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The Competition Commission Issues Finalised Guidelines of the Competition Act 
Posted on Thursday, December 22, 2005 - 12:00 AM

The Competition Commission of Singapore (CCS) has today, completed its issuance of all the guidelines of the Competition Act 2004 (‘Act’) in relation to the prohibitions which will commence on 1 January 2006.
The eleven guidelines, which will provide substantial guidance to businesses, are:

• CCS Guideline on the Major Provisions(Refer to Notes to Editor 2).
• CCS Guideline on the Section 34 Prohibition
• CCS Guideline on the Section 47 Prohibition
• CCS Guideline on Market Definition
• CCS Guideline on Powers of Investigation
• CCS Guideline on Enforcement
• CCS Guideline on Lenient Treatment for Undertakings Coming Forward with Information on Cartel Activity Cases
• CCS Guideline on Filing Notifications for Guidance or Decision
• CCS Guideline on Transitional Arrangements
• CCS Guideline on the Appropriate Amount of Penalty
• CCS Guideline on the Treatment of Intellectual Property Rights

2. The CCS Guideline on the Treatment of Intellectual Property Rights (IPR) was finalized following a three-week public consultation (Refer to Notes to Editor 3) which closed in October. A total of 13 submissions were received. The revisions to the IPR Guideline are outlined in Appendix 1.

3. The finalized IPR Guideline includes the following clarification and revisions:

a) The CCS has clarified the scope of the vertical exclusion (Refer to Notes to Editor 4). IPR provisions will be covered by the vertical exclusion, provided that they do not constitute the main object of the agreement, and are directly related to the use, sale or resale of goods and services. For example, vertical restraints within a franchise agreement, including IPR provisions such as the use of the trademark, are generally covered by the vertical exclusion.

b) The guideline was revised to reflect that agreements involving price-fixing, market-sharing or output limitations will be deemed to always have an appreciable adverse effect on competition, only in the case of agreements between competitors.

c) With regard to the evaluation of the competitive effects of grantbacks (Refer to Notes to Editor 5), the guideline indicates that grantbacks generally do not pose competition concerns, especially when they are non-exclusive in nature.

4. The Guideline on the Section 47 prohibition (abuse of dominant position) earlier released on 29 July 2005 has been amended (at paras 7.6 and 7.7) to clarify the position on financial immunity following notification of conduct in relation to Section 47. Unlike notifications of agreements for guidance or decision on Section 34 issues (relating to agreements preventing, restricting or distorting competition), notifications of conduct for guidance or decision on Section 47 issues do not give an undertaking immunity from financial penalty for infringements occurring between the point of notification and the CCS’ determination of the application. Relevant clarifications have also been made to the Guideline on the Section 34 Prohibition.

5. With regard to cross-sectoral competition case management, the CCS and sectoral regulators will be guided by the following principle: The CCS will work out with the relevant sectoral regulator on which regulator is best placed to handle the case in accordance with the legal powers given to each regulator, which will prevent double jeopardy and minimise regulatory burden in dealing with the case.

6. The CCS thanks all the contributors for their substantive comments at these public consultations over 2005. The 11 finalised guidelines are available on the CCS website at www.ccs.gov.sg.