Contents
COMPETITION AND CONSUMER PROTECTION
COMMISSION
ADMINISTRATIVE AND PROCEDURAL
GUIDELINES
Part I
1.
2.
3.
4.
5.
General Provisions
Short title and Commencement
Definitions
Commission structure
Correspondence with the Commission and
Board
Confidentiality
Part II
complaint
6.
7.
8.
9.
2014
for
filing
of
Modes of filing complaint before the
Commission
Submission of evidence to support complaint
Withdrawal
of
complaint
before
the
Commission
Process of dealing with complaints
Part III
Commission
10.
11.
12.
Procedure
Investigations
Initiating Investigations
Powers of Investigation
Notification of investigation
proposed recommendations
by
findings
the
and
COMPETITION AND CONSUMER PROTECTION ACT 2010: ADMINISTRATIVE GUIDELINES
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POLICY OBJECTIVE
Part IV
13.
14.
15.
16.
17.
Board Proceedings
Appearance before the Board of the
Commission
Content of Board Decision of the Commission
Effective Date of Decision of the Board of the
Commission
Seeking Clarification of a Board Decision of the
Commission
Appeal against Board Decision of the
Commission
PART V
Dealing with Sector Regulated
Activities
The policy objective of these Administrative and
Procedural Guidelines is to clarify the procedure to
be followed in the administration of the following:
a. Filing of and dealing with complaints;
b. Withdrawal of complaints;
c. Investigations by the Secretariat;
d. Merger Notifications; Board Proceedings.
The guidelines are also to enhance public awareness
and knowledge as relates to Competition and
Consumer Protection laws.
PREAMBLE
These Administrative guidelines on Practice and
Procedure are issued subject to the Competition and
Consumer Protection Commission Act, No. 24 of
2010 (the Act) and the Competition and Consumer
Protection (General) Regulations no. 96 of 2012 (the
Regulations) made thereunder and shall apply to the
extent that they are not inconsistent with both or
with any other written law.
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COMPETITION AND CONSUMER PROTECTION ACT 2010: ADMINISTRATIVE GUIDELINES
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The Competition and Consumer Protection
Commission (the Commission) in accordance with
Section 84 of the Act is mandated to issue guidelines
with respect to the effective implementation of
provisions of this Act. Specifically, Section 84 (1) of
the Act states that(1)
In the exercise of its functions
under this Act, the Commission may
make such guidelines as are necessary
for the better carrying out of the
provisions of this Act.
These guidelines are hereby established to set forth
the manner in which cases shall be dealt with by the
Secretariat and its Board.
These guidelines are not a substitute for the Act and
the regulations. They may be revised from time to
time, should the need arise. The examples in these
guidelines are for illustrative purposes only and
should not be taken as exhaustive. In applying these
guidelines, the facts and circumstances of each case
will be considered on a case-by-case basis. Persons
in doubt about how they and their commercial
activities may be affected by the Act may wish to seek
legal advice.
PART I
1.
GENERAL
Short Title& commencement
These guidelines may be cited as the
Competition
&
Consumer
Protection
Commission Guidelines of Practice and
Procedure, 2014 and shall come into force on
the date of their publication pursuant to
section 84(2) of the Act.
2.
Definition
Definitions
For purposes of these guidelines, any
word or phrase to which a meaning has
been assigned in the Act shall have such
meaning.
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3.
The Roles and Duties of the
Commission and its Board
(i)
(ii)
(iii)
4.
Correspondence
with
the
Commission
Secretariat
&
Board
For purposes of its operations the
Commission is composed of the Board
headed by the Chairperson and
Secretariat headed by the Executive
Director.
(i)
The Board is the adjudicative arm of the
Commission and makes decisions on
cases investigated by secretariat. The
Board also oversees the governance of
the Secretariat.
All correspondence addressed to the
Secretariat
of
the
Commission
concerning any matter subject to these
guidelines shall be addressed to the
Executive Director.
(ii)
The office hours of the Secretariat of the
Commission shall be Monday through to
Friday excluding public holidays from
0800 to 1300 hours and 1400 to 1700
hours or as prescribed by the
Commission from time to time.
5.
Confidentiality in relation to
information dealing with mergers
(i)
Where a document is filed/submitted
with the Secretariat by a party in any
matter
under
investigation,
the
Secretariat shall place the document in
the public record, unless the party
filing/submitting the document asserts
Secretariat forms the investigative arm
with specific functions as provided
under section 5 of the Act. The Board
cannot direct Secretariat to investigate a
case without following laid down
procedure Where the Board raises
concern, Secretariat is at liberty to
either investigate the case or not
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a claim of confidentiality at the time of
filing/submitting
(ii)
Unless otherwise specified in these
guidelines or in the Act, any party in a
matter before the Secretariat may
request that information contained in a
document filed/submitted by that party
with the Secretariat be considered
confidential and thus, not be disclosed
to the public. Such documents shall be
marked confidential and shall be placed
in a confidential record.
(iii)
A claim of confidentiality shall be made
only by the party to whom the
confidential information belongs
(iv)
Confidential
treatment
may
be
requested for any information falling
within the meaning of
‘confidential
information’ as defined under section 2
of the Act as meaning “trade, business,
commercial or industrial information that
belongs to an enterprise, has a particular
economic value and is not generally
available to, or known by others”
(v)
Request for confidential treatment shall
be made at the time of filing/submitting
before
the
Secretariat
of
the
document/item
containing
the
purported confidential information, and
shall be accompanied by a concise
statement indicating the type of
information and reasons for it being
confidential
(vi)
Where it is claimed that specific and
direct harm would accrue to the party
claiming confidentiality, sufficient facts
and details shall be provided as to the
nature and extent of such harm. The
request shall include the confidential
information, in a separately sealed
envelope, which shall be marked with
the filing/submission date, file number,
title of matter, the name of the party to
whom the information belongs and the
signature of the person requesting the
confidential treatment
(vii)
Each page of a document containing
confidential information should be
marked as ‘confidential’
(viii) Once properly filed/submitted and
established by the Secretariat as
confidential information within the
meaning of these guidelines, the
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information
shall
be
confidential
at
the
filing/submitting
(ix)
(x)
presumed
time
of
to classify the whole form 1 as
confidential. Information considered as
mandatory will be specified on the form.
In each filing/submission containing a
request for confidential treatment of
information, an abridged version or a
dummy of the confidential information
shall be placed in the public record to
the matter. The abridged or dummy
version shall contain blank pages
indicating that purported confidential
information is contained on those pages
and these blank pages shall be inserted
into each filing/submitting in place of
the
pages
containing
the
said
information.
Where a party appeals to the Board, the
merger will not be considered to have
been notified until the Board decision is
made
If the Secretariat rejects a claim for
confidentiality, it shall notify the party
claiming confidential treatment of
information
in
writing
of
the
Secretariat’s
decision
to
publicly
disclose the purported confidential
information. In such cases, the party
claiming confidentiality shall have the
right to appeal to the Board against the
decision of the Secretariat within 30
days of the said decision provided that
for merger cases, a party cannot request
(xi)
(xii)
Parties have a right to appeal to the
Tribunal if dissatisfied with the Board
decision
Any third party desiring public
disclosure of information in respect of
which there has been a proper claim of
confidentiality may submit with the
Secretariat:
(a) A request for public disclosure of the
information, setting out the reasons
therefore, including the public interest
in the disclosure of the information; and
(b) Any material in support of the reasons
why such information should be
publicly disclosed
(xiii) A copy of a request for the public
disclosure of information shall be served
on the party claiming confidentiality,
and that party may, file a reply with the
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Secretariat within 10 days after the date
of service of the request, and shall,
where a reply is filed, serve a copy
thereof on the party objecting to the
claim for confidentiality
(xiv)
(xv)
regional cooperation between the
Commission and such authority.
Notwithstanding the above provisions
the Secretariat may share confidential
information when it is under a legal
obligation do so.
PART II
Provided that where the Secretariat
discloses any confidential information it
shall:
a)
inform
the
party
claiming
confidentiality of such disclosure
and provide them an opportunity
to be heard on the same
disclosure; and
Any person who alleges that a person or an
enterprise is engaged in any practice prohibited
under the Act, may lodge a complaint with the
Secretariat through any of the following modes:
b)
Inform the receiving party to
maintain the confidentiality of the
disclosed
information.
The
Secretariat shall share confidential
information on a request from any
Competition or Consumer law
enforcement authority within the
context of any existing Memoranda
of Understanding, Treaty or
6.
Procedure for Filing Complaint
Modes of filing a Complaint
(a) Verbally: telephonically or by a physical visit
to the Commission offices, Monday to Friday
(excluding public holidays). Provided that a
verbal complaint shall be reduced into writing
by an authorized Commission officer or
inspector and may be signed by the
Complainant. Complaints made by way of
phone calls may be made any time of the day
if made through the toll free line. These will
also be followed by a written confirmation to
be signed by the Complainant
(b) In writing or
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(c) by whatever means: by whatever means of
communication whether email, letter or any
other mode reasonably understood by the
Commission.
(d) Complaint form may be signed by the
Complainant if complaint is by physical visit.
A complaint received verbally or by any other
means will be duly lodged even if the complaint
form is not signed.
7.
investigate a complaint on the basis of
insufficient
evidence
and
the
Complainant will be notified accordingly.
(vi) Evidence submitted to the Secretariat shall
remain in its custody unless otherwise decided
by it.
8. Withdrawal of a Complaint
(i)
A Complainant may make a request to
withdraw a complaint lodged before the
Secretariat in writing stating the
reasons. The Secretariat shall exercise
its discretion in making a decision
whether or not to grant the request for
withdrawal, taking into account such
factors as relate to public health, public
interest or any other factor as may be
determined by the case at hand.
(ii)
The Secretariat may deny a request for
withdrawal of a complaint in order to
serve public interest. In this regard the
Secretariat may consider whether there
is an overriding public interest that it
needs to serve which out weighs the
Complainant’s interest in a case
requested for withdrawal. Such public
interest could be determined by
Validity of Complaint.
The Secretariat may consider any one of the
under listed as constituting a valid complaint.
(i)
(ii)
(iii)
(iv)
(v)
Time should be a factor in lodging in a
complaint especially on perishable
products.
Information
Evidence
Full disclosure of information of the
complainant.
Any other incidental to the foregoing.
In order to assist the Secretariat carry out
effective investigations, every complaint
shall be accompanied by sufficient evidence
supporting the allegations of a breach of the
Act. The Secretariat may decide not to
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considering whether there are many
other complaints of the same or similar
nature against the same Respondent or
whether the conduct in question has
had or is likely to have negative impact
on a large scale in the market.
(iii)
(iv)
Where a request for withdrawal of a
complaint is denied, the Secretariat
shall retain any evidence submitted in
support of such complaint for purposes
of carrying out its investigations.
(ii)
The Respondent shall be notified of the
investigation in writing by notice. The
purpose of such notice is to inform the
party being investigated on the specific
allegations raised against them and also
to provide them with an opportunity to
respond to the said allegations.
(iii)
Written notice of an investigation may be
deferred until after the investigation is
concluded where the Secretariat has
reasonable grounds to believe that the
giving of a written notice prior to the
investigation may materially prejudice
its investigations.
(iv)
The Complainant (provided it is not the
Commission) and Respondent shall be
notified of Secretariat’s findings and its
proposed recommendation to the Board,
following a complete investigation
through a report pursuant to section
55(10) of the Act.
(v)
The Respondent and Complainant have
the right to respond to the Secretariat’s
findings and shall be given seven (7)
working days to respond to Secretariat’s
findings, in relation to part VII cases
The Complainant will be informed in
writing the reasons for the decision of
the Secretariat.
8.
Process of dealing with a Complaint
(i)
Once a complaint is lodged with
Secretariat and there are reasonable
grounds to believe that there is, or is
likely to be, a contravention of any
provisions of the Act, the Executive
Director may authorize the investigation
and assign a reference number thereto.
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while14 working days will be given as
regards cases contained in any other
part of the Act.
(vi)
(vii)
PART III
Upon the expiry of the 7 working days
within which parties are to respond to
the
Secretariat’s
findings,
the
Secretariat
shall
submit
its
recommendations to the Board.
9.
The Complainant or Respondent may
within 7 working days of receiving a
report on the Secretariat’s findings
request to make written or oral
submissions to the Board following
investigations by the Secretariat prior to
a decision being made by the Board.
10.
Initiating Investigations
The Secretariat may carry out an investigation
either acting on a complaint or on its own
initiative
Powers of Investigation
Powers to Issue Notices
(i)
(viii) The request by either party to make
submission to the Board shall be in
triplicate and shall be availed to the
other party, the Board and Secretariat.
(ix)
Where submissions are made to the
Board by either party, they shall be
made at no cost and such submissions
will be availed to the other party for
purposes of being given an opportunity
to respond to them.
Investigations by the Commission
Secretariat has powers to issue the
following notices during investigations
pursuant to section 55 of the Act;
(a) Notice of investigation;
(b) Notice to obtain information;
(c) Notice to produce documents
and notice to appear before the
Commission.
(ii)
A person or enterprise that fails to abide
by a Secretariat notice commits an
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offence and is liable for prosecution
before a court of competent jurisdiction.
(b)refuse to give an inspector such reasonable
assistance as required in the exercise of
his/her duty
Powers to enter and search premises
(iii)
Secretariat may obtain a warrant
granted by a court of competent
jurisdiction to enter and search
premises for purposes of obtaining any
information
or evidence during
investigations
Powers to use Inspectors
(iv)
The Board of the Commission has the
power to appoint inspectors under
section 7 of the Act
(v)
For purposes of ensuring compliance,
inspectors shall only carry out their
duties
as
determined
by
the
Commission pursuant to the terms and
conditions set by the Board
(vi)
(c) give false or misleading information to an
inspector
Power to enter into Consent Agreements or
Receive Undertakings
(viii) The Secretariat may at any time during
an investigation enter into a consent
agreement with an enterprise under
investigation or request such enterprise
to give an undertaking subject to the
Board’s approval.
(ix)
Both
consent
agreements
and
undertakings must be confirmed by the
Tribunal on referral by the Secretariat
(x)
Upon receipt of the consent agreement
or undertaking, the Tribunal may either:
It is a criminal offence to:
(a)
give or withhold confirmation or
(a) delay or obstruct an inspector in the
performance of his/her functions
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(b)
(xi)
(xii)
return the matter to the Board
indicating changes to be made
before confirmation.
agreement which has the risk of causing
serious or irreparable injury to a
particular person
Once confirmed by the Tribunal the
Undertakings or Consent agreements
shall:
(b) An enterprise is a party to an agreement
which is subject to review, to a monopoly
situation or to a merger, on which
investigations are being conducted &
there is prima facie evidence of
irreparable damage to competition
(a)
be published by Secretariat in
form of a decision; and
(b)
have effect as if it were a direction
of the Board under section 59 of
the Act
(vx)
Any person or enterprise which fails to
abide by any conditions stated in a
consent agreement or with any
undertaking given is liable to pay the
Commission a fine not exceeding 10% of
its annual turnover
Such interim measures may be in the
form of written directions requiring
appropriate action to:
a) prevent serious or irreparable injury to a
particular person or category of persons;
b) protect the public interest; or
c) prevent or pre-empt action being taken by
the enterprise under investigation.
Powers to Issue Interim Measures
(xiii) The Secretariat
measures where:
may
give
Part IV
Board Proceedings
11.
Appearance before the Board of the
Commission
interim
(a)before completion of its examination has
reasonable grounds to suspect that an
enterprise is a party to a prohibited
(i)
Any party with an interest in a matter
before the Secretariat may request to
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make
submissions
by
personal
appearance or in writing to the Board of
the Commission prior to a decision being
made in the same matter.
(ii)
12.
There shall be no cost incurred by any
party who appears before the Board for
the purposes of Part V of these
Guidelines.
Availing of Board Decision
Copies of the Board’s decisions shall be availed
to the parties in any matter before the
Commission.
13.
Seeking Clarification of a Board Decision
Any party or the party’s authorized
representative,
in
writing
seeking
a
clarification of a Board decision may request
the Chairperson of the Board to provide such
clarification on any point of the decision.
14.
Appeal against Board Decision
(i)
The effective date of the Board decision
is pursuant to section 60 of the Act,
which is the date the decision is served
on the parties to the said decision
Thus any party aggrieved with a decision of the
Board may appeal against such decision to the
Tribunal within thirty (30) days of receipt
thereof.
PART V
Dealing with Sector Regulated Activities
(i)
Pursuant to section 43 of the Act the
Secretariat may enter into Memoranda
of Understanding with sector regulators
and other enforcement agencies for
purposes
of
coordinating
and
harmonizing
matters
relating
to
competition in other sectors of the
economy
The said Memoranda of Understanding may aim to
facilitate the sharing of information and the carrying
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out of joint investigations with sector regulators and
enforcement agencies.
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