Singapore competition panel seeks enforcement tools, streamlined investigation process

THE Competition Commission of Singapore (CCS) is seeking feedback on proposed changes to the Competition Act, which aims to level the playing field among businesses and promote innovation and productivity.

The proposed changes seek to:

(a) codify the process of providing confidential advice to businesses for anticipated mergers, which already exists under the CCS Guidelines on Merger Procedures 2012;

(b) enable businesses under investigation to offer legally binding commitments to address any anti-competitive conduct involving sections 34 and 47 of the Act; and

(c) enable CCS's evidence-gathering and investigation process to be more efficient, to minimise any potential disruption to businesses.

Rationale

For the first proposed change, the CCS said that since 2012, businesses that are considering mergers and are concerned about whether these would infringe the Competition Act have been able to approach the commission for confidential advice.

The proposed change will simply formalise this process, and provide greater assurance for businesses to consider confidential advice when assessing whether a potential merger would infringe the Act.

For the second proposed change, the CCS said that during its investigations into potential infringements, the companies being probed may offer voluntary undertakings to address the competition concerns identified. Should the CCS accept these undertakings, the investigation would stop there.

However, in the case of any future breach of these undertakings, the commission would have to reopen the investigation, which is resource intensive and does not allow it to address the harm done to the market in a timely way. This is because the voluntary undertakings are neither binding nor enforceable.

The commission is thus proposing the rule change to enable these companies to offer legally binding commitments to address the anti-competitive conduct. Where there is a breach of such commitments, it can then enforce the commitments through the Courts.

For the third proposed change, currently, occupants of premises that the CCS inspects or searches are required to provide only an explanation of the documents seized on the premises, or information uncovered during the inspections.

The commission is not empowered to ask general questions in the investigation without first serving a written notice under Section 63. This limits the efficiency of its investigation as it has to serve written notices on each individual to be interviewed.

The proposed amendment will thus enable CCS's evidence-gathering process to be more effective. It also assured that the scope of its questioning will still be limited to the subject matter or purpose of the investigation, and the change does not expand its powers of investigation.

"Rather, the aim of the proposed amendment is to streamline the process of service of the various documents to occupants of a premise and minimise any potential disruption to businesses," it said.

The proposed changes have been introduced after taking into account the commission's practical experience in enforcing the Act, it said.

The closing date for the submission of feedback is Jan 11, 2018.

The commission welcomes responses from all sources, including law firms, the business community, government departments, as well as members of the public.