject to subsectio s (2) a d (3), a vertical agreeme t betwee e terprises shall, to the exte t that it

i volves resale price mai te a ce, be prohibited a d void.

(2) A supplier or producer may recomme d a mi imum resale price to a reseller of goods or services

provided that the recomme datio is ot bi di g.

(3) Where a supplier or producer has recomme ded a mi imum resale price to a reseller of goods a d

the resale price appears o the goods, the words “recomme ded price” shall appear ext to the resale

price.

Sub-Part – Other restrictive agreements

44. Non-collusive horizontal agreements

A horizo tal agreeme t that is ot collusive u der sectio 41 may be reviewed by the Commissio where -

(a) the parties to the agreeme t together supply 30 per ce t or more, or acquire 30 per ce t or

more, of goods a d services of a y descriptio o the market; a d

(b) the Commissio has reaso able grou ds to believe that the agreeme t has the object or effect

of preve ti g, restricti g or distorti g competitio .

45. Other vertical agreements

A vertical agreeme t that does ot i volve resale price mai te a ce may be reviewed where the Commissio

has reaso able grou ds to believe that o e or more parties to the agreeme t is or are i a mo opoly situatio

that is subject to review u der sectio 46.

Sub-Part – Monopoly situations

46. Existence of monopoly situation

(1) A mo opoly situatio shall exist i relatio to the supply of goods or services of a y descriptio where

(a) 30 per ce t or more of those goods or services are supplied, or acquired o the market, by

o e e terprise; or

(b) 70 per ce t or more of those goods or services are supplied, or acquired o the market, by 3

or fewer e terprises.

(2) A mo opoly situatio shall be subject to review by the Commissio where the Commissio has

reaso able grou ds to believe that a e terprise i the mo opoly situatio is e gagi g i co duct that

(a) has the object or effect of preve ti g, restricti g or distorti g competitio ; or

(b) i a y other way co stitutes exploitatio of the mo opoly situatio .

(3) I reviewi g a mo opoly situatio , the Commissio shall take i to accou t -

(a) the exte t to which a e terprise e joys or a group of e terprises e joy, such a positio of

domi a ce i the market as to make it possible for that e terprise or those e terprises to

operate i that market, a d to adjust prices or output, without effective co strai t from

competitors or pote tial competitors;

(b) the availability or o -availability of substitutable goods or services to co sumers i the short

term;

short term; a d

(d) evide ce of actio s or behaviour by a e terprise that is, or a group of e terprises that are, a

party to the mo opoly situatio where such actio s or behaviour that have or are likely to have

a adverse effect o the efficie cy, adaptability a d competitive ess of the eco omy of

Mauritius, or are or are likely to be detrime tal to the i terests of co sumers.

Sub-Part V – Control of merger situations by the Commission

47. Merger situation

(1) For the purposes of this Act a d subject to subsectio (2), a merger situatio mea s the bri gi g

together u der commo ow ership a d co trol of 2 or more e terprises of which o e at least carries

its activities, i Mauritius, or through a compa y i corporated i Mauritius.

(2) For the purpose of subsectio (1), e terprises shall be regarded as bei g u der commo co trol

where they are -

(a) e terprises of i terco ected bodies corporate;

(b) e terprises carried o by 2 or more bodies corporate of which o e perso has or groups of

perso s have co trol; or

havi g co trol of that body corporate.

(3) A y perso may be treated as bri gi g a e terprise u der his co trol where -

(a) he becomes able to co trol or materially to i flue ce the policy of the e terprise, but without

havi g a co trolli g i terest i it;

(b) bei g already able to co trol or materially to i flue ce the policy of the e terprise, he acquires

a co trolli g i terest i it; or

co trol that policy.

(4) Where 2 or more e terprises i te d to be i a merger situatio , a y o e of the e terprises may apply

to the Commissio for guida ce as to whether the proposed merger situatio is likely to result i a

substa tial lesse i g of competitio withi a y market for goods or services.

48. Merger situations subject to review by Commission

A merger situatio shall be subject to review by the Commissio where -

(a) all the parties to the merger, supply or acquire goods or services of a y descriptio , a d will

followi g the merger, together supply or acquire 30 per ce t or more of all those goods or

services o the market; or

(b) o e of the parties to the merger alo e supplies or acquires prior to the merger, 30 per ce t or

more of goods or services of a y descriptio o the market; a d

has resulted i , or is likely to result i , a substa tial lesse i g of competitio withi a y market

for goods or services.

Sub-Part V – Share of supply criteria and assessment of restrictive business practices

49. Share of supply criteria

(1) For the purpose of establishi g whether the share of supply criteria set out i sectio s 44, 45, 46 or 48

are satisfied, the share of the group as a whole is to be used where a e terprise -

(a) is a subsidiary of a group; or

(b) is otherwise party to agreeme ts by which e terprises are i terco ected withi a group.

(2) For the purpose of establishi g whether the share of supply criteria set out i sectio s 44, 45, 46 or 48

are satisfied, the Commissio may also take i to accou t a y cross-shareholdi g betwee or

amo gst groups.

50. Assessment of restrictive business practices

(1) The Commissio shall, i relatio to every agreeme t falli g u der Sub-Part I of this Part, establish

whether, o the facts of the case, the parties to the agreeme t have i fri ged the prohibitio imposed

u der that Sub-Part.

(2) Whe reviewi g a matter falli g withi Sub-Parts II, III a d IV of this Part, the Commissio shall have

regard to the desirability of mai tai i g a d e couragi g competitio a d the be efits to be gai ed i

respect of the price, qua tity, variety a d quality of goods a d services, a d shall first determi e

whether competitio i a y market is adversely affected i that, i the case of -

(a) a reviewable restrictive agreeme t, the agreeme t has the object or effect of preve ti g,

restricti g or distorti g competitio ;

(b) a mo opoly situatio , the co duct of o e or more parties -

(i) has the object or effect of preve ti g, restricti g or distorti g competitio ; or

(ii) i a y other way co stitutes exploitatio of the mo opoly situatio , havi g regard to the

factors set out i sectio 46;

substa tial lesse i g of competitio withi a y market or markets for goods a d services.

(3) Where the review of the matters described i subsectio (2) leads to a fi di g by the Commissio that

there are adverse effects for competitio i a particular case, it shall, before decidi g o a y

appropriate remedial actio to be take as provided for u der Part VI, co sider -

(a) if a y of the offsetti g public be efits specified i subsectio (4) are prese t; a d

(b) whether a d to what exte t the be efits, if they are prese t, should be take i to accou t i

determi i g the remedial actio to be take .

(4) A be efit shall be co sidered for the purposes of subsectio (3)(a) if it is show that the effects of a y

abse ce, preve tio , restrictio or distortio of competitio are outweighed by specific gai s i

respect of -

(a) the safety of goods a d services;

(b) the efficie cy with which goods are produced, supplied or distributed or services are supplied

or made available;

productio a d distributio ; or

(d) the promotio of tech ological a d eco omic progress,

a d the be efits have bee or are likely to be shared by co sumers a d busi ess i ge eral.

PART V - NVEST GAT ONS

51. Report to Commission

(1) Where the Executive Director has reaso able grou ds to believe that a restrictive busi ess practice is

occurri g or about to occur, he shall i vestigate, or cause to be i vestigated, such restrictive busi ess

practice.

(2) Upo completio of a i vestigatio , the Executive Director shall submit his report o the i vestigatio

to the Commissio .

51A. Protection of informers

(1) Where the Executive Director receives i formatio to the effect that a restrictive

busi ess practice has occurred, is occurri g or is about to occur, the i formatio a d the ide tity of

the i former shall, at the request of the i former, be treated as co fide tial betwee the Commissio

a d the i former, a d a y matter relati g to the i formatio shall be privileged a d shall ot, subject to

subsectio (4), be disclosed i a y proceedi gs before the Commissio ers or a y Court, tribu al or

other authority.

(2) Where the Executive Director certifies i writi g that a i former has made a request

u der subsectio (1), the certificate shall be received as evide ce of the fact before the

Commissio ers or a y Court, tribu al or other authority without the eed to prove the sig ature of the

Executive Director.

(3) Where a y record, which is give i evide ce or liable to i spectio i a y civil or

crimi al proceedi gs, co tai s a e try relati g to a i former or the i formatio give by the

i former, the Executive Director shall, subject to subsectio (4), cause all parts relati g to the i former

or the i formatio give to be co cealed from view so as to protect the ide tity of the i former.

(4) (a) A y perso havi g a i terest i the i formatio received by the Executive

Director u der subsectio (1) may apply to a Judge i Chambers for a order directi g the Executive

Director to disclose the ide tity of the i former or a y i formatio received.

(b) The Judge shall issue a order u der paragraph (a) where he is satisfied that –

(i) crimi al proceedi gs have bee or are bei g i stituted agai st the

i former a d i formatio received u der subsectio (1) is esse tial to

these proceedi gs; or

(ii) the ide tity of a i former or a y i formatio received u der subsectio

(1) is esse tial to the defe ce of a perso agai st whom crimi al

proceedi gs have bee i stituted; a d

(iii) o prejudice will be caused to the i former followi g the disclosure of his

ide tity or a y i formatio received u der subsectio (1).

Added by [Act No. 27 of 2012]

52. Power of Executive Director to investigate restrictive business practices

(1) The Executive Director may, for the purposes of a y i vestigatio u der this Act –

(a) order a y perso to atte d, at a specified time a d place, for the purpose of bei g exami ed

orally i relatio to a y matter;

(b) order a y perso to produce before it a y book, docume t, record or article as may be

required with respect to a y matter releva t to the i vestigatio , which he is ot preve ted by

a y other e actme t from disclosi g;

i formatio which may be required u der the otice.

(2) Every order made u der this sectio shall be i writi g a d sig ed by the Executive Director or a

member of the staff of the Commissio duly authorised i writi g by the Executive Director.

(3) A perso o whom a order u der subsectio (1) has bee served shall –

(a) comply with the order;

(b) atte d before the Executive Director i accorda ce with the terms of the order;

a d

(d) a swer questio s a d fur ish all i formatio , docume ts, records or stateme ts, i cludi g

certified copies thereof, as ordered.

(4) The Executive Director may take copies or extracts from a y docume t produced u der subsectio

(1) a d may require the perso produci g it to give a y ecessary expla atio relati g to such

docume t.

(5) Where material to which a i vestigatio relates co sists of i formatio stored i a computer, disc,

cassette, or o microfilm, or preserved by a y mecha ical or electro ic device, the request from the

Executive Director shall be deemed to require the perso amed therei to produce or give access to

it i a form i which it ca be take away a d i which it is visible a d legible.

(6) A y perso who, without lawful or reaso able excuse, fails to atte d a heari g or to produce a

docume t or other material whe required to do so u der subsectio (3) shall commit a offe ce a d

shall, o co victio , be liable, i the case of -

(a) a i dividual, to a fi e ot exceedi g 50,000 rupees a d to impriso me t for a term ot

exceedi g 2 years; or

(b) a body corporate, to a fi e ot exceedi g 200,000 rupees.

(7) The Executive Director may require evide ce at a heari g to be give u der oath.

53. Entry and search

(1) Subject to subsectio (2), the Executive Director may, for the purposes of this Act -

(a) e ter a d search a y premises a d take possessio of a y specified docume ts;

(b) take copies of a y such docume ts;

may be fou d;

(d) require a y i formatio which is i a computer a d is accessible from the premises, to be

produced i a form i which it is legible a d i which it ca be take away;

(e) seize a d detai items which may be required as evide ce.

(2) The Executive Director or a y perso delegated by him shall ot e ter a d search a y premises

without a warra t sig ed by a Magistrate.

(3) A Magistrate may issue a warra t where he is satisfied –

(a) that the Executive Director has reaso able grou ds for suspecti g that there are o a y

premises docume ts which it has power to require to be produced a d that those docume ts

have ot bee produced followi g a request; or

(b) that the Executive Director has reaso able grou ds for suspecti g that the docume ts

required to be produced, would be altered, suppressed or disposed of.

(4) Where a Magistrate is satisfied that the Executive Director has reaso able grou ds to believe that a

perso , i executi g the warra t, has bee or will be refused access to a y premises or docume t,

the Magistrate may direct a police officer to take such steps as are reaso ably ecessary to e ter the

premises a d to e able the warra t to be executed.

(5) The ow er, occupier or perso i charge of a y premises i respect of which a authorised officer

e ters pursua t to a warra t issued u der this sectio shall provide the officer with all reaso able

facilities a d assista ce i the exercise of his powers.

54. Legal professional privilege

(1) Nothi g i this Part shall require a perso to disclose or produce i formatio or a docume t that the

perso would i a actio i a court be e titled to refuse to disclose or produce o the grou ds of

legal professio al privilege.

(2) Notwithsta di g subsectio (1), a law practitio er shall disclose the ame a d address of a clie t to

the Executive Director whe required to do so by the Executive Director i the exercise of his powers

u der this Act.

PART V – HEAR NGS BEFORE THE COMM SS ON

55. Convening of hearings

(1) Upo receipt of a report u der sectio 51, the Commissio may, if the party u der i vestigatio so

requests, co ve e a heari g at which the Commissio ers ca hear the views of a y perso they

co sider to have a releva t i terest i the case.

(2) A mi imum of 3 Commissio ers shall atte d the heari g.

(3) A heari g shall be gover ed by a d be co ducted i accorda ce with rules published by the

Commissio u der sectio 38.

56. Penalties and directions

(1) The Commissio shall ot impose a pe alty o , or give a directio to, a e terprise, u der Part VI,

u less it has held a heari g i relatio to that e terprise.

(2) Notwithsta di g subsectio (1), the Commissio may impose a pe alty or make a directio if the

e terprise co cer ed has elected ot to atte d a heari g requested by the Commissio or has failed

to atte d a heari g whe required to do so by the Commissio .

57. Conflict of interests

A Commissio er shall ot atte d a heari g if the Commissio er has a direct or i direct i terest i the

outcome of the i vestigatio to which the heari g relates.

PART V – DETERM NAT ON OF CASES BY COMM SS ON, PENALT ES AND REMED ES

58. Directions by Commission

(1) Where a restrictive agreeme t falls withi the scope of sectio s 41, 42 a d 43, the Commissio may

give the e terprise such directio s as the Commissio co siders appropriate to e sure that the

e terprise ceases to be a party to the restrictive agreeme t.

(2) A directio u der subsectio (1) may, i particular, require the e terprise to termi ate or modify the

agreeme t withi such period as may be specified by the Commissio .

(3) A directio give u der this sectio shall be i writi g.

59. Financial penalty

(1) The Commissio may, i relatio to a restrictive agreeme t falli g withi the scope of sectio s 41, 42

a d 43, i additio to, or i stead of, givi g a directio , make a order imposi g a fi a cial pe alty o

the e terprise.

(2) The Commissio shall ot impose a fi a cial pe alty u less it is satisfied that the breach of the

prohibitio was committed i te tio ally or eglige tly.

(3) Where the Commissio imposes a fi a cial pe alty o a e terprise, the fi a cial pe alty shall ot

exceed 10 per ce t of the tur over of the e terprise i Mauritius duri g the period of the breach of the

prohibitio up to a maximum period of 5 years.

(4) A order imposi g a pe alty u der subsectio (1) shall be i writi g a d shall specify the date before

which the pe alty is required to be paid.

(5) The date specified u der subsectio (4) shall ot be earlier tha the e d of the period withi which a

appeal agai st the order may be brought u der Part VIII.

(6) Where a pe alty has ot bee paid withi the specified date a d -

(a) o appeal agai st the order was brought u der Part VIII; or

(b) a appeal was made but dismissed or withdraw ,

the Commissio may apply to the Judge i Chambers for a ma datory order to e force the payme t

of the pe alty agai st the e terprise co cer ed.

(7) The Commissio may gra t immu ity or le ie cy to a y perso i such circumsta ces as may be prescribed.

Amended by [Act No. 27 of 2012]

60. Directions relating to distortion, prevention or restriction of competition

(1) Where the Commissio determi es, after review, that a e terprise is a party to a restrictive

agreeme t falli g withi the terms of sectio 44 or 45 or that it is a party to a mo opoly situatio falli g

withi the terms of sectio 46, a d that -

(a) i relatio to the restrictive agreeme t, the agreeme t has the object or effect of preve ti g,

restricti g or distorti g competitio ; or

(b) i relatio to the mo opoly situatio , a y co duct of the e terprise -

(i) has the object or effect of preve ti g, restricti g or distorti g competitio , or

(ii) i a y other way, co stitutes exploitatio of the mo opoly situatio ,

the Commissio may give the e terprise such directio s as it co siders ecessary, reaso able a d

practicable to –

(A) remedy, mitigate or preve t the adverse effects o competitio that the

Commissio has ide tified; or

(B) remedy, mitigate or preve t a y detrime tal effects o users a d co sumers so

far as they have resulted from, or are likely to result from, the adverse effects

o , or the abse ce of, competitio .

(2) I determi i g, i a y particular case, the remedial measures required to be take , the Commissio

shall have regard to the exte t to which a y of the offsetti g be efits specified i sectio 50(4) are

prese t i that case.

(3) Subject to subsectio s (1) a d (2), a directio u der this sectio may i clude, but is ot limited to, a

requireme t that the e terprise to which it is give shall -

(a) termi ate or ame d a agreeme t;

(b) cease or ame d a practice or course of co duct, i cludi g co duct i relatio to prices;

(d) separate or divest itself of a y e terprise or assets;

(e) provide the Commissio with specified i formatio o a co ti ui g basis.

(4) A directio give u der this sectio shall be i writi g.

61. Remedies in merger control

(1) Where the Commissio determi es, after i vestigatio that -

(a) a e terprise is a party to a merger situatio ; a d

(b) the creatio of the merger situatio has resulted, or is likely to result, i a substa tial lesse i g

of competitio withi a market for goods or services,

the Commissio may give the e terprise such directio s as it co siders ecessary, reaso able a d

practicable to -

(i) remedy, mitigate or preve t the substa tial lesse i g of competitio ; a d

(ii) remedy, mitigate or preve t a y adverse effects that have resulted from, or are likely to

result from, the substa tial lesse i g of competitio .

(2) I the case of a prospective merger, a directio may require a e terprise to -

(a) desist from completio or impleme tatio of the merger i sofar as it relates to a market i

Mauritius;

(b) divest such assets as are specified i the directio withi the period so specified i the

directio , before the merger ca be completed or impleme ted;

the directio as a co ditio of proceedi g with the merger.

(3) I the case of a completed merger, a directio may require a e terprise to -

(a) divest itself of such assets as are specified i the directio withi the period so specified i the

directio ;

(b) adopt, or to desist from, such co duct, i cludi g co duct i relatio to prices, as is specified i

the directio as a co ditio of mai tai i g or proceedi g with the merger.

(4) A directio give u der this sectio shall be i writi g.

62. nterim measures

(1) Where –

(a) the Commissio has reaso able grou ds to suspect that a e terprise is a party to a

prohibited agreeme t a d has ot completed its exami atio of the matter, but believes that

there is the risk of serious or irreparable damage to a particular perso as a co seque ce of

the agreeme t;

(b) a e terprise is a party to a agreeme t which is subject to review, to a mo opoly situatio or

to a merger situatio , o which the Commissio has ope ed but ot completed a

i vestigatio , a d where the Commissio is satisfied that -

(i) there is prima facie evide ce that competitio is bei g preve ted, restricted, distorted

or substa tially lesse ed a d that, i co seque ce, serious or irreparable damage may

be caused to a particular perso ; or

(ii) the e terprise is taki g steps that would effectively pre-empt remedial actio bei g

take that would restore the co ditio s of competitio existi g prior to the i vestigatio ,

the Commissio may, after havi g take cog iza ce of the report of the Executive Director o the

matter, give such directio s as it co siders appropriate if, as a matter of urge cy, it co siders it is

ecessary to do so to –

(A) preve t serious or irreparable damage to a particular perso or category of

perso s;

(B) protect the public i terest; or

(2) A directio give u der this sectio shall be i writi g.

(3) The Commissio shall give a e terprise to which it i te ds to give a directio the opportu ity to make

represe tatio s before the directio is give .

63. Undertakings

(1) A e terprise may offer a writte u dertaki g to the Commissio to address a y co cer that has

arise , or is likely to arise, duri g a i vestigatio i respect of a restrictive agreeme t subject to

i vestigatio , a mo opoly situatio or a merger situatio .

(2) The u dertaki g may be offered before the start of the i vestigatio or at a y stage duri g the

i vestigatio .

(3) The Commissio may, after havi g take cog iza ce of the report of the Executive Director o the

matter, determi e a case o the basis of a u dertaki g if it co siders that the u dertaki g

satisfactorily addresses all the co cer s it has about a y preve tio , restrictio distortio or

substa tial lesse i g of competitio .

(4) A u dertaki g accepted by the Commissio shall be published by the Commissio i the form of a

decisio of the Commissio .

(5) A u dertaki g accepted by the Commissio shall have effect as if it were a directio u der sectio

60.

64. Keeping directions and undertakings under review

(1) The Commissio shall keep u der review the complia ce with directio s give by it a d the

performa ce of u dertaki gs give by a e terprise.

(2) The Commissio may, where it is satisfied that there has bee a material cha ge of circumsta ces -

(a) agree to vary or termi ate a directio ; or

(b) accept a variatio to a u dertaki g or release a e terprise from a u dertaki g.

65. Enforcement of directions and undertakings

(1) Where the Commissio determi es that a e terprise has failed, without reaso able excuse, to

comply with a directio or u dertaki g, the Commissio may, subject to subsectio (2), apply to the

Judge i Chambers for a ma datory order requiri g the e terprise to make good the default withi a

time specified i the order.

(2) The Commissio shall co sider a y represe tatio s the e terprise wishes to make before maki g a

applicatio u der subsectio (1).

(3) The Judge i Chambers may provide i the order that all the costs of, or i cide tal to, the applicatio

shall be bor e by the e terprise i default.

PART V – RELAT ONSH P BETWEEN COMM SS ON AND OTHER REGULATORS

66. Memorandum of Understanding between Commission and regulators

The Commissio a d regulators shall e ter i to a memora dum of u dersta di g gover i g the effective

exercise of their respective respo sibilities a d establishi g mecha isms for practical co-operatio i the

exercise of those respo sibilities, i cludi g the use of the sector-specific expertise of the regulators i respect

of i vestigatio s u der this Act.

PART V – APPEALS

67. Appeal to Supreme Court

(1) (a) A y party who is dissatisfied with a order or directio of the Commissio may appeal to the

Supreme Court agai st that order or directio .

(b) A y party wishi g to appeal to the Supreme Court u der paragraph (a) shall, withi 21 days of

the date of the order or directio of the Commissio , lodge with the Registry of the Supreme

Court a d the Commissio a writte otice of appeal.

(2) A appeal u der this sectio shall be prosecuted i the ma er provided by rules made by the Chief

Justice.

68. Powers of Supreme Court on appeal

O appeal, the Supreme Court may –

(a) affirm, reverse, ame d or alter a order or directio of the Commissio ;

(b) remit the matter to be further determi ed by the Commissio with its opi io o the matter; or

69. Decision not suspended on appeal

No appeal u der this Part shall operate as a stay of a order or directio give by the Commissio , except for

a order imposi g a fi a cial pe alty o a e terprise.

PART X - M SCELLANEOUS

70. Disclosure of information

(1) No Commissio er, or the Executive Director or a y other staff of the Commissio shall -

(a) disclose a y i formatio relati g to the affairs of the Commissio , a y particular busi ess or

the affairs of a i dividual, which he has obtai ed u der or by virtue of a y of the provisio s of

the Act, u less such disclosure is made –

(i) with the writte authorisatio of the perso carryi g o the busi ess or the i dividual,

from whom the i formatio was obtai ed;

(ii) for the purpose of the admi istratio or e forceme t of this Act;

(iii) i co ectio with the i vestigatio s of a y crimi al offe ce;

(iv) for the purpose of respo di g to a request made by a foreig or multi atio al

competitio authority for the productio of i formatio i circumsta ces where

Mauritius is a party to a i ter atio al agreeme t providi g for the productio or

excha ge of such i formatio ;

(v) i complia ce with the requireme ts of a y Court or the provisio s of a y other

e actme t;

(b) use, for his ow perso al be efit or for the be efit of a y other perso , make use of a y

i formatio , whether directly or i directly, which has bee obtai ed by him u der or by virtue

of a y of the provisio s of this Act.

(2) A y perso who co trave es subsectio (1) shall commit a offe ce a d shall, o co victio , be

liable to a fi e ot exceedi g 200,000 rupees a d to impriso me t for a term ot exceedi g 5 years.

71. Offences

(1) A y perso who –

(a) fails without reaso able excuse to comply with a requireme t imposed o him u der this Act;

(b) i respo se to a requireme t, or otherwise i co ectio with a y of the fu ctio s of the

Commissio u der this Act, gives to the Commissio i formatio which he k ows is false or

misleadi g i a material particular, or recklessly gives to the Commissio i formatio which is

false or misleadi g i a material particular;

particular, or recklessly gives to the Executive Director i formatio which is false or misleadi g

i a material particular;

(d) k owi g of the maki g of a requireme t for the productio of a docume t, alters, suppresses

or disposes of it, or causes it to be altered, suppressed or disposed of;

(e) obstructs the executio of a warra t issued u der sectio 53;

(f) refuses to take a oath at a heari g before the Commissio ;

(g) fails to a swer fully a d satisfactorily to the best of his k owledge a d belief a y questio put

to him by the Commissio i the exercise of powers u der sectio s 52 a d 53; or

(h) i sults, i terrupts or otherwise commits a y co tempt of the Commissio ,

shall commit a offe ce.

(2) A y perso who co trave es subsectio (1) shall commit a offe ce a d shall, o co victio , be

liable to a fi e ot exceedi g 500,000 rupees a d to impriso me t for a term ot exceedi g 2 years.

(3) Notwithsta di g -

(a) sectio 114(2) of the Courts Act; a d

(b) sectio 72(5) of the District a d I termediate Courts (Crimi al Jurisdictio ) Act,

a Magistrate shall have jurisdictio to try a offe ce u der this Act or a y regulatio s made

thereu der a d may impose a y pe alty provided u der this Act.

72. Regulations

(1) The Mi ister may make such regulatio s as he thi ks fit for the purposes of this Act.

(2) The Mi ister may, by regulatio s, ame d the Schedule.

(3) Regulatio s made u der subsectio (1) may provide that a y perso who co trave es them shall

commit a offe ce a d shall, o co victio , be liable to a fi e ot exceedi g 500,000 rupees or to

impriso me t for a term ot exceedi g 2 years.

73. Repeal

The followi g e actme ts are repealed –

(a) the Competitio Act 2003;

(b) sectio 6 of the Fair Tradi g Act.

74. Consequential amendments

(1) The Statutory Bodies (Accou ts a d Audit) Act is ame ded i the Schedule, i Part II, by i serti g i

the appropriate alphabetical order the followi g statutory body -

Competitio Commissio

(2) The Statutory Bodies Pe sio Fu ds Act is ame ded i the Schedule, by i serti g i the proper

alphabetical order, the followi g ew item -

Competitio Commissio

75. Commencement

Proclaimed by [Proclamation No. 17 of 2008] w.e.f. 24 October 2008 [PART & PART ]

2 Proclaimed by [Proclamation No. 31 of 2009] w.e.f 25 November 2009

3 Parts – X 4 5 0 (1) This Act shall come i to operatio o a date to be fixed by Proclamatio .

0 (2) Differe t dates may be fixed for the comi g i to operatio of differe t sectio s of this Act.

1 Passed by the Natio al Assembly o the fourth day of December two thousa d a d seve .

Ram Ramjit Dowlutta Clerk of the Natio al Assembly

__________

SCHEDULE (sectio 3(4))

PART A

Agreements or practices excluded from the Act

1. A y practice of employers or a y agreeme t by which employers are parties i sofar as it relates to the

remu eratio , terms or co ditio s or employme t of employees.

2. A y agreeme t i sofar as it co tai s provisio s relati g to the use, lice ce or assig me t of rights u der or

existi g by virtue of laws relati g to copyright, i dustrial desig , pate ts, trade marks or service marks.

3. A y practice or agreeme t approved or required u der a i ter atio al agreeme t to which Mauritius is a

party.

PART B

Products excluded from the Act

21. Petroleum products

12. Liquid petroleum gas

Competition Act 2007 (Act No. 25 of 2007, as amended by Act No. 27 of 2012), Mauritius

Available Materials