Compet t on Comm ss on Rules of Procedure 2009
GN 161/2009 Government Gazette of Maur t us No. 109 of 12 December 2009
THE COMPETITION ACT 2007
Not ce s hereby g ven that the Compet t on Comm ss on has, pursuant to sect on 38 of the Compet t on Act 2007,
made the follow ng procedural rules -
ARRANGE ENT OF SECTIONS
PART I: PRELIMINARY
1. Short title
2. Interpretation
3. Application and effect of rules
PART II: INITIATION OF PROCEEDINGS
4. Duty of the Executive Director
5. Enquiry by the Executive Director
6. Complaint
7. Application for guidance
PART III: INVESTIGATION BY EXECUTIVE DIRECTOR
8. Prioritisation
9. Time Table
10. Production of documents or information
11. Particulars of notice
12. Entry and Search
13. Report on interim measures
14. Provisional finding
15. Final findings and report
16. Remedies
___________
17. Procedure for other matters
PART IV: PROCEEDINGS BEFORE THE COMMISSION
18. The Secretary
19. eetings of the Commission
20. Direction on Interim easures
21. Duration of Interim easures
22. Requirement for hearing
23. Conduct of hearing
24. Public access to hearing
25. Permitting other persons to take part in proceedings
26. Submissions or arguments before the Commission
27. Proceedings in absence of party
28. Undertakings
29. Final Direction
PART V: DISCLOSURE AND CONFIDENTIALITY
30. Disclosure of information
31. Confidentiality
32. Notice of Appeal
33. Decision on Appeal
PART I: PRELIMINARY
1. Short t tle
These rules may be cited as the Compet t on Comm ss on Rules of Procedure 2009.
2. Interpretat on
(1) In these rules -
"Act" means the Competition Act 2007;
"auxiliary party" means a party who has an interest in the matter and has provided
evidence to the Commission or to the Executive Director and includes a complainant;
"complaint" means a complaint made under rule 6;
"hearing" means hearing proceedings held by the Commission by virtue of sections 55
and 56 of the Act;
"main party" means the party who is subject of an investigation;
"party" includes a main party and an auxiliary party;
"person" and words applied to a person or individual shall apply to and include a group
of persons, whether corporate or unincorporate;
"provisional finding" means a finding contained in a preliminary report;
"public holiday" means a day prescribed as such in the Public Holidays Act.
(2) (a) Words importing the masculine shall include the feminine and the neuter.
(b) Words in the singular shall include the plural.
(c) Words in the plural shall include the singular.
(d) References to the whole shall include references to a part.
(3) Where a word or expression is defined or explained in the Act, the word or
expression shall have the same meaning in these rules.
(4) Effect shall be given to these rules according to its true intent, meaning and spirit.
(5) Where a word or expression is defined in these rules, the definition shall with
necessary modification extend to any grammatical variation or cognate
expression of that word or expression.
(6) In computing time for the purposes of these rules, recourse shall be had to
section 38 of the Interpretation and General Clauses Act.
(7) Any order, warrant or process may be issued, served or executed and any
search or seizure may be carried out or made on any day, whether a public
holiday or not, and at any hour of the day or night.
(8) Where these rules provide that a person shall take an oath, that person may
make an affirmation or declaration in lieu of the oath.
Amended by [GN No. 202 of 2011]
3. Appl cat on and effect of the rules
(1) These rules shall apply in relation to a merger, a monopoly situation, collusive
agreements and any other restrictive business practice falling under the Act.
(2) These rules, which concern the functions of the Executive Director and the
Commission, are binding on -
(a) the Commissioners;
(b) the Executive Director;
(c) any staff of the Commission; and
(d) any person or enterprise who or which is an auxiliary party or a main party.
(3) If at any time the Executive Director or Commission encounters a situation which
is not provided for in these rules, he or it shall determine the procedure to be
adopted.
(4) Any person to whom the Executive Director has delegated his powers pursuant
to section 31 of the Act may exercise any of the powers conferred on the
Executive Director in these rules other than the power to make a finding or a
report.
PART II: INITIATION OF PROCEEDINGS
4. Duty of the Execut ve D rector
The Executive Director shall, subject to section 5(4), investigate or cause to be
investigated what he has reasonable grounds to believe is a restrictive business
practice where:
(a) he has received a complaint that a restrictive business practice may have
occurred or may be occurring or about to occur; or
(b) it has otherwise come to his knowledge that a restrictive business practice
may have occurred or may be occurring or about to occur.
5. Enqu ry by the Execut ve D rector
(1) The Executive Director may make such enquiries as he thinks appropriate:
(a) pursuant to his powers to keep markets in auritius and conditions of
competition in those markets in constant review under section 30(a) of the
Act;
(b) pursuant to his powers to undertake general studies on the effectiveness of
competition in individual sectors of the economy in auritius under section
30(h) of the Act;
(c) in order to satisfy himself that there is reasonable ground to believe that a
restrictive business practice has occurred or is occurring or about to occur;
or
(d) where the Commission requests him to do so in relation to an application
made under section 7.
(2) An enquiry made by the Executive Director may include:
(a) a specific request for information from any enterprise or groups of
enterprises;
(b) an invitation to provide information on any specific matter, case, event or
business agreement or transaction;
(c) an invitation to attend the office of the Executive Director for an interview;
(d) a request for written explanations or otherwise as required for the purposes
of the issue at hand; or
(e) a visit to a locus or site, whether accompanied or not by officers of the
Commission.
(3) The Executive Director shall keep a written record of any such enquiry.
(4) The Executive Director may, where any enterprise is not collaborating or is
delaying unreasonably in relation to an enquiry, consider that state of affairs as
being reasonable grounds for believing that a restrictive business practice has
occurred or is occurring or is about to occur.
6. Compla nt
(1) A complaint shall be lodged with the Executive Director by filling in the form
available on the Commission's website or the business premises of the
Commission.
(2) The lodging of a complaint may be made by email to the address mentioned on
the Commission's website or by physical delivery to the Commission, and
addressed to the Executive Director.
(3) The Executive Director shall respect the anonymity of the complainant, at his
request, where the Executive Director is of the view that the interests of the
complainant would be harmed by the disclosure of his name.
(4) There shall be kept at the Commission a register of complaints which shall be
accessible to the public during office hours of the Commission.
(5) Where, at any time after receipt of a complaint, the Executive Director is satisfied
that the matter raised in the complaint is directly and substantially similar to a
previous complaint, he may consolidate two or more similar complaints, as the
case may be, for consideration.
(6) Within a period to be determined by the Executive Director, which shall in no
case exceed 2 years, he shall:
(a) deal with the complaint by forwarding his report to the Commission where
he has established that a restrictive business practice has occurred or is
occurring or about to occur; or
(b) inform the Commission that there is no restrictive business practice which
has occurred or is occurring or about to occur and issue a notice to that
effect to the complainant.
7. Appl cat on for gu dance
(1) An enterprise may where it wishes to obtain guidance from the Commission
before proceeding with a merger, apply to the Commission for guidance.
(2) An application for guidance under paragraph (1) shall contain -
(a) the name of the applicant;
(b) the business address of the applicant;
(c) a succinct narrative of the effect of the merger;
(d) the signature of any authorized representative of the enterprise;
(e) such other particulars as are relevant to the proposed merger; and
(f) any other information that the commission may deem necessary.
(3) An enterprise may where it wishes to propose an undertaking to the Commission
to address any concern that has arisen, or is likely to arise during an
investigation, apply to the Commission for guidance.
(4) An application for an undertaking guidance under paragraph (3) shall contain -
(a) the name of the applicant;
(b) the business address of the applicant;
(c) a succinct narrative of the alleged contraventions of the Act;
(d) the signature of any authorized representative of the enterprise;
(e) such other particulars as are relevant to the undertaking; and
(f) any other information that the Executive Director may deem
necessary.
(5) Where, at any time after receipt of an application under paragraph (1) and (3),
the Executive Director is satisfied that the matter raised in the application is
directly and substantially similar to a previous application, it may consolidate two
or more similar applications for consideration.
PART III: INVESTIGATION BY EXECUTIVE DIRECTOR
8. Pr or t sat on
Where the Executive Director is in receipt of 2 or more complaints or has already
identified on his own any investigation to be conducted, he may prioritise
investigations.
9. T me Table
(1) The Executive Director shall make arrangements for an administrative timetable
to be drawn up which shall make provision for the major stages of an
investigation.
(2) The major stages of an investigation may include -
(a) gathering information;
(b) examining parties or witnesses;
(c) verifying information;
(d) setting out a statement of issues;
(e) considering responses to a statement of issues;
(f) notifying of provisional findings;
(g) notifying and considering possible remedies;
(h) considering exclusion from disclosure; and
(i) submitting his report to the Commissioners.
(3) The Executive Director may, when drawing up the administrative timetable, have
regard to any comments which the parties involved have submitted to him.
(4) Once the administrative timetable has been drawn up, the Executive Director
shall make such arrangements as he thinks appropriate for it to be notified to all
the parties involved and the Executive Director may provide notification of the
timetable on its website or any other media, he considers appropriate.
(5) The administrative timetable should normally provide that the duration of an
investigation shall not -
(a) in the case of a merger, exceed 6 months;
(b) in the case of any other restrictive business practices, exceed 18 months.
(6) Where at any point during an investigation, the Executive Director has reason to
believe that the administrative timetable will not be met for any reason, he shall
prepare a revised timetable to which the notification requirements contained in
paragraph(4) shall apply.
10. Product on of documents or nformat on
(1) Where the Executive Director exercises his powers of investigation, he may
require any person to produce any book, document, record or article or to provide
specified information in a written statement, which relates to any matter relevant
to the investigation including market share information or a description of a
particular market.
(2) Any request under paragraph (1) shall be exercised by service of a written notice
signed by the Executive Director.
(3) A request under paragraph (1) shall not be limited to any number, and the
Executive Director may require a person to produce further information after
considering the material produced in response to an earlier notice.
(4) A request for information may be made to any person including an enterprise
suspected of breach, its officers (past or present) or any third parties, including a
complainant, supplier, customer, a competitor or any other enterprise.
(5) Where material related to an investigation consists of information stored in a
computer, disc, cassette, or on microfilm, or preserved by any mechanical or
electronic device, the request from the Executive Director shall be taken to
require the person named in the notice to produce or give access to it in a form in
which it can be taken away and in which it is visible and legible.
(6) Where he has requested a person to produce a document, the Executive
Director may -
(a) take copies or extracts from any document produced; or
(b) require the person served with a notice to produce the document (or any
past or present officer or employee of that person) to provide an
explanation of the document produced.
(7) The Executive Director may require information to be compiled and produced if it
is not already in recorded form.
11. Part culars of not ce
(1) A notice under section 10(2) shall -
(a) state the subject matter and purpose of the investigation;
(b) generally describe or specify the document or information, or categories of
documents or information, required;
(c) set out the nature of the offence that may be committed if a person fails to
comply with the notice;
(d) state the time and place at which a document or information must be
produced and the manner and form in which it is to be produced; and
(e) set out the time and place where an oral examination shall be conducted.
(2) A person who provides information to the Executive Director will be given the
opportunity to amend, add to or delete from the written record and will be asked
to sign against the record.
(3) (a) The notice may be delivered personally or sent by registered post to the
last known address of a person.
(b) Service by registered post shall be effected by addressing and posting a
letter containing the document and be presumed to have been effected at
the time when the letter would be delivered in the ordinary course of post.
(c) Service of the notice may also be effected by sending through facsimile
transmission or by electronic mail.
(4) Where the notice is required to be served on a company, société or other
corporate body, it shall be served by leaving it:
(a) at the registered office or principal place of business of the entity; or
(b) in the case of a foreign entity, with a person authorized to accept service of
process on its behalf.
(5) Where the Executive Director is satisfied that the recipient of the order is
avoiding service or that for any other reason it cannot be served in the ordinary
way, he may effect service by an advertisement in any local newspaper.
(6) When setting the appropriate time limit for the production of a document or
information, the Executive Director shall consider, inter alia, the amount and
complexity of the information required, the resources available to the recipient of
the notice and the urgency of the case.
12. Entry and search
(1) Where the Executive Director exercises his powers of investigation, he may enter
and search the premises of any person and take possession of documents or
copies of them with a warrant signed by a agistrate.
(2) Any owner, occupier or person in charge of the premises shall provide the
Executive Director with a properly executed warrant with all reasonable facilities
and assistance in the exercise of his powers.
(3) The Executive Director will cause to be provided to the occupier or his
representative a list of any documents removed from the premises.
(4) Where an original document is removed, it shall, if a request is made, be
returned within a reasonable period, having regard to the complexity of the
document or the investigation unless the document is required for the purposes
of evidence.
(5) Where an original document which has been removed is retained by the
Executive Director, the occupier of the premises or his representative may ask for
and obtain a copy at his own cost.
(6) The Executive Director may take any other step which he feels necessary in
order to preserve a document or prevent interference with it.
(7) The Executive Director may also -
(a) require any person to provide an explanation on any document or to state
where the document may be found;
(b) require any information which is stored in any electronic form and is
accessible from the premises, to be produced in such form in which it can
be taken away and read;
(c) remove from the premises for examination any equipment or article which
relates to any matter relevant to the investigation, such as a computer, a
data storage device or a recording device; or
(d) seize and detain any items on the premises which may be required for the
purposes of evidence.
13. Report on nter m measures
(1) The Executive Director may make a report on interim measures on any matter
that is the subject of an enquiry or investigation -
(a) where there is a risk of serious or irreparable damage to any person; or
(b) to prevent pre-emptive action being taken by an enterprise.
(2) The Executive Director shall state in the report on interim measures, what, in his
opinion, may constitute serious damage, but such opinion shall be based on facts
and will depend upon the circumstances of each case and, in assessing serious
damage, the Executive Director shall consider -
(a) whether a particular person or category of persons may suffer considerable
competitive disadvantage which is likely to have a lasting effect on his
position;
(b) significant financial loss which may occur to a person (to be assessed with
reference to that person's size of business or financial resources as well as
the proportion of the loss in relation to the person's total revenue);
(c) significant damage to the goodwill or reputation of a person;
(d) threat of insolvency; or
(e) any other form of damage, which although less serious, but may still be
irreparable, in so far as it cannot be remedied in later intervention.
14. Prov s onal f nd ng
(1) On the completion of his investigation, the Executive Director may make a
provisional finding which he shall produce as a provisional or preliminary report
which –
(a) he shall notify to all parties to the enquiry or investigation, within 7 days of
the provisional report being finalized;
(b) the notice shall -
(i) describe the provisional findings in clear terms and provide an
explanation of his reasons for the finding;
(ii) invite the parties, within such period being not less than 21 days as
may be specified in the notice, to provide the Executive Director with
reasons in writing as to why such provisional findings should not
become final; and
(iii) not contain any information that the Executive Director considers
should be excluded from the notice having regard to any
confidentiality provisions under any enactment, or any commercially
sensitive information.
(c) any comment on a provisional finding shall be made in writing to the
Executive Director who may hold additional meetings or carry out further
investigation as required to complete his investigation pursuant to any new
information received in the comment.
(d) where any party provides a written comment after the date specified in the
notice, the Executive Director shall not be obliged to take them into
account, unless there are valid reasons for non-compliance with the date
by which the response should have been submitted.
15. F nal f nd ngs and report
(1) Once the Executive Director has had regard to any reasons in writing or oral
evidence submitted or given to him following a notice of a provisional finding, he
shall take his final decision and proceed to make the report final and submit it to
the Commission with his recommendations.
(2) The Executive Director may, for the purpose of preparing his report, send any
material which has been produced back to any person of body so that its
accuracy can be verified.
(3) Any party to whom material has been sent back pursuant to paragraph (2) may
request the Executive Director to exclude it from his report.
(4) The Executive Director may exclude any matter from a report where he
considers that publication of the matter would be inappropriate, and in deciding
what is inappropriate for this purpose, he shall have regard to the confidentiality
provisions under any enactment or any other commercially sensitive information.
(5) Any such exclusion shall not prejudice an enterprise in relation to obtaining any
information it requires to meet the case which has been put against it.
(6) Where the Executive Director submits his report to the Commission, he may -
(a) refer to all the particulars of the complaint;
(b) refer only to some of the particulars of the complaint; or
(c) add particulars to the complaint; or
(d) notify the Commission of any agreement of confidentiality which has been
reached between the complainant and himself.
(7) A copy of the report shall be published on the Commission's website.
16. Remed es
(1) The Executive Director shall have regard to the desirability of giving notice of any
action which he considers may be taken by the Commission for the purpose of
remedying the effects of, or ceasing, a restrictive business practice or any
relevant penalty.
(2) A notice under paragraph (1) of proposed remedies may be contained in the
provisional report but, if it is not, the Executive Director shall notify the parties as
soon as is reasonably practicable after he has notified them of a provisional
finding.
(3) A copy of a notice on remedies shall be published on the Commission's website
and in such other media as the Executive Director may consider appropriate.
(4) A notice published under paragraph (3) shall not contain any information which
the Executive Director considers should be excluded from the notice having
regard to the confidentiality provisions in any enactment or any commercially
sensitive information.
17. Procedure for other matters
The Executive Director shall, for matters in relation to an undertaking on a proposed
merger situation referred to the Commission, also carry out such relevant enquiry or
investigation required and follow the same procedure as set out in this Part.
PART IV: PROCEEDINGS BEFORE THE COMMISSION
18. The Secretary
(1) The Commission shall appoint a fit and proper person who shall be the Secretary
to the Commission.
(2) The Secretary shall -
(a) be the custodian of the records of the Commission;
(b) allow inspection of the records relevant to a hearing subject to any
instructions for such exclusion given by the Chairperson in relation to non-
disclosure of any matter on record;
(c) keep a register of complaints received by him which shall be open to public
inspection;
(d) compile a record of any proceeding during a meeting of the Commission
including -
(i) the chronology of events;
(ii) the initiating document;
(iii) the notice of meeting;
(iv) a report of the Executive Director, if any;
(v) any interim order or direction made or given;
(vi) all documentary evidence filed;
(vii) the transcript, if any of oral evidence given;
(viii) the final order or direction of the Commission;
(ix) any notice of appeal; and
(x) any review of any order or remedy.
(e) take written notes of the hearing proceedings before the Commission;
(f) keep two records for each case file as follows-
(i) one for the purposes of the Commission which includes every item of
information, including those which are confidential under the Act; and
(ii) one for the purposes of inspection or publication, which excludes all
information which may be considered confidential by the
Commission; and
(g) exercise such other functions as may be assigned to him by the
Chairperson or the Executive Director.
19. Meet ngs of the Comm ss on
(1) The Commission shall meet at such time and place as may be determined by the
chairperson for the purposes of discharging its functions under the Act.
(2) The Secretary and any other officer of the Commission whose presence is
required shall attend a meeting of the Commission.
(3) The duration of each hearing shall be as directed by the Chairperson and every
party to the proceedings shall be granted such opportunity to present its case as
is considered appropriate by the Commission.
(4) The Commission may direct any party to file written submissions which shall be
considered with the replies of the other parties to the proceedings or grant an oral
hearing to any party if it considers necessary.
(5) The Commission may, for reasons to be recorded in writing, adjourn a meeting.
20. D rect on on Inter m Measures
(1) The Commission may give such directions on interim measures as it considers
appropriate, and in particular, require the enterprise concerned to -
(a) terminate an agreement;
(b) cease the conduct in question;
(c) prevent irreversible integration of the two businesses in case of a merger; or
(d) modify the agreement or conduct.
(2) Where the Commission intends to give an enterprise a direction on interim
measures, it shall inform the enterprise of -
(a) its intention to give the direction;
(b) the nature and type of the direction; and
(c) the reasons for giving the direction.
(3) The Commission shall, before the direction is given; give the enterprise an
opportunity to make representations in writing or, if the enterprise so requests,
orally.
(4) The Commission may, if representations are made within 21 days by the
enterprise and the Commission is satisfied with the representations, vary the
direction or decide not to issue it.
21. Durat on of nter m measures
(1) A direction on interim measures shall have effect until -
(a) the Executive Director has discontinued his investigation;
(b) the Executive Director has completed his investigation and recommends
the termination of the interim measures, and the Commission is satisfied by
the recommendations of the Executive Director; or
(c) the Commission considers there is no longer any necessity to act as a
matter of urgency to prevent any serious or irreparable damage to a
particular person or category of persons or for the protection of the public
interest.
(2) Where a review or investigation has been completed and the Commission has
decided that a breach of section 41 or 42 or 43 of the Act has taken place, it may
replace the direction on interim measures with such direction as it considers
appropriate.
22. Requ rement for hear ng
(1) The Commission may conduct a hearing on receipt of a report under section 52
of the Act, if the party under investigation has made a request for a hearing.
(2) The Commission shall conduct a hearing where -
(a) it intends to issue a direction as provided for in section 58 of the Act; or
(b) it proposes to make an order for a penalty as provided for in section 59 of
the Act.
(3) (a) Where the Commission proposes to give a direction or impose a penalty
under section 58 or 59 of the Act against an enterprise, it shall issue a
notice to the enterprise stating -
(i) the intention of the Commission to impose a penalty or issue a
direction;
(ii) the type and terms of the sanction; and
(iii) the right of the enterprise to appear before the Commission for a
hearing within such time as the Commission considers appropriate in
the circumstances, but not exceeding 21 days from the date of the
notice.
(b) Where a person is unable to attend a hearing within the period of 21 days
and proves to the satisfaction of the Commission that his inability to do so
was due to an illness or any other reasonable cause, the Commission may
accept to hear the person at a later date, on such terms and conditions as it
may determine.
(4) Where the Commission receives representations from the Executive Director
regarding compliance or non-compliance with a direction or performance or non-
performance of an undertaking by an enterprise, the Commission shall, before
reviewing the matter with a view to taking any action under section 64 or 65 of
the Act, conduct a hearing.
23. Conduct of Hear ng
(1) The Executive Director or any other officer shall have the right to be present
during a hearing and to make submissions on any matter before the
Commission, as well as to present any document or other evidence that may be
relevant to the matter.
(2) The relevant enterprise and the complainant shall, subject to paragraph (3), have
a right to make representations on any matter before the Commission, as well as
to present any document or other evidence that may be relevant to the matter.
(3) A party to the proceedings shall not be entitled to produce before the
Commission additional evidence, either oral or documentary, which was in his
possession or knowledge but was not produced before the Executive Director
during an investigation, except where -
(i) it is proved to the satisfaction of the Commission that the party was
not given sufficient opportunity by the Executive Director to adduce
such evidence at the investigation stage;
(ii) It is proved to the satisfaction of the Commission that the Executive
Director, deliberately or negligently omitted to consider such evidence
at the investigation stage; or
(iii) It would be in the interests of natural justice or otherwise to so
provide in the view of the Commission.
(4) Any party or witness in a hearing before the Commission may be represented by
counsel or attorney or other representative duly authorized by him who shall be
allowed reasonable opportunity to present his case and in particular to inspect
documents which the Commission proposes to consider in determining the case.
(5) The Commission may require any party to the proceeding to give evidence in
writing or orally.
(6) Where the Commission requires any evidence to be given orally, it shall, if it
considers it necessary or expedient, grant an opportunity to the other party or
parties, as the case may be, to cross examine the person giving the evidence.
(7) Nothing in this rule shall prevent the Executive Director from pursuing any
avenue or making any appropriate criminal complaint for any offence being
committed under the Act.
24. Publ c access to hear ng
(1) Except where the Commission otherwise directs, for reasons to be recorded, a
hearing before the Commission shall be open to public.
(2) In taking a decision not to open the proceedings to the public, or once opened, to
hold the proceedings in camera, the Commission may take into account the
following matters -
(a) whether disclosure to the public would cause significant harm to a party;
(b) the degree of inhibition or encouragement in providing information in public;
and
(c) the efficient and proper conduct of proceedings.
25. Perm tt ng other persons to take part n proceed ngs
(1) While considering a matter in a hearing, the Commission may permit a person to
take part in the proceedings and make any representation:
(a) if satisfied that a person has a substantial interest in the outcome of the
proceedings; and
(b) that it is necessary in the public interest to allow that person to present his
opinion on that matter.
(2) An application to make representation at a hearing shall be made in writing to the
Secretary.
26. Subm ss ons or arguments before the Comm ss on
(1) Any party to proceedings or his authorized representative shall declare to the
Commission at the earliest opportunity whether it intends to make oral or written
representations during the course of a hearing.
(2) Where a party to the proceedings or his authorized representative has chosen to
file written representations it shall arrange to forward copies thereof to all parties
to the proceedings sufficiently in advance and submit proof of the receipt by all
parties to the Secretary before the date fixed for consideration of the matter by
the Commission.
(3) The Commission may fix or limit the time during which the oral submissions or
written arguments shall be addressed or filed by the parties or their authorized
representatives before it and may proceed to decide a matter in the absence of
the party which does not abide by such timings.
27. Proceed ngs n absence of party
(1) Where on the day fixed for any particular matter including the day of the meeting
re-fixed on adjournment, any party to the proceeding does not appear after
service of notice, the Commission may decide to continue proceedings in the
absence of party and pass appropriate notices as it considers necessary.
(2) Where any party refuses access to or otherwise does not provide necessary
information within the stipulated time or significantly impedes a hearing, the
Commission may make such order or issue such direction as it considers
appropriate on the basis of available facts.
(3) Where an order or a direction has been made or issued by the Commission
under paragraph (1) or (2) and a party shows that it was prevented from
participating in the proceeding before the Commission or furnishing the
information required for reasons beyond its control, the Commission, on being
satisfied, may recall the notice or direction.
28. Undertak ngs
(1) An enterprise may, at any time before the start of or during an investigation give
an undertaking to the Commission in writing to address any concern that may
have arisen or is likely to arise during the investigation, which shall be signed by
at least two directors of the enterprise or any other authorized person and shall
contain -
(a) statement of facts;
(b) details of the alleged concern together with a list of documents or evidence,
in support of each alleged concern;
(c) the measures that the enterprise proposes to take as an undertaking to
address the concerns to the Commission.
(2) Where the undertaking satisfactorily addresses all the concerns of the
Commission about prevention, restriction, distortion or substantial lessening of
competition, or not to proceed with a merger, the Commission shall after having
taken cognizance of the report of the Executive Director on the matter, determine
the case on the basis of that undertaking.
(3) Where the Commission accepts the undertaking of an enterprise, it shall be
published in the form of a decision of the Commission and shall have the effect of
a direction of the Commission under section 60 of the Act.
(4) The Executive Director shall cause the direction to be published on the
Commission's website or any other media, excluding any matter which the
Commission may consider commercially sensitive.
(5) Any direction given by the Commission shall set out its reasons for giving the
direction.
29. F nal d rect on
(1) Every direction of the Commission shall be signed and dated by the
Commissioners who were present and heard the matter.
(2) Every direction of the Commission shall, as far as practicable be made or issued
within 40 days from the date of the conclusion of the final arguments.
(3) A copy of the direction shall be served on the parties to the proceedings within
four weeks of the date of the direction.
(4) A copy of the direction shall be published in the Gazette and on the website of
the Commission.
Amended by [GN No. 202 of 2011]
PART V: DISCLOSURE AND CONFIDENTIALITY
30. D sclosure of nformat on
(1) Subject to paragraph (2), the Commissioners, the Executive Director or any
officer of the Commission shall keep confidential any information relating to any
particular business or affairs of any person, obtained by virtue of the Act or these
Rules.
(2) Information obtained may be disclosed where -
(a) the person to whom the information relates gives his consent to the
disclosure;
(b) the disclosure is required for the purpose of giving a party under
investigation adequate information to prepare his defence or submissions
before the Commission;
(c) the disclosure is required for the purpose of administering or enforcing the
Act;
(d) it is needed in connection with any enquiry into a criminal offence;
(e) a request for the production of information has been made by a foreign or
multinational competition authority where auritius is a party to an
international agreement providing for the production or exchange of
information;
(f) the information is required by a Court; or
(g) the information is required under any other enactment.
(3) When disclosing a document to a party, the Executive Director may edit the
document to remove information, or may disclose figures in aggregate.
31. Conf dent al ty
(1) The Executive Director shall maintain the confidentiality of the identity of a
complainant on a request made to him in writing.
(2) Any party may submit a request in writing to the Executive Director that a
document be treated as confidential.
(3) A request under paragraph (2) shall only be considered if the document, or a part
or parts thereof, is made public and this will result in disclosure of trade secrets
or destruction or appreciable diminution of the commercial value of any
information or can be reasonably expected to cause serious injury.
(4) A request under paragraph (2) shall be accompanied by a statement setting out
cogent reasons for such treatment and to the extent possible the date on which
such confidential treatment shall expire.
(5) Where such a document, or a part or parts thereof, forms part of the party's
written submissions, a party shall file a complete version with the words
"restriction of publication claimed" on top of the first page and the word
'confidential' clearly and legibly marked near the top on each page together with
a public version, which shall not contain such document or part or parts thereof.
(6) The public version of such written submissions shall be an exact copy of the
confidential version with the omissions of the confidential information being
indicated in a conspicuous manner, as stipulated in paragraph (5).
(7) The public version of such written submissions alone shall be served on the
other parties.
(8) On receipt of a request under paragraph (2), the Executive Director, if satisfied,
shall direct that the document, or a part or parts thereof, shall be kept
confidential for the time period to be specified.
(9) The Commission or the Executive Director may also consider the following while
arriving at a decision regarding confidentiality -
(a) the extent to which the information is known to the public;
(b) the extent to which the information is known to the employees, suppliers,
distributors and others involved in the party's business;
(c) the measures taken by the party to guard the secrecy of the information;
and
(d) the ease or difficulty with which the information could be acquired or
duplicated by others.
(10) Any document, or a part or parts thereof, that have been granted confidential
treatment under this section shall be kept separate from the public record and
secured in a sealed envelope or any other appropriate container, bearing the
title, the file number of the proceeding, the notation "confidential record under
section 30" and the date on which confidential treatment expires.
(11) Where the Commission includes in any order or direction information that has
been granted confidential treatment under this section, it shall file two versions of
the order or direction, namely -
(a) the public version which shall omit the confidential information that appears
in the complete version, be marked "subject to confidentiality requirements
under section 30" on the first page, shall be served upon the parties, and
shall be included in the public record of the proceedings; and
(b) the complete version which shall be placed in the confidential record of the
proceedings.
PART VI: APPEALS
32. Not ce of appeal
Any party who wishes to exercise his right of appeal under section 67 of the Act shall
file with the Executive Director a copy of his notice of appeal which shall set out the
grounds of appeal.
33. Dec s on on appeal
Where the Commission is notified by the Registry of the Supreme Court of the contents
of the Court's decision on appeal, it shall, as appropriate, amend the record of its
decision or conduct a fresh hearing in the matter.