Loi sur la concurrence et le commerce équitable de 2006 (loi n° 11 de 2006), Guyana

GUYANA

Act No. 11 of 2006

COMPETITION AND FAIR TRADING ACT 2006

Arrangements of Sections

SECTION

PART 1

Preliminary

1. Short title.

2. Interpretation.

3. Objects of Act.

4. Application of Act.

PART 11

The Competition Commission

5. Establishing of Commission.

6. Functions of Commission.

7. General Powers of Commission.

8. Funds of Commission.

9. Power to charge fees.

10. Accounts and audit.

11. Reports.

12. Appointment of Director and other employees.

13. Pensions, gratuities and other retiring benefits.

14. Power of entry and search.

15. Destruction of records.

16. Giving of fake or misleading information to the Commission.

17. Discontinuance of inquiry or investigation.

18. Summons to examine witnesses.

19. Notice to produce documents.

PART 111

Anti-Competitive Agreements and Abuse of Dominant Position

20. Provisions of agreements having effect of restricting, preventing or distorting competition.

21. Agreements containing exclusionary provisions.

22. Action by Commission re anti-competitive agreement or trade practice.

23. Prohibition of abuse of dominant position.

24. Abuse of dominant position.

25. Action in relation to abuse of dominant position.

26. Exception to section 25.

27. Provisions relating to direction under section 25.

PART IV

Resale Price Maintenance

28. Collective agreement by suppliers prohibited.

29. Collective agreement by dealers.

30. Applications of sections 28 and 29 to associations.

31. Minimum resale price maintained by contract.

32. Patented goods.

33. Maintenance of minimum resale prices by other means.

34. Interpretation.

PART V

Authorizations

35. Grant of authorization.

36. Effect of authorization.

37. Revocation of authorization.

38. Register of authorization.

PART VI

Offences

39. Price Fixing.

40. Conspiracy.

41. Bid-rigging.

42. Misleading advertising.

43. Representation as to test and publication of testimonials.

44. Double ticketing.

45. Sale at bargain price.

46. Sale above advertised bargain price.

PART VII

Enforcement Remedies and Appeals

47. Application for enforcement.

48. Powers of High Court.

49. Fixed penalties.

49. (a) Criteria for assessing and imposing penalty.

50. Civil liability.

51. Appeals.

52. Operation of order pending determination of appeal.

PART VIII

The Community Competition Commission

53. References to Community Competition Commission.

54. Powers of Community Competition Commission.

55. Effects of decisions of Community Competition Commission.

PART IX

General

56. Regulations.

57. Power to prohibit disclosure of information, documents and evidence.

58. Confidentiality.

59. Transitional.

FIRST SCHEDULE The competition Commission.

SECOND SCHEDULE Forms.

AN ACT to promote, maintain and encourage competition and to prohibit the prevention, restriction or distortion of competition and the abuse of dominant positions in trade; to promote the welfare and interests of consumers, to establish a Competition Commission and for connected matters.

A.D 2006 Enacted by the Parliament of Guyana

PART 1

Preliminary

Short Title 1. This Act may be cited as the Competition and Fair Trading Act 2006.

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

“acquire” in relation to -

(a) goods, includes obtaining by way of gift, purchase, or exchange, lease, hire or hire purchase;

(b) services, includes to accept the services; and

(c) intellectual property, means to obtain by licence, assignment or government grant;

“advertisement” means any form of communication made to the public or a section thereof for the purpose of promoting the supply of goods or services;

“agreement” includes any agreement, arrangement or understanding, whether oral or in writing or whether or not it is legally enforceable or is intended to be legally enforceable.

“authorised officer” means any officer of the Commission authorised by the Commission to assist in the performance of its functions under this Act;

“business” includes the business of-

(a) manufacturing, producing, transporting, acquiring, supplying, storing and otherwise dealing in goods for gain or other reward; and

(b) acquiring, supplying and otherwise dealing in services for gain or reward;

“Commission” means the Competition Commission established under section 5;

“Community” means the Caribbean Community including the CARICOM Single Market and Economy;

“Community Competition Commission” means the Competition Commission established under Article 171 of the Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy;

“consumer” means any person, organisation, or enterprise for whom goods or services are or are intended to be supplied in the course of a business carried on by the supplier or potential supplier and who does not seek to receive the goods or services in the course of a business carried on by him;

“control” in relation to a company, means the power of a person to secure by means of-

(a) the holding of shares or the possession of voting power in relation to that company; or

(b) ant other power conferred by the articles of incorporation or other document regulating the company,

that the business of the company is conducted in accordance with the wishes of that person;

“document” includes electronic records;

“enterprise” means any person or type of organisation, other than a non-profit organisation, involved in the production of or the trade in goods or the provision of services.

“exclusive dealing” means any practice whereby a supplier of goods-

(a) as a condition of supplying the goods to a person, requires that person to-

(i) deal only or primary in goods supplied by or designated by the supplier or his nominee; or

(ii) refrain from dealing in specific class or kind of goods except as supplied by the supplier or his nominee;

(b) induces a person to meet a condition referred to in paragraph (a) by offering to supply the goods to the person on more favourable terms or conditions if the person agrees to meet that condition;

“goods” means all kinds of property other than immovable property, money, securities or choses in action;

“market restriction” means any practice whereby a supplier of goods, as a condition of supplying the goods to a person, requires that person to supply any goods only in a defined market, or exacts a penalty of any kind from the person if he supplies any goods outside a defined market;

“Member State” means a Member State of the Community excluding an Associate Member of the Community;

“Minister” means the Minister responsible for the Commission;

“price” includes any charge or fee, by whatever name called;

“public utility” includes any person defined as a public utility under section 4 of the Public Utilities Commission Act 1999.

“relevant market” means the supply of goods or services to a geographical area which from the viewpoint of the consumers are substitutable in terms of price or use;

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

“supply” means in relation to–

(a) goods to sell, rent, lease, or otherwise dispose of goods or an interest therein or a right thereto or offer so to dispose of such goods, right or interest;

(b) services, to sell rent or otherwise provide services or offer to provide such services;

and supplier should be construed accordingly;

“tied selling” means any practice whereby a supplier of goods or services-

(a) as a condition of supplying the goods or services (hereinafter referred to as the “tied goods” or “tied services”, respectively) to a person, requires the person to-

(i) acquire any goods or services from the supplier or his nominee; or

(ii) refrain from using or distributing, in conjunction with the tied goods, any other goods that are not of a brand or manufacture designated by the supplier or the nominee; and

(b) induces a person to meet a condition set out in paragraph (a) by offering to supply the tied goods or tied services to the person on more favourable terms or conditions if the person agrees to meet that condition;

“trade” includes any business, industry, profession or occupation relating to the supply or acquisition of goods or services;

(2) For the purpose of this Act-

(a) any two enterprises are to be treated as interconnected enterprises if one of them is the subsidiary of the other or both are the subsidiaries of the same parent enterprise;

(b) a group of interconnected enterprises shall be treated as a single enterprise.

(3) For the purpose of this Act and enterprise is a subsidiary of another enterprise if it is controlled by that other enterprise.

(4) Every reference in this Act to the term “market” is a reference to a market in Guyana for goods and services as well as other goods and services that, as a matter of fact and commercial commonsense, may be substituted for them in terms of price and use.

(5) References in this Act to the lessening of competition shall, unless the context otherwise requires, include references to hindering or preventing competition.

(6) For the purpose of this Act, the effect of competition in that market, shall be determined by reference to all factors that affect competition in that market, including actual or potential competition from goods or services supplied or likely to be supplied by persons not resident or carrying on business in Guyana.

Objects of Act 3. The objects of this Act are to-

(a) promote, maintain and encourage competition and enhance economic efficiency in production, trade and commerce;

(b) prohibit anti-competitive business conduct which prevents, restricts or distorts competition or constitutes the abuse of a dominant position in the market; and

(c) promote the welfare and interest of consumers.

Application of 4. (1) This Act shall not apply to-

Act

(a) Combinations or activities of employees for their own reasonable protection as employees;

(b) Arrangements for collective bargaining on behalf of employers and employees for the purpose of fixing terms and conditions of employment;

(c) Subject to section 24 (20 and (30) the entering into of an agreement in so far as it contains a provision relating to the use, licence or assignment of rights under or existing by virtue of a copyright patent or trade mark;

(d) Any act done to give effect to a provision of an arrangement referred to in paragraph (C);

(e) The entering into or carrying out of such agreement as its authorised by the commission under Part V or the agreement in such business practice as it so authorised;

(f) Activities expressly approved under any treaty or agreement to which Guyana is a party;

(g) Activities of professional associations designed to develop or enforce professional standards of competence reasonably necessary for the protection of the public;

(h) Such other business or activities as the Minister, with the agreement of the Commission, may declare by Order.

No. 10 of 1999 (2) This Act applies to public utilities, but before the Commission

exercises its functions in relation to such activities it shall consult with the

Public Utilities Commission established under the Public Utilities Commission

Act 19999;

Provided that-

(a) the Commission shall strictly confine itself to discharging its functions in relation to a matter falling within the provisions of this Act;

(b) the Public Utilities Commission shall strictly confine itself to discharging its functions specified under the Public Utilities Commission Act 1991, and neither shall arrogate to itself and deal with matters that are within the domain and contemplation of the other;

Provided further, and notwithstanding anything in this Act, that no function that is essentially a function of, or which has over the time, been discharged by the Public Utilities Commission shall be discharged by the Commission.

(3) In this section “consult” shall be constructed in accordance with the meaning of consultation as defied in Article 232 of the Constitution.

PART II

The Competition Commission

Establishment of 5.(1) There is hereby established for the purposes of this Act, a body

Commission corporate to be known as the Competition Commission.

First Schedule (2) The provisions of the First Schedule shall have effect as to the constitution of the Commission and otherwise in relation thereto.

Functions of 6(1) The Commission shall discharge the following functions –

Commission (a) keep under review commercial activities with a view to ascertaining

practices which may adversely affect the economic interests of consumers;

(c) order, on its own initiative or at the request of any person, such investigations in relation to the conduct of business as will enable it to determine whether any enterprise is engaging in business practices in contravention of this Act;

(d) Conduct such inquiries as it may consider necessary or desirable in connection with any matter falling within the provisions of this Act;

(e) Advise the Minister on such matters relating to the operation of this Act as it thinks fit or as may be requested by the Minister;

(f) Take such action as it considers necessary with respect to the abuse of a dominant position by any enterprise;

(g) Eliminate anti-competitive agreements;

(h) Carry out such other functions as are required to give effect to this Act.

(2) The Commission shall –

(a) make available –

(i) to persons engaged in business, general information with

respect to their rights and obligations under this Act;

(ii) for the guidance of consumers, general information with

respect to the rights and obligations of persons under this Act

affecting the interests of consumers;

(b) undertake studies and publish reports and information regarding

matters affecting the interests of consumers;

(c) Co-operate with and assist any association or body of persons in

developing and promoting the observance of standards of conduct

for the purpose of ensuring compliance with the provisions of this

Act.

(3) The Commission shall co-operate with –

(a) the Community Competition Commission for the purpose of enforcing

compliance with the provisions of this Act; and

(b) competition authorities of other Member States for the purpose of

detecting and preventing anti-competitive conduct and exchanging

information relating to such conduct.

(4) The Commission shall order investigations into any allegations of anti-competitive conduct referred to it by the Community Competition Commission or by a competition authority of another Member State and shall submit to the Community Competition Commission or that other competition authority a written report of its findings.

General Powers 7. (1) Except as otherwise provided in this Act, for the purpose of carrying

of Commission. out its functions under this Act, the Commission shall have power to –

(a) declare certain business practices to be abuses of dominant

position;

(b) prohibit the withholding of supplies or any threat thereof;

(c) order the termination of an agreement;

(d) prohibit the making or carrying out of an agreement;

(e) prohibit the attachment of extraneous conditions to any

transactions;

(f) prohibit discrimination or preferences in prices or other related

matters;

(g) Require the publication of transparent price lists;

(h) order enterprises to cease and desist from any form or conduct

that has or is likely to have as its object or effect the lessening

of competition

(2) The Commission shall obtain such information as it considers

necessary to assist it in its inquiry and where it considers appropriate, shall

examine and obtain verification of documents submitted to it.

(3) The Commission shall have power to –

(a) summon and examine witnesses;

(b) call for and examine documents;

(c) administer oaths;

(d) require that any document submitted to the Commission be

verified by affidavit;

(e) adjourn any inquiry from time to time;

(f) require the furnishing of such returns or information as it may

require by such persons as it may specify by notice.

(4) The Commission may hear orally any person who, in its opinion, will

be affected by an investigation or inquiry under this Act.

(5) The Commission may require a person engaged in business or trade or such other person as the Commission considers appropriate, to state such facts concerning goods manufactured, produced or supplied by that person or services so supplied, as the Commission may think necessary to determine whether the conduct of the business is relation to the goods and services constitutes an anti-competitive practice.

(6) If the information specified in subsection (2) is not furnished to the Commission’s satisfaction, it may make a finding on the basis of information available before it.

(7) A summons to attend, give evidence or produce documents before the Commission shall be served on the person required so to attend and give evidence or to produce documents and shall be issued the hand of the Director or any member of the Commission.

(8) All persons summoned to attend and give evidence or produce documents at any sitting of the Commission shall be bound to obey the summons served upon them.

(9) Hearings of the Commission shall take place in public but the Commission may, whenever the circumstances so warrant, conduct a hearing in camera.

(10) Any person who –

(a) without sufficient cause, fails or refuses –

(i) to attend or give evidence before the Commission in obedience to a summons issued under this Act;

(ii) to produce any document which he is required by such summons to produce; or

(iii) refuses to take an oath or make an affirmation as a witness or to answer any question put to him;

(b) being a witness leaves a sitting of the Commission without the Commission’s permission;

(c) willfully –

(i) insults any member or officer of the Commission;

(ii) obstructs or interrupts the proceedings of the Commission; or

(iii) refuses to comply with a requirement of the Commission under this Act;

(d) makes a complaint to the Commission that a business enterprise is acting in contravention of this Act, which the Commission finds to be a vexatious, frivolous or malicious complaint, commits an offence and is liable on summary conviction to a fine of one million dollars and to imprisonment for three months.

Funds of 8. The funds of the Commission shall consist of –

Commission (a) such sums as may be appropriated by the National

Assembly for the purposes of this Act;

(b) fees collected pursuant to section 9;

(c) fixed penalties paid to the Commission pursuant to section 49;

(d) all monies paid to the Commission by way of grants or donations;

(e) all monies made available to or borrowed by the Commission under this Act for the purpose of the Commission with the approval of the Minister; and

(f) any other moneys which may in any manner become payable to or vested in the Commission in respect of any matter incidental to its functions.

Power to 9. The Commission may charge fees for any services rendered by it and

charge fees. such fees shall be used by the Commission to defray its expenses including the provision of advisory opinions.

Accounts and 10.(1) The accounts of the Commission shall be audited annually by the

audits. Auditor-General or by any auditor approved by him for that purpose.

(2) A statement of accounts so audited shall form part of the annual

report referred to in section 11(1).

(3) The Commission shall –

(a) within four months after the end of the financial year, submit to the Minister a statement of accounts audited in accordance with subsection (1); and

(b) not later than four months prior to the beginning of the next financial year, submit to the Minister for approval, estimates of revenue and expenditure for the financial year next following.

Reports. 11(1) The Commission shall, not later than four months after the end of each financial year, cause to be made and transmitted to the Minister, a report dealing generally with the Commission’s activities during the preceding financial year.

(2) The Commission may from time to time furnish to the Minister a report relating to any particular matter or matters investigated which, in its opinion, require the Minister’s special attention.

(3) The Minister shall cause a copy of the report submitted under

subsection (1) to be laid before the National Assembly, not later than three months after receipt from the Commission.

Appointment of 12. (1) The Commission shall appoint a Director, who shall hold office for

Director and a period of three years and may re-appointed for a period not exceeding

other employees. three years at a time.

(2) The Commission may, after consultation with the Minister,

terminate the employment of the Director if that individual –

(a) becomes permanently unable to perform his functions by reasons of a mental or physical infirmity;

(b) fails to satisfactorily carry out his responsibilities under this Act; or

(c) engages in such activities as are reasonably considered to be prejudicial to the Commission’s interest.

(3) The Director shall be responsible for the day-to-day management of the Commission.

(4) Subject to subsection (5), the Director shall receive such emoluments and be subject to such terms and conditions of service as may from time to time be determined by the Commission.

(5) The emoluments and terms and conditions of service of the Director, other than allowances that are not taken into account in computing pensions, shall not be altered to his disadvantage during the period of his appointment or reappointment, as the case may be.

(6) The Director may, with the approval of the Commission, appoint at such remuneration and on such terms and conditions as he thinks fit, such other officers and employees, including investigators, as are necessary for the proper carrying out of the provisions of this Act.

(7) The emoluments payable to the Director and staff of the Commission by virtue of this Act shall be charged on and paid out of the funds of the Commission.

Pensions, 13.(1) The Commission may enter into arrangements respecting schemes,

gratuities and whether by way of insurance policies or not for medical benefits, pensions, gratuities

other retiring and other retiring or disability or death benefits relating to the Director, officers and

benefits. other employees of the Commission.

(2) Arrangements referred to in subsection (1) may include provisions

for the grant of benefits to the dependants and the legal personal representatives of the Director, officers and other employees.

Power of entry 14. (1) The Commission may, for the purpose of ascertaining whether any

and search. person has engaged, is engaging or is likely to engage in conduct constituting or likely to constitute a contravention of this Act, order an investigation to be conducted by its investigators against the person complained of.

(2) For the purpose of conducting an investigation ordered by the

Commission under subsection (1), an investigator may –

(a) enter and search any premises; and

(b) inspect and remove for the purpose of making copies, any documents or extracts therefrom in the possession or under the control of any person.

(3) An investigator shall not exercise the powers conferred by subsection (2) without a warrant issued under subsection (4).

(4) Where a Magistrate is satisfied on information on oath that there is

reasonable ground for believing that any person complained against has engaged or is engaging in conduct constituting or likely to constitute a contravention of this Act, the Magistrate may issue a warrant permitting an investigator to exercise the powers conferred by subsection (2) in relation to any premises specified in the warrant but the Commission may release the document before, having examined and noted its contents.

(5) A warrant shall not authorize the detention of a document for a period exceeding ninety days.

(6) An investigator shall –

(a) on entering any premises pursuant to a warrant, produce

evidence of his authority to so enter and of his identity;

(b) upon completing the search authorized by the warrant, leave a receipt listing documents or extract therefrom that are removed for the purposes of this section.

(7) The occupier or person in charge of any premises entered pursuant to this section shall provide the investigator with all reasonable facilities and assistance for the effective exercise of his functions under this section.

(8) Any person who, in any manner, impedes, prevents, or obstructs any investigation or inquiry by the Commission under this Act is guilty of an offence and liable on summary conviction to a fine of ten million dollars and to imprisonment for six months.

Destruction of 15. A person who –

records. (a) refuses to produce any document or to supply any information

when required to do so by the Commission under this Act; or

(b) intentionally or recklessly alters or destroys any record likely to be require for any investigation that has commenced under this Act, is guilty of an offence and is liable on summary conviction to a fine of ten million dollars and to imprisonment for six months.

Giving of false 16. Any person who gives to the Commission or an authorized officer any information

or misleading which he knows to be false or misleading is guilty of an offence and liable

information to on summary conviction to a fine of one million dollars and to imprisonment for the Commission. three months.

Discontinuance 17. (1) At any stage of an investigation, the investigator may recommend

of inquiry or to the Commission that the investigation be discontinued, giving reasons for the

investigation. recommendation.

(2) The Commission may if satisfied, on the basis of the recommendations of

the investigator, order the discontinuance of the investigation.

(A) Where the Commission is dissatisfied with the recommendations of

the investigator, the Commission may decide to investigate further.

(3) Where, at any stage of an inquiry under this Act, the Commission is of the

opinion that the matter, subject to inquiry, does not justify further, the Commission may discontinue the inquiry.

(4) Where the Commission discontinues an investigation or inquiry and shall

hand over all documents to the person from whom they were obtained it shall within fourteen days thereafter, make a report in writing to the Minister and notify the parties concerned in the investigation or inquiry, stating the information obtained and the reason for discontinuing the investigation or inquiry.

Summons to 18. Where the presence of a witness is required for the purposes of an

examine investigation, the Commission shall serve on that witness a summons in the

witnesses. form set out as Form A in the Second Schedule.

Form A

Second Schedule.

Notice to 19. (1) Where the Commission requires a document to be produced for

produce the purposes of an investigation, the Commission shall serve on the relevant person, a documents. notice in the form set out as Form B in the Second Schedule.

Form B (2) The person notified pursuant to paragraph (1) shall produce the

Second Schedule. document specified in the notice within twenty days of the date of the service thereof.

PART III

Anti-Competitive Agreements, Abuse of Dominant Position

20. (1) Subject to the provisions of this section –

(a) all agreements between enterprises; and

(b) Concerted practices of enterprises or decisions of associations of enterprises

which have or are likely to have the effect of preventing, restricting or distorting competition in a market are prohibited and void.

(2) Without prejudice to the generality of subsection (l), agreements referred to in that subsection include agreements containing provisions that –

(a) directly or indirectly fix purchase or selling prices or determine any other trading conditions;

(b) limit or control product, markets, technical development or investment;

(c) provide for the artificial dividing up of markets or sources of supply;

(d) affect tenders to be submitted in response to a request for bids;

(e) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(f) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

(3) Subsection (l) shall not apply to any agreement or category of agreements, the entry

into which has been authorized under Part V or which the Commission is satisfied –

(a) contributes to the improvement of production or distribution of goods or services or the promotion of technical or economic progress, while allowing consumers a fair share of the resulting benefit;

(b) imposes on the enterprises concerned only such restrictions as are indispensable to the attainment of the objectives mentioned in paragraph (a); or

(c) does not afford such enterprises the possibility of eliminating competition in respect of a substantial part of the goods or services concerned.

(4) No person shall give effect to any agreements of enterprises or concerted practices or decisions of associations of enterprises that have the object or effect mentioned in subsection (l).

21. (1) No person shall give effect to an exclusionary provision in an agreement.

(2) For the purposes of this Act, a provision of an agreement is an exclusionary provision if –

(a) the agreement is entered into or arrived at between persons of whom any

two or more are in competition with each other; and

(b) the effect of the provision is to prevent, restrict or limit the supply of goods or

services to, or the acquisition of goods or services from, any particular person

or class of persons either generally or in particular circumstances or

conditions, by all or any of the parties to the agreement, or, if a party is an

enterprise, by an interconnected enterprise.

(3) For the purpose of subsection (2), a person is in competition with another person if that person or any interconnected enterprise –

(a) is, or is likely to be; or

(b) but for the relevant provision, would be or would be likely to be, in

competition with the other person or with an interconnected enterprise, in

relation to the supply or acquisition of all or any of the goods or services to

which that relevant provision relates.

22. (1) Subject to this section, where the Commission determines that any agreement or trade practice referred to in sections 20 and 21 is anti-competitive, it shall serve an order on the parties stating the reasons for the determination and requiring them –

(a) to cease the practice; or

(b) to terminate the agreement.

(2) A person who has suffered loss as a result of any anti-competitive agreement or trade practice may apply to the Commission for compensation and the Commission may, if it is satisfied that the circumstances of the case so warrant, order the parties whose agreement or trade practice is anti-competitive to pay to the person such compensation as the Commission shall determine.

(3) An enterprise that fails to terminate the anti-competitive agreement or practice within the period agreed with the Commission commits an offence and shall be liable on summary conviction to a fine of fifty million dollars and to imprisonment for one year.

23. (1) Subject to section 24 (2), any conduct on the part of one or more enterprises which amounts to an abuse of a dominant position in a market is prohibited.

(2) For purposes of this Act, an enterprise holds a dominant position in a market if, by itself or together with an interconnected enterprise, it occupies such a position of economic strength as will enable it to operate in the market without effective constraints from its competitors or potential competitors.

24. (1) An enterprise abuses a dominant position if it impedes the maintenance or development of effective competition in a market and in particular, but without prejudice to the generality of the foregoing, if it –

(a) restricts the entry of any enterprise into that or any other market;

(b) prevents or deters any enterprise from engaging in competitive conduct in that or any other market;

(c) eliminates or removes any enterprise from that or any other market;

(d) directly or indirectly imposes unfair purchase or selling prices or other anti-competitive practices;

(e) limits production of products to the prejudice of consumers;

(f) makes the conclusion of agreements subject to acceptance by other parties of supplementary obligations which by their nature, or according to commercial usage, have no connection with the subject;

(g) engages in any business conduct that results in the exploitation or its consumers or suppliers including but not limited to exclusive dealing, market restriction or tied selling.

(2) An enterprise shall not be treated as abusing a dominant position –

(a) if it is shown that its behavior was exclusively directed to improving the production or distribution of goods or to promoting technical or economic progress and consumers were allowed a fair share of the resulting benefit;

(b) subject to subsection (3), by reason only that the enterprise enforces or seeks to enforce any right under or existing by virtue of any copyright, patent, registered design or trade mark or other property right; or

(c) if the effect or likely effect of its behavior in the market is the result of its superior competitive performance.

(3) An enterprise may be treated as abusing its dominant position in enforcing or seeking to enforce the rights referred to in subsection (2) (b), if the Commission is satisfied that the exercise of those rights –

(a) has the effect of unreasonably lessening competition in a market; and

(b) impedes the transfer and dissemination of technology.

25. (1) Where the Commission has reason to believe that an enterprise that has a dominant position in a market has abused or is abusing that position, the Commission may, subject to section 26, order an investigation into the matter.

(2) Following an investigation, if the Commission finds that an enterprise has abused or is abusing a competition substantially in a market, the Commission shall prepare a report indicating the practices that constitute the abuse and shall –

(a) notify the enterprise of its finding accompanied by a copy of the report; and

(b) direct the enterprise to cease the abusive practice immediately, or within a time period agreed with the Commission of not more than six months.

(3) An enterprise that fails to cease the abusive practice referred to in subsection (2) within the period agreed with the Commission commits an offence and shall be liable on summary conviction to a fine of fifty million dollars and to imprisonment for one year.

(4) Where the Commission finds that the abusive practice constitutes tied selling, the commission shall prohibit the enterprise concerned from continuing that practice immediately.

(5) Subject to subsection (7), the Commission shall act in accordance with subsection (6) if it finds that exclusive dealing or market restriction, because it is engaged in by a major supplier of goods or services in a market or because it is widespread in a market, is likely to –

(a) impede entry into or expansion of an enterprise in the market;

(b) impede the introduction of goods into or expansion of sales of goods or services in the market; or

(c) have any other exclusionary effect in the market,

with the result that competition is or is likely to be lessened substantially.

(6) The Commission may prohibit the supplier referred to in subsection (5) from continuing to engage in market restriction or exclusive dealing and order that supplier to take such other action as, in the Commission’s opinion, is necessary to restore or stimulate competition in relation to the goods or services.

(7) The Commission shall not take action under this section where, in its opinion, exclusive dealing or market restriction is or will be engaged in only for a reasonable period of time to facilitate entry of new goods or a new supplier of goods into a market.

(8) This section shall not apply in respect of exclusive dealing or market restriction between or among interconnected enterprises.

26. (1) The Commission shall not order an investigation in respect of an enterprise under section 25 unless it is satisfied that the enterprise controls more than forty percent of the market.

(2) For the purpose of subsection (1), an enterprise controls more than forty percent of a market if –

(a) where the market relates to the supply of goods or services of any description, more than forty percent of all the goods or services of that description which are supplied in Guyana are supplied by or to that enterprise or a group of interconnected enterprises of which the enterprise is a part;

(b) where the market relates to the export of goods of any description from Guyana, more than forty percent of all the goods of that description which are produced in Guyana are produced by that enterprise or a group of interconnected enterprises of which the enterprise is a part.

(3) In the cases referred to in subsection (2) (b), a dominant position shall be taken to exist both in relation to export of goods of that description from Guyana generally and to export of goods of that description from Guyana to each country taken separately.

27. (1) Where, within thirty days of the receipt of the direction under section 25 (2), the enterprise concerned submits to the Commission the measures it would take and the time table for giving effect to the measures to cease the abusive practice, and the Commission is satisfied as to those measures, it shall suspend the operation of the direction and notify the enterprise in writing thereof.

(2) Where an enterprise referred to in subsection (1) fails or neglects to give effect to the measures mentioned in that subsection within a period of six months after the date on which those measures were accepted by the Commission, the direction issued under section 25 (2) shall have effect at the end of that period.

PART IV

Resale Price Maintenance

28. (1) It is unlawful for any two or more enterprises which are suppliers of goods or services to enter into or carry out any agreement whereby they undertake to –

(a) withhold supplies of goods or services from dealers (whether parties to the agreement or not) who resell or have resold goods or services in breach of any condition as to the price at which those goods or services may be resold;

(b) refuse to supply goods or services to such dealers except on terms and conditions which are less favourable than those applicable in the case of other dealers carrying on business in similar circumstances;

(c) supply goods or services only to persons who undertake or have undertaken to do any of the acts described in paragraph (a) or (b).

(2) It is unlawful for any two or more enterprises referred to in subsection (1) to enter into or carry out any agreement authorizing –

(a) the recovery of penalties (however described) by or on behalf of the parties to the agreement from dealers who resell or have resold goods or services in breach of any condition described in subsection (1) (a); or

(b) the conduct of any proceedings in connection therewith.

29. (1) It is unlawful for any two or more enterprises which are dealers in any goods or suppliers of services, to enter into or carry out any agreement whereby they undertake to –

(a) withhold orders for supplies of goods or services from suppliers (whether parties to the agreement or not) who –

(i) supply or have supplied goods or services without imposing such a condition as is described in section 3 (2) (a); or

(ii) refrain or have refrained from taking steps to ensure compliance with such conditions in respect of goods or services supplied by them; or

(b) discriminate in their handling of goods or services against goods or services supplied by those suppliers.

(2) It is unlawful for any two or more enterprises referred to in subsection (1) to enter into or carry out an agreement authorizing the recovery of penalties (however described) by or on behalf of the parties to the agreement from the suppliers referred to in that subsection or the conduct of any proceedings in connection therewith.

30. Sections 28 and 29 apply in relation to an association whose members consist of or include enterprises which are suppliers or dealers in any goods or services or representatives of such enterprises.

31. (1) Any term or condition of an agreement for the sale of any goods or services by a supplier to a dealer is void to the extent that it purports to establish or provide for the establishment of minimum prices to be charged on the resale of the goods or services.

(2) Subject to subsections (3) and (4), it is unlawful for a supplier of goods or services or his agent to –

(a) include in an agreement for the sale of goods or services, a term or condition which is void by virtue of this section;

(b) require, as a condition of supplying goods or services to a dealer, the inclusion in the agreement of any term or condition or the giving of any undertaking to the like effect;

(c) notify to dealers, or otherwise publish on or in relation to any goods or services, a price stated or calculated to be understood as the minimum price which may be charged on the resale of the goods or services.

(3) Subsection (2) (a) does not affect the enforceability of an agreement except in respect of the term or condition which is void by virtue of this section.

(4) Nothing in subsection (2) (c) shall be construed as precluding a supplier (or an association of persons acting on a supplier’s behalf) from notifying to dealers or otherwise publishing prices recommended as appropriate for the resale of goods or services supplied or to be supplied by the supplier.

Patented goods. 32. (1) Section 31 applies to patented goods (including goods made by a patented

process) as it applies to other goods

(2) Notice of any term or condition which is void by virtue of this Part, or which

would be so void if included in an agreement relating to the sale of any such goods, is of no effect for the purpose of limiting the right of a dealer to dispose of those goods without infringement of the patent.

(3) Nothing in section 31 and this section affects the validity, as between the parties to an agreement and their successors, of any term or condition of –

(a) a licence granted by the proprietor of a patent or a licensee under any such license; or

(b) any assignment of a patent,

so far as it regulates the price at which goods produced or processed by the license or assignee may be sold by him.

Maintenance of 33. (1) It is unlawful for a supplier to withhold supplies of any goods or services from a

Minimum dealer seeking to obtain them for resale on the ground that the dealer –

resale prices by (a) has sold goods or services obtained either directly or indirectly from

other means. that supplier, at a price below the resale prices or has supplied such goods or services either directly or indirectly to a third party who had done so; or

(b) is likely, if the goods or services are supplied by him, to sell them at a price below that price, or supply them either directly or indirectly to a third party who would be likely to do so.

(2) In this section “resale price”, in relation to a sale of any description, means any price –

(a) notified to the dealer or otherwise published by or on behalf of a supplier of the goods or services in question (whether lawfully or not) as the price or minimum price which is to be charged on or is recommended as appropriate for a sale of that description; or

(b) fixed or purporting to be fixed for that purpose by an agreement between the dealer and any such supplier.

(3) Where under this section it would be unlawful for a supplier to withhold supplies of goods or services, it is also unlawful for him to cause or procure any other supplier to do so.

Interpretation. 34. (1) For the purposes of this Part, a supplier of goods or services shall be treated as withholding suppliers from a dealer if –

(a) he refuses or fails to supply those good or services to the order of the dealer;

(b) he refuses to supply those goods or services to that dealer except at prices, or on terms or conditions as to credit, discount or other matters which are significantly less favourable than those at or on which he normally supplies those goods or services to other dealers carrying on business in similar circumstances; or

(c) although he enters into an agreement to supply goods or services to the dealer, he treats him in a manner significantly less favourable than that in which he normally treats other such dealers in respect of times or methods of delivery or other matters arising in the execution of the agreement.

(2) A supplier shall not be treated as withholding supplies of goods or services on any ground mentioned in section 33 (1) if, in addition to that ground, he has other grounds which, standing alone, would have led him to withhold those supplies.

(3) Subject to subsection (5), if, in proceedings brought against a supplier of goods or services in respect of a contravention of section 33 (1), the matters specified in subsection (4) are proved, it shall be presumed, unless the contrary is proved, that the supplies were withheld on the ground that the dealer had acted or was likely to act as described in section 33 (1).

(4) The matters referred to in subsection (3) are as follows –

(a) supplies of goods or services were withheld from a dealer;

(b) during a period ending immediately before the supplies were so withheld, the supplier was doing business with the dealer or was supplying goods or services of the same description to other dealers carrying on business in similar circumstances; and

(c) the dealer, to the knowledge of the supplier, had within the preceding six months acted as described in section 33 (1) (a) or had indicated his intention to act as described in section 33 (1) (b) in relation to the goods or services in question.

(5) Subsections (3) and (4) do not apply where the proof that supplies were withheld consists only of evidence of requirements imposed by the supplier in respect of the time at which or the form in which payment was to be made for goods or services supplied or to be supplied.

Part V

Authorisations

Grant of 35. (1) Subject to subsection (2), any person who proposes to enter into or carry out an

authorization. agreement or to engage in a business practice which, in that person’s opinion, is an agreement or practice affected or prohibited by this Act, may apply to the Commission for an authorization to do so.

(2) The Commission may, in relation to an application under subsection (1) –

(a) notwithstanding any other provision of this Act, if it is satisfied that the agreement or practice, as the case may be, is likely to promote the public benefit, grant an authorization subject to such terms and conditions as it thinks fit and for such time as the Commission may specify; or

(b) refuse to grant an authorization and in that case, shall inform the applicant in writing of the reasons for refusal.

Effect of 36. While an authorization granted under section 35 remains in force, nothing in this Act

authorization. shall prevent the person to whom it is granted from giving effect to the agreement or the provision thereof or from engaging in the practice to which the authorization relates.

Revocation of 37. (1) Subject to subsection (2), the Commission may revoke or amend an authorization

authorization. if it is satisfied that –

(a) the authorization was granted on information that was false or misleading; or

(b) there has been a breach of any terms or conditions subject to which the authorization was granted.

(2) The Commission shall, before revoking or amending an authorization, serve on

the relevant applicant, a notice in writing specifying the default and inform him of his right to apply to the Commission to be heard on the matter within such time as may be specified in the notice.

Register of 38. (1) The Commission shall keep, in such form as it may determine, a register of

authorization. authorizations granted under this Part.

(2) The register shall be kept at the office of the Commission and shall be available

for inspection by members of the public at all reasonable times.

Part VI

Offences

Price fixing. 39. (1) An enterprise that is engaged in the business of producing or supplying goods or services shall not, directly or indirectly –

(a) by agreement, threat or promise or any like means, attempt to influence upward or discourage the reduction of, the price at which any other enterprise supplies or offers to supply or advertises goods or services;

(b) refuse to supply goods or services to or otherwise discriminate against any other enterprise enagaged in business;

(c) refuse to supply goods or services to or otherwise discriminate against any other person engaged in business because of the low pricing policy of that other person.

(2) Subsection (1) (a) does not apply where the enterprise attempting to influence the conduct of another enterprise and that other enterprise are interconnected enterprises or, as the case may be, principal and agent.

(3) For the purposes of this section, the publication by a supplier of goods or services other than a retailer of an advertisement that mentions a resale price for the goods or service is an attempt to influence upward the selling price of any enterprise into the hands of which goods or services come for resale unless the price is so expressed as to make it clear to any person who becomes aware of the advertisement that the good or services may be sold at a lower price, or is clearly marked as being a suggested retail price.

Conspiracy. 40. (1) No enterprise shall conspire, combine, agree or arrange with another person to –

(a) limit unduly the facilities for transporting, producing, manufacturing, storing or dealing in any goods or supplying any service;

(b) prevent, limit or lessen unduly, the manufacture or production of any goods or the provision of services or to enhance unreasonably the price thereof;

(c) lessen unduly, competition in the production, manufacture, purchase, barter, sale, supply, rental or transportation of any goods or services or in the price of insurance on persons or property;

(d) otherwise unduly restrain or injure competition.

(2) Nothing in subsection (1) applies to a conspiracy, combination, agreement or

arrangement which relates only to a service and to standards of competence and integrity that are reasonably necessary for the protection of the public –

(a) in the practice of a trade or profession relating to the service; or

(b) in the collection and dissemination of information relating to the service.

Bid-rigging. 41. (1) Subject to subsection (2), it is unlawful for two or more enterprises to enter into an agreement whereby –

(a) one or more of them agree to undertake not to submit a bid in response to a call or request for bids or tenders; or

(b) as bidders or tenders they submit, in response to a call or request, bids or tenders that are arrived at by agreement between or among themselves.

(2) This section shall not apply in respect of an agreement that is entered into or a

submission that is arrived at only by enterprises each of which is, in respect of every one of the others, an affiliate.

Misleading 42. (1) An enterprise shall not, in pursuance of trade and for the purpose of promoting,

advertising. directly or indirectly, the supply or use of goods or services or any business interest, by any means –

(a) make representation to the public –

(i) that is false or misleading or likely to be misleading in a material respect;

(ii) in the form of a statement, warranty or guarantee of performance, efficiacy or length of life of goods or services that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation.;

(iii) in a form that purports to be a warranty or guarantee of any goods or services or a promise to replace, maintain or repair an article or any part thereof or to repeat or continue service until it has achieved a specified result, if the form of purported warranty, guarantee or promise is materially misleading or if there is no reasonable prospect that it will be carried out;

(b) falsely represent to the public in the form of a statement, warranty or guarantee that services are of a particular kind, standard, quality or quantity, or are supplied by any particular person or by any person of a particular trade, qualification or skill;

(c) make a materially misleading representation to the public concerning the price at which any goods or services or like goods or services have been, are or will be ordinarily supplied.

(2) For the purposes of this section and section 43, the following types of representation shall be deemed to be made to the public by and only by the enterprise who caused it to be experessed, made or contained, that is to say, a representation that is –

(a) expressed on an article offered or displayed for sale;

(b) expressed on anything attached to, inserted in or accompanying an article offered or displayed for sale, its wrapper or container, or anything on which the article is mounted for display or sale;

(c) expressed on a display in the place where the article is sold;

(d) made in the course of selling the article to the ultimate consumer;

(e) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner made available to a member of the public.

(3) Where the enterprise referred to in subsection (2) is outside of Guyana, the representation shall be deemed to be made –

(a) in a case described in subsection (2) (a), (b) or (e), by the enterprise that imported the article; and

(b) in a case described in subsection (2) (c), by the enterprise that imported the display into Guyana,

(4) Subject to subsection (3) and this section, every enterprise that, for the purpose of promoting, directly or indirectly, the supply or use of any goods and services or any business interest, supplies to a wholesaler, retailer or other distributor of goods or services, any material or thing that contains a representation of a kind referred to in subsection (1) shall be deemed to have made that representation to the public.

Representation 43. An enterprise shall not, for the purpose of promoting, directly or indirectly, the

as to test and supply or use of any goods or services or any business interest, make a representation

publication of to the public that a test as to the performance, efficacy or length of life the goods has testimonials. been made by any enterprise or publish a testimonial with respect to the goods or services, unless it can establish that

(a) the representation or testimonial was previously made or published by the enterprise by which the test was made or the testimonial was given, as the case may be; or

(b) before the representation or testimonial was made or published, it was approved and permission to make or publish it was given in writing by the enterprise which made the test or gave the testimonial, as the case may be, and it accords with the representation or testimonial previously made, published or approved.

Double 44. An enterprise shall not supply any article at a price that exceeds the lowest of two or

ticketing. more prices clearly expressed by him or on his behalf, in respect of the article in the quantity in which it is so supplied at the time at which it is so supplied –

(a) on the article, its wrapper or container;

(b) on anything attached to, inserted in or accompanying the article, its wrapper or container or anything on which the article is mounted for display or sale; or

(c) on a display or advertisement at the place at which the article is purchased.

Sale at bargain 45. (1) For the purpose of this section, “bargain price” means a price –

price

(a) that is represented in an advertisement to be a bargain price by reference to an ordinary price or otherwise4;

(b) so represented in an advertisement, that a person who reads, hears or sees the advertisement would reasonably understand to be a bargain price by reason of the prices at which the goods or services advertised or like articles are ordinarily sold.

(2) An enterprise shall not advertise at a bargain price, goods or services which it does not supply in reasonable quantities having regard to the nature of the market in which it carries on business, the nature and size of the business carried on by it and the nature of the advertisement.

(3) Subsection (2) does not apply where the enterprise that is advertising proves that

(a) it took reasonable steps to obtain in adequate time, a quantity of the

Article that would have been reasonable having regard to the nature of

The advertisement, but was unable to obtain such quantity by reason

Of events beyond its control that it could not reasonably have

anticipated.

(b) it obtained a quantity of the article that was reasonable having regard

to the nature of the advertisement, but was unable to meet the demand

therefor because that demand surpassed its reasonable expectations;

or

(c) after it became unable to supply the article in accordance with the

Advertisement, it undertook to supply the same article or equivalent

Article of equal or better quality at the bargain price and within a

Reasonable time to all persons who requested the article and who were

Not supplied therewith during the time when the bargain price applied

And that it fulfilled the undertaking; and

(d) it took all reasonable steps to remove all the advertisements stating

That the good or service was available at a bargain price once it became

Aware that it would not be able to supply that good or service in

Reasonable quantities at that price.

Sales above 46. (1) An enterprise that advertises goods or services for sale or rent in a market shall

advertised price not during the period and in the market to which the advertisement relates, supply

goods or services at the price that is higher than that advertised.

(2) This section shall not apply in respect of –

(a) an advertisement that appears in a catalogue or other publication in

Which it is prominently stated that the prices contained therein are

Subject to error if the enterprise establishes that the price is in error;

(b) an advertisement that is immediately followed by another advertisement correcting the price mentioned in the first advertisement.

(3) For the purposes of this section, the market to which an advertisement relates

shall be deemed to be the market to which it could reasonably be expected to reach, unless the advertisement defines market specifically by reference to a geographical area, store, sale by catalogue or otherwise.

PART VII

Enforcement, Remedies and Appeals

Application for 47. Subject to the provision of this Act, if the High Court is satisfied on an

Enforcement application by the Commission that any enterprise has contravened any of the

Provisions of this Act, the High Court may exercise any of the powers referred to in

Section 48.

Powers of High 48. (1) Pursuant to section 47 the High Court may –

Court (a) order the enterprise concerned pay to the State such pecuniary

penalty not exceeding one million dollars in the case of an individual

and ten million dollars in the case of a person other than an individual;

(b) grant an injunction restraining the enterprise from engaging in conduct

referred to in section 47, in respect of each contravention or failure

referred to in that section.

(2) In exercising its powers under this section, the High Court shall have regard to –

(a) the nature and extent of the default;

(b) the nature and extent of any loss suffered by any person as a result of the default;

(c) the circumstances of the default;

(d) any previous determination against the person.

(3) The standard of proof in proceedings under this section and section 47 shall be

the standard of proof applicable in civil proceedings.

Fixed penalties 49. (1) The Commission may, with the approval of the Director of Public Prosecutions give to any person who has committed an offence specified in this Act, a notice in the prescribed form offering that person immunity from prosecution for that offence on payment of a fixed penalty to the Commission.

(2) No person to whom a notice has been given under subsection (1) shall be prosecuted for the offence if the fixed penalty is paid in accordance with subsection (1) and by the date specified in that notice.

(3) Where a person is given a notice under this section, proceedings shall not be taken against that person for the offence until the expiration fifteen days following the date of the notice or such longer period as may be specified in the notice.

(4) Payment of a fixed penalty under this section shall be made by the date specified in the notice, and the Commission shall issue a certificate in that behalf, which shall be conclusive evidence of the facts stated therein.

(5) A notice under subsection (1) shall –

(a) specify the offence alleged;

(b) give such particulars of the offence as are necessary for giving reasonable information of the allegation;

(c) state-

(i) the period during which proceedings will not be taken in accordance with subsection (3);

(ii) the amount of the fixed penalty, the authorized officer to whom and the address at which the fixed penalty shall be paid.

(6) If any proceedings are brought against any person for an offence under this Act, or any regulation or order made thereunder, it shall be a defence if the person proves that the offence with which he is charged has been compounded under this section.

(7) If the Commission withdraws a notice issued under subsection (1), after payment of the fixed penalty, the amount shall be refunded and all liability discharged.

(8) The Commission may appoint authorized officers for the purposes of this section.

Criteria for assessing and 49. A. Notwithstanding anything in this Act, the Court in the imposing

Imposing penalty a penalty shall take into consideration whether the defendant’s business is large, medium or small and issue a penalty accordingly.

50. (1) Except as otherwise provided in this Act, every enterprise which engages in conduct which constitutes –

(a) a contravention of any of the obligations or prohibitions imposed in Parts III, IV, or VI;

(b) aiding, abetting, counseling or procuring the contravention of any such provision;

(c) inducing by threats, promises or otherwise, the contravention of any such provision;

(d) being knowingly concerned in or party to any such contravention;

or

(e) conspiring with any other person to contravene any such provision, is liable in

damages for any loss caused to any other person by such conduct.

(2) An action under subsection (1) may be commenced at any time within three years

from time to time when the cause of action arose.

51. (1) Any enterprise that is aggrieved by a finding of the Commission may, within fifteen days after the date of that finding appeal to a Judge in Cahmbers.

(2) The Judge in Chambers may –

(a) confirm, modify or reverse the Commission’s finding or any part thereof; or

(b) direct the Commission to reconsider, either generally or in respect of any specified matters, the whole or any specified part of the matter to which the appeals relates.

(3) In giving any direction under this section the Judge shall –

(a) advise the Commission of his reasons for doing so, and the reconsideration of the whole or any part of the matter that is referred for reconsideration.

(4) In reconsidering the matter, the Commission shall have regard to the Judge’s reasons for giving a direction under subsection (2) and the Judge’s direction under subsection (3).

Operation of 52. Where an appeal is brought against any findings of the commission, any directions

order pending or order of the Commission that is based on such findings shall remain in force pending

determination the determination of the appeal, unless the Judge otherwise orders.

of appeal

PART VIII

The Community Competition Commission

References to 53. (1) Where the Commission seeks to determine whether conduct by an enterprise in

Community another Member State prejudices trade or prevents, restricts or distorts competition in

Competition Guyana, the Commission shall refer the matter to the Community Competition

Commission Commission.

(2) The Minister may request the Community Competition Commission to cause an

investigation to be carried out where he has reason to believe that business conduct by

an enterprise located in another Member State prejudices trade or prevents, restricts

or distorts competition in Guyana.

(3) A reference or request made under subsection (1) or (2) shall be in writing and

shall disclose such information as would enable the Community Competition

Commission to make a preliminary assessment whether it should proceed to cause the

investigation to be carried out.

(4) Where the Community Competition Commission-

(a) on its own initiative, or

(b) at the request of the Minister or Commission

has conducted an investigation, in accordance with Article 174 of the Revised Treaty of Chaguaramas, respecting any anti-competitive business conduct by an enterprise in another Member State, and given notice of its determination to the Commission, the Commission shall record the determination and register it in the High Court.

(5) A determination referred to in subsection (4) shall be binding on all parties to

the matter and shall be enforced in the same manner as a judgment of the High Court.

(6) A party who is aggrieved by a determination of the Community Competition

Commission may apply to the Caribbean Court of Justice for a review of that determination.

54. (1) The Community Competition Commission shall exercise the functions specified

in section 6 in Guyana.

(2) The Community Competition Commission shall, in relation to any matter

referred to it or any request made to it under section 53 (1) or (2), as the case may be,

have power to do any act specified in section 7 (1) to (6).

(3) The provisions of the sections specified in subsection (4) shall apply with

necessary modifications in relation to any investigation or inquiry being carried out by

the Community Competition Commission under this Act.

(4) The sections referred to in subsection (3) are –

(a) section 7 (7)-(10) (summons and hearings and offences connected therewith);

(b) section 14 (power of entry and search);

(c) section 15 (destruction of records);

(d) section 17 (discontinuance of inquiry or investigation);

(e) section 22 (action in relation to anti-competitive agreement or trade practice);

(f) section 25 (action in relation to abuse of dominant position);

(g) section 26 (exception to section 25);

(h) section 27 (provisions relating to order under section 25);

(i) section 35 (grant of authorization);

(j) section 37 (revocation of authorization);

(k) section 38 (register of authorization);

(l) section 57 (power to prohibit disclosure of information, documents and evidence);

(m) section 58 (confidentiality).

Effect of 55. A decision of the Community Competition Commission under this Act is binding on

decisions of all parties to which it relates and is enforceable in the High Court to the same extent as

Community a decision made by the Commission.

Competition

Commission

PART IX

General

Regulations 56. (1) The Commission may, with the approval of the Minister, make regulations for

giving effect to the provisions of this Act.

(2) Without prejudice to the generally of subsection (1), the Commission may, with

the approval of the Minister, make regulations-

(a) prescribing the procedures to be followed in respect of applications and

notices to, and the proceedings of the Commission, and also the form of

any forms or notices necessary to give effect to the Act.

setting the levels of fees that it shall charge under section 9, and guidelines

for the levels of fixed penalties that it shall charge under section 49.

Power to prohibit 57. (1) The Commission may prohibit the publication or communication of any

disclosure of information furnished or obtained, documents produced, obtained or tendered, or

information, evidence given to the Commission in connection with the Commission’s operations.

documents and

evidence.

(2) A person who published or communicates any information, documents or

evidence, the publication of which is prohibited under subsection (1) is guilty of an offence and liable on summary conviction to a fine of one million dollars and to imprisonment for three months.

Confidentiality 58. (1) The Commission and every person concerned or employed in the administration

of this Act shall regard as secret and confidential, all documents, information or matters

disclosed in the administration of this Act except those disclosures which the

Commission considered necessary in the discharge of its functions.

(2) It shall be an offence for any person in the service of the Commission to disclose to any other person who is not in the service of the Commission, any trade secret of any enterprise which may come to his knowledge in the course of discharging his duties under this Act.

(3) A person who commits an offence under this section is liable on summary conviction to a fine of one million dollars and to imprisonment for three months.

59. (1) The Commission shall not take action under section 22 if, within six months after the commencement of this Act, the parties concerned notify the Commission of the details of the anti-competitive agreement or practice agreed with the Commission as to the manner and the period within which that agreement or practice will be terminated and have otherwise settled the matter.

(2) The President may if necessary, within eighteen months of the coming into operation of this Act, by Order subject to affirmative resolution of the National Assembly, amend a provision of this Act to bring it into conformity with the Revised Treaty of Chaguaramas or with accepted commercial practice within the Community.

FIRST SCHEDULE

The Competition Commission

Constitution of 1. (1) The Commission shall consist of the number of persons, not being less than

Commission three nor more than five that the Minister, after consultation with relevant

organizations, including –

(a) the private sector;

(b) the legal profession; and

(c) consumers,

may appoint.

(2) The member shall be appointed by the Minister by instrument in writing or such period not exceeding three years as the Minister may specify in the instrument of appointment and each member shall be legible for reappointment. Members shall be appointed from among persons appearing to the Minister to be of high character and integrity, and to be qualified as having had extensive and relevant professional expertise in trade, finance, economic law, according, or business management.

(3) There shall be a secretary of the Commission, who shall be appointed by the Commission.

(4) The Director shall be a member ex officio of the Commission, but shall not have the right to vote.

Chairman 2. The minister shall appoint one of the members of the Commission to be chairman

of the Commission.

Resignations 3. (1) A member other than the chairman may at any time resign his office by

instrument in writing addresses to the Minister and transmitted through the chairman, and from

the date of the receipt by the Minister of that instrument, that member shall cease to be a

member of the Commission.

(2) The chairman may at any time resign his office by instrument in writing

addressed to the Minister, and such resignation shall take effect as from the date on which the

Minister receives that instrument.

Revocation 4. The Minister may revoke the appointment of any member if such member –

(a) becomes permanently unable to perform his functions by reason of a physical or mental infirmity;

(b) is convicted and sentenced to a term of imprisonment;

(c) fails without reasonable excuse to carry out any of his functions under this Act;

(d) engages in such activities as are reasonably considered by the Commission to be prejudicial to the Commission’s interest.

Gazetting of 5. The names of all members of the Commission as first constituted and every

appointments change of membership shall be published in the Gazette.

Leave of 6. The Minister may, on application in writing, grant leave of absence to a

Absence. Member.

Seal and 7. (1) The Commission’s seal shall be kept in the custody of the Secretary and

execution of shall be affixed to instruments pursuant to a resolution of the Commission, in

documents. the presence of the Secretary and any other member of the Commission.

(2) The Commission’s seal shall be authenticated by the signature of the chairman in his absence the member so acting.

(3) All documents other than those required by law to be under seal, made by, and all decisions of; the Commission may be signified under the hand of the chairman and Secretary or persons so acting.

8. (1) The Commission shall meet as often as may be necessary or expedient for the transaction of its business and such meetings shall be held at such places and times and on such days as the Commission may determine.

(2) The chairman may at any time call a special meeting of the Commission, and shall call a special meeting to be held within seven days of a written request for that purpose addressed to him by any two members.

(3) The chairman shall preside at all meetings of the Commission and if the chairman is absent from the meeting, the members present and constituting a quorum shall elect one of their number to preside at that meeting.

(4) The quorum of the Commission shall be three.

(5) The Commission’s decisions shal be by a majority of voted, and in addition to an original vote, the chairman or other person presiding shall have a casting vote in any case in which the voting is equal.

(6) Minutes of each meeting shall be kept in proper form and shall be confirmed as soon as practicable thereafter at a subsequent meeting.

(7) Subject to the provisions of this Schedule the Commission may regulate its own proceedings.

Disclosure of 9. A member who is directly or indirectly interested in any matter which is being

interest with by the Commission shall disclose the nature of his interest at a meeting of the Commission and shall not take part in any deliberation or decision of the Commission with respect to that matter.

Protection of 10. No act done or proceeding taken under this Act shall be questioned on the

Commission ground of –

(a) the exercise of an vacancy in the membership of; or any defect in the constitution of the Commission;or

(b) any omission, defect or irregularity not a affecting the merits of the case.

Protection of 11. (1) No action, suit or other proceedings shall be brought or instituted personally

members against any member in respect of any act done bona fide in the course of carrying out the

provisions of this Act.

(2) Where any member is exempt from liability by reason only of the provisions of

this paragraph, the Commission shall be liable to the extent that it would if that member were a

servant or agent of the Commission.

Remuneration of 12. There shall be paid from the funds of the Commission to the chairman and other

members. members of the Commission such remuneration, whether by way of honorarium, salary or

fees, and such allowances as the Minister may determine.

SECOND SCHEDULE TO COMPETITION AND FAIR TRADING ACT (2006)

FORM A

Summons to Witness to Appear before the Competition Commission

To: __________________________________________________________________________

(name of witness)

_____________________________________________________________________________

(address of witness)

Take notice that you are hereby required to appear before the Commission for examination pursuant to section 7(8) of the Competition and Fair Trading Act.

The Commission is presently conducting an investigation pursuant to section 6(1) of the Act to determine whether

_____________________________________________________________________________

(name of enterprise)

is engaged in business practices in contravention of the Act.

Please be present as follows:

Date: ___________________________________________________________________

Time:___________________________________________________________________

Place:___________________________________________________________________

You have a right to be represented by an Attorney-at-law or any other person.

Failure to appear without reasonable excuse may subject you to a fine of one million dollars and to imprisonment for three months pursuant to section 7(10) of the Competition and Fair Trading Act.

Dated the day of 201

_____________________

Director

Competition Commission

FORM B

NOTICE TO PRODUCE DOCUMENTS

IN RELATION TO AN INVESTIAGTION BY THE COMPETITION COMMISSION

Nature of Investigation……………………………………………………………………………………………………………………………………………..

........................................................................................................................................................................

TO:…………………………………………………………………………………………………………………………………………………………………………….

(name of person required to provide documents)

…………………………………………………………………………………………………………………………………………………………………

(address)

Take Notice that pursuant to sections 7 (3) and 19 of the Competition and fair Trading Act, the Commission requires you to produce for its inspection the following document (s), which must be produced at the offices of the Competition Commission located at

…………………………………………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………………………………………

within twenty days of the date of service of this Notice.

Description of Documents required …………………………………………………………………………………………………………………………..

…………………………………………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………………………………………

Failure to produce the document(s) as required is an offence under section 7 (10) of the Competition and Fair Trading Act and may subject the offender to a fine of one million dollars and to imprisonment for three months.

Dated the day of . 2010 ……………………………………….

Director,

Competition Commission