Competition Act

Competition Commission Rules of Procedure 2009

[GN 161 of 2009 – 12 December 2009] [Section 38]

PART I – PRELIMINARY

1. Short title

These rules may be cited as the Competition Commission Rules of Procedure 2009.

2. Interpretation

(1) In these rules –

 "Act" means the Competition Act;

 "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) - (5) –

(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.

[R. 2 amended by r. 3 of GN 202 of 2011 w.e.f. 26 November 2011.]

3. Application 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 Executive Director

The Executive Director shall, subject to rule 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. Enquiry by Executive Director

(1) The Executive Director may make such enquiries as he thinks appropriate –

 (a) pursuant to his powers to keep markets in Mauritius and conditions of competition in those markets under 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 Mauritius 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 rule 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. Complaint

(1) A complaint shall be lodged with the Executive Director by filling in the form available on the Commission's website or at 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 2 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. Application for guidance

(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 authorised 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 contravention of the Act;

 (d) the signature of any authorised representative of the enterprise;

 (e) such other particulars as are relevant to the undertaking; and

 (f) any other information that the Executive Director may determine.

(5) Where, at any time after receipt of an application under paragraphs (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 2 or more similar applications for consideration.

PART III – INVESTIGATION BY EXECUTIVE DIRECTOR

8. Prioritisation

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. Timetable

(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 shall normally provide that the duration of an investigation shall not exceed –

 (a) in the case of a merger, 6 months;

 (b) in the case of any other restrictive business practice, 18 months.

(6) Where at any point during an investigation, the

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