Corporate And Regulatory

Competition (Merger Control) Regulations, 2007 (Pt. 3 of 3)

Status: In force


PART IV

Commitments

30.          Acceptance of Commitments.—(1) The Commission, at any time before making a decision as to whether a situation has arisen or is likely to arise which shall mitigate, prevent, restrict or distort competition in the relevant market, may accept commitments from the concerned persons that remedy such situations.

(2)          Before accepting any commitments, the Commission may ensure that the commitments are sufficient to clearly address the adverse effects to competition which have been identified.

31.          Procedures of Commitments.—The Commission shall encourage the relevant persons to take the initiatives for proposing suitable commitments which may appropriately resolve any competition concerns.

(2)          The Commission may consult with such persons as it thinks appropriate before accepting the commitments offered by them.

32.          Time frame for Negotiation of Commitments.—(1) The Commission may stop action against the relevant person, when it receives a proposal for commitments.

(2)          Subject to sub-regulation (1) above, the initiated action may remain suspended for the duration for the negotiation between the Commission and the parties concerned.

(3)          Notwithstanding, anything contained hereinabove, the Commission shall have the right to terminate any negotiations and proceed to make a decision if commitments cannot be agreed upon within a reasonable time frame.

33.          Issue of favourable decisions upon acceptance of commitment.—(1) The Commission may issue a favourable decision where commitments have been accepted and it shall record the details as part of its decision in the public register.

(2)          The Commission may revoke the favourable decision, if any of the commitments accepted by the Commission have been breached.

34.          Application to vary, substitute or release a commitment.—(1) The party whose commitment has been accepted, may apply to the Commission to vary, substitute or release that commitment.  

(2)          The party making an application under sub-regulation (1) above shall notify to all other concerned parties about the application, within two working days from the date on which such application is made.

(3)          The application for variation, substitution or release shall be submitted to the Commission in writing which shall contain the following:--

(a)          a statement as to whether the party is applying for a variation, substitution or release;

(b)          in case of a variation or substitution, a description of the terms of the proposed varied or substitute commitment;

(c)           an explanation as to whether the competition concerns sought to be addressed by the commitment which the party is seeking to vary substitute or release, still exist; and

(d)          an explanation as to the impact which the variation, substitution or release of the commitment will have on the competition concerns, if they still exist.

All explanations shall be clear and accompanied by relevant supporting documents.

(4)          Before varying, substituting or releasing a commitment, the Commission will generally consult with such persons as it thinks appropriate.

PART V

Cooperation between the Commission and other regulatory bodies

35.          Cooperation between the Commission and other regulatory authorities on competition matters.—(1) Subject to section 48, the Commission may enter into any agreement with any regulatory authority for the purposes of—

(a)          facilitation and cooperation between the Commission and the regulatory authority in the performance of their respective functions insofar as they relate to issues of competition between undertakings;

(b)          avoiding duplication of activities by the Commission and the regulatory authority, being activities involving the determination of the effects on competition of any act done, or proposed to be done; and

(c)           ensuring as far as practicable, consistency between decisions made or other steps taken by the Commission and the regulatory authority in so far as any part of those decisions or steps consists of or relates to a determination of any issue of competition between undertakings.

(2)          An agreement that is entered into under sub-regulation (1) above is referred to in this regulation as a cooperation agreement.

(3)          A cooperation agreement may include provisions—

(a)          enabling each party, the information to furnish to another party information in its possession if the information is required by that other party for the purpose of the performance by it of any of its functions;

(b)          enabling each party to forbear to perform any of its functions in relation to a matter in circumstances where it is satisfied that another party is performing functions in relation to that matter; and

(c)           requiring each party to consult with any other party before performing any function in the circumstances where the respective exercise by each party of the function concerned involves the determination of issues of competition between undertakings that are identical to one another or fall within the same category of such an issue, being a category specified in the agreement.

(4)          In this regulation issue of competition between undertakings includes an issue of competition between undertakings that arises generally in the sector of activity in relation to which the Commission or the regulatory authority may exercise powers and such an issue that falls, or could fall, to be the subject of the exercise by the Commission or the regulatory authority of powers in particular circumstances;

party means a party to a cooperation agreement and a reference to another party (whether that expression or the expression the other party is used) shall, where there are two or more other parties to the agreement, be construed as a reference to one or more of those other parties or each of them, as appropriate.

36.          Cooperation between the Commission and foreign competition bodies.—(1) Subject to section 47, the Commission may, with the approval of the Federal Government, enter into arrangements with any foreign competition body whereby each party to the arrangements may-

(a)          furnish to the other party information in its possession if the information is required by that other party for the purpose of performance by it of any of its functions; and

(b)          provide such other assistance to the other party as will facilitate the performance by that other party of any of its functions.

(2)          The Commission shall not furnish any information to a foreign competition body pursuant to such arrangements unless it requires, and obtains from, that body an undertaking in writing that it will comply with terms specified in the undertaking, including the provisions of any other written law concerning the disclosure^ such information by the Commission.

(3)          The Commission may give an undertaking .o a foreign competition body that it will comply with terms specified in the undertaking where—

(a)          those terms correspond to the provisions of any law in force in the country or territory in which the body is established, being provisions which concern the disclosure by the body of the information referred no in clause (b); and

(b)          compliance with the requirement is a condition imposed by the body for furnishing information in its possession to the Commission pursuant to the arrangements .referred to in sub-regulation (1).

(4)          In this regulation, foreign competition body means a person in whom there are vested functions under the law of another country or territory with respect to the enforcement or the administration of provisions of law of that country or territory concerning competition between undertakings.

PART VI

Decisions of the Commission

37.          Favourable Decisions of the Commission.—(1) Where the Commission makes a favourable decision, it may withdraw the show-cause notice, dispose of the reference or the private complaint, as the case may be, against the concerned undertaking.

(2)          The Commission shall give notice of the decision to the concerned undertakings and may also place the favourable decision on its website.

(3)          For the purpose of these regulations, the term favourable decision shall be construed as a decision of the Commission whereby a person or the parties concerned are absolved exempted or otherwise discharged from any alleged infringement of the provision of the Ordinance.

38.          Unfavourable decisions of the Commission.—(1) Where—

(a)          after considering the statements made, or documents produced, in the course of proceedings before the Commission; or

(b)          in the case of an inquiry, after considering the inquiry report, the Commission proposes to make a decision that any of the provisions of the Ordinance, rules, regulations, order or directions made or issued thereunder have been infringed, the Commission shall give written notice to the person(s) likely to be affected by such notice; and shall also give such person(s) an opportunity to make a representation to the Commission.

(2)          The Commission may also, upon considering the representation, if any, made by the person(s) concerned, as it thinks fit, make a decision that any of the provisions of the Ordinance, rules, regulations, orders or directions made or issued thereunder, have been infringed.

(3)          Every notice envisaged in sub-regulation (1) above shall state—

(a)          the facts on which the Commission relies, the objections taken by the Commission, the actions the Commission proposes and the reasons for the proposed action; and

(b)          the period within which a relevant person may make written representations to the Commission; provided, however, such period shall not exceed a period of 30 days.

(4)          A party to any proceeding before the Commission may on an application made to the Commission in that behalf, be allowed to inspect or obtain copies of the documents or records submitted during proceedings on payment of fee as specified in regulation 19; provided that an inspection shall be allowed only in the presence of an officer so authorized by the Commission.

(5)          Where, in written representation on the matters referred to in a notice given to a relevant person, that relevant person requests to make oral representations to the Commission on such matters, the Commission may give that relevant person a reasonable opportunity to make such oral representations.

(6)          Where the Commission has given the relevant person a reasonable opportunity to make oral representations under sub-regulation-5) above but no oral representations have been made, the Commission may proceed with the case in the absence of such representations.

Explanation:—Relevant person means a person to whom notice is required to be given under these regulations.

39.          Imposition of Penalty.—(1) Subject to section 38, the Commission may by order, direct any undertaking or any director, officer or employee of an undertaking, or any other person to pay by way; of penalty such sum as may be specified in the order if, after giving the undertaking concerned an opportunity of hearing, the Commission is of the opinion that the undertaking has acted in contravention of the provisions of the Ordinance.

(2)          For the recovery of any amount from any person the Commission may serve upon a concerned person or the Chief Executive or Director of the concerned undertaking a notice as prescribed in Schedule A.

PART VII

Appeals

40.          Appeals.—The person aggrieved by any order passed by any Member or authorized officer of the Commission pursuant to the provisions of the Ordinance, may file an appeal before the Appellate Bench of the Commission in accordance with the Competition Commission (Appeal) Rules, 2007.

PART VIII

Miscellaneous

41.          Guidelines.—(1) The Commission may, where deemed necessary issue and publish guidelines from time to time in order to ensure compliance with the provisions of the Ordinance or rules and regulations made thereunder.

(2)          Where the guidelines would apply to an industry or a sector of industry the Commission may, in preparing such guidelines, consult with the concerned regulatory authority (if any).

(3)          The guidelines shall be illustrative and not exhaustive and shall not set a limit on the enforcement powers of the Commission.

(4)          The guidelines shall not be a substitute for the Ordinance, the rules, regulations and the orders made thereunder.

42.          Forms.—(1) The application form prescribed under these regulations as provided in the Schedule to these regulations, shall be accessible to the public on the Commission's website.

(2)          The Commission may prescribe such other Forms as it deems fit for the purposes of these regulations.

(3)          The Commission may make any modification or amendment necessary to any Form.

(4)          Where strict compliance with a Form is not possible, the Commission may allow that Form to be complied with in such other manner as it deems appropriate.

43.          Directions as to Forms.—(1) A Form shall be completed and lodged in accordance with the relevant provisions of law and such directions as are specified in that Form or by the Commission.

(2)          Unless otherwise required, all particulars to be inserted in a Form, shall be in the English language.

44.          General requirements for documents submitted to Commission.—(1) Any document required to be submitted to the Commission shall be in accordance with the directions as are specified in the relevant Form prescribed or as directed by the Commission.

(2)          Every document, if not in the English language, shall be accompanied by a translation thereof, verified by the affidavit of a person qualified to translate it and in the case of a document in foreign language it shall also be certified by the embassy of the concerned foreign country in Pakistan, before it may be received, filed or used by the Commission.

45.          Associations of undertakings.—(1) Where a regulation requires the Commission to give notice of any matter to an association of undertakings, the Commission shall give such notice to the director, secretary, manager on of her similar officer of the association on its behalf.

(2)          Where a regulation requires the Commission to give notice of any matter to each of more than 20 members of an association of undertakings, the Commission may, instead of giving such notice to any such member, give such notice to the director, secretary, manager or other similar officer of the association on that member's behalf; provided that individual notice shall be given to the member who has made an application.

46.          Notices.—(1) Unless otherwise specified, any notice required to be sent to or served on any person      by the Commission pursuant to the Ordinance, rules or regulations made thereunder, may be:

(a)          delivered personally at the last known address of the person; or

(b)          left at or sent to the person by courier to the last known address ; or

(c)           sent to the person by facsimile or, with the consent of that person, by electronic mail; or

(d)          in case of a company or a body corporate at the last known registered address.

(2)          Where the Commission has taken all reasonable steps to give notice to the person but has been unable to give such notice or in the Commission's opinion there is doubt that it has been able to give such notice, it shall publish the same in at least one national Daily newspaper circulated:

(a)          in case of an undertaking being a company or body corporate, in the province where the registered office is situated;

(b)          in any other case, in the province where the notice has been served under sub-regulation (1) above.

(3)          Where these regulations allow or require notice to be given to a person, such notice shall be treated as if it had been received by or served on that person-

(a)          in the case of personal delivery, on the day of delivery;

(b)          when left at the last known address, on the day of leaving;

(c)           when sent by courier, on the working day after the day on which it was occurred; or

(d)          in the case of a facsimile transmitted on a working day before 5 p.m., on that day or in any other case on the working day after the day on which it is transmitted.

(4)          Where sub-regulation (2) applies, the notice shall be treated as having been given on the date of its publication.

(5)          Any notice given under these regulations shall be in writing.

47.          Time.—(1) Where an act is required to be done in accordance with these regulations within a specified period after or from a specified date, the period begins immediately after that date.

(2)          Where an act is required to be done in accordance with these regulations within or not less than a specified period before a specified date, the period ends immediately before that date.

(3)          Where the time prescribed by these regulations for doing any act expires on a day which is not a. working day, the act is in time if done at or before 5 p.m. on the following working day.

(4)          Where an act done in accordance with these regulations is done on a day which is not a working day, or after 5 p.m. on a working day, the act shall be treated as done on the following working day.

48.          Information to be treated as confidential.—(1) Where any information furnished to the Commission has been identified as confidential, but no statement in writing has been given to explain why the information is confidential, the Commission may give notice to the person furnishing the information to provide the statement in writing within such time limited as the Commission considers appropriate.

(2)          Where a statement in writing has been given to the Commission to explain why any information furnished to the Commission is confidential, the Commission may, in its discretion, require and give notice to the person furnishing the information to provide written clarification within such time limit as the Commission considers appropriate.

(3)          Where the person furnishing the information fails to provide to the Commission with the statement in writing mentioned in sub-regulation (1) or with the Written clarification mentioned in sub-regulation (2), as the case may be, within the time limit specified by the Commission, the information furnished will be deemed as non-confidential information.

(4)          Where the Commission proposes to disclose information which has been furnished to the Commission and identified as confidential, the Commission may—

(a)          inform the person who furnished the information or the person from whom the information originated, of the Commission's proposed action; and

(b)          give that person a reasonable opportunity to make representation to the Commission on the Commission's proposed action.

49.          Consultation.—The Commission shall have the discretion to consult with such persons whose consultation would be advantageous, necessary or convenient to carry out the functions or discharge the duties of the Commission under the Ordinance.

50.          Public register.—(1) The Commission shall maintain a register in which there shall be entered—

(a)          all decisions that the Commission is required to publish under these regulations;

(b)          all applications for decisions under the Ordinance, a summary of the nature and objectives and an indication of the final outcome of the application; and

(c)           all summaries of notices published under these regulations.

(2)          Subject to payment of inspection fee as prescribed under these regulations, the register shall be open to public inspection by prior appointment, at the Commission's office or such other address as may be notified, during business hours with restrictions as the Commission may decide from time to time.

51.          Powers to determine procedure in certain circumstances.—In a situation not provided for in these regulations, the procedure shall be determined by a Committee consisting of at least three members one of whom shall be the Chairman and such other Members as the Chairman may appoint.

52.          Removal of doubt/difficulty.—In the matter of implementation of these regulations, if any, doubt or difficulty arises, the same shall be placed before the Chairman and two Members, and their decision thereon shall be final and binding.

53.          Relaxation of Regulations.—11 any difficulty arises in giving effect to any provision of these regulations or other regulations made under the Ordinance in a particular case, or class of cases or it would be in the interest of competition so to do, the Commission may, for reasons to be recorded in writing, relax such requirements subject to such conditions as it may deem fit.

54.          Compliance with orders of the Commission.—The Commission shall have power to direct the parties concerned to file an affidavit of compliance with its order or such other documents in the manner specified in its order.

SCHEDULE

See regulation 4 FORM

INFORMATION TO BE PROVIDED BY THE UNDERTAKING(S) MAKING

THE APPLICATION

1.            Information about the applicant(s) and other parties to the agreement. 1.1. Please give the full name, address (by registered office, where appropriate, and principal place of business, if different), telephone and fax numbers and e-mail address (where available) of the applicant(s) and a brief description of the nature of its business. If the applicant(s) is a partnership, sole proprietor or other unincorporated body trading under a business name, give the name(s) and address(es) of the partners or proprietor(s). Please quote any reference which should be used.

1.2.         Please give the full name, address, telephone and fax numbers and e-mail address (where available) of any representative’s) who has been authorized to act for the applicant(s), indicating whom they represent and in what capacity (e.g. an advocate).

1.3.         Where the declaration to be made in the form set out in Part 2A is signed by an advocate or other representative of the applicant(s), please provide written proof of that representative's authority to act on the applicant(s)'s behalf.

1.4.         If a joint application is being submitted, state the full name of the joint representative, his address (by registered office, where appropriate, and principal place of business, if different), telephone and fax numbers and e-mail address (where available). Where the joint applicants have appointed separate representatives, an explanation must be included as to why a joint representative could not be appointed. The particulars listed in this paragraph must then be furnished for each representative.

1.5.         Please provide details of the steps taken or to be taken to notify all the other parties to the agreement or conduct which is the subject of the application of whom the applicant(s) is aware that the application is being submitted. Indicate whether those parties have received a copy of the application and if so, whether confidential information was included in the copy of the application. If the applicant(s) considers that it is not practicable to notify the other parties of the application, please give the reasons why it is not practicable.

1.6.         Please identify the groups to which each party to the agreement or conduct which is the subject of the application belongs. For the purposes of the information required by this Form, a group relationship exists where one undertaking:

1.6.1.     owns more than half the capital or business assets of another undertaking;

1.6.2.     has the power to exercise more than half the voting rights in another undertaking;

1.6.3.     has the power to appoint more than half the members of the supervisory board, board of directors or bodies legally representing the undertaking; or

1.6.4.     has the right to manage the affairs of another undertaking.

1.7.         An undertaking which is jointly controlled by several other undertakings (e.g. a joint venture) should be treated for the purpose of this application as being part of the group of each of these undertakings.

2.            Purpose of the Application. Please specify that the application is being made to get exemption, for a prohibited agreement as provided in section 4, explain how the agreement contributes to improving production or distribution and/or promoting technical or economic progress, and how consumers will be allowed a fair share of the resulting benefit. Explain how each restriction imposed by the agreement is indispensable to the attainment of those objectives, and how the agreement does not afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.

3.            Details of the Agreement or Conduct. 3.1. Please provide a brief description of the agreement or conduct which is the subject of the application (including the nature, content, purpose, date(s) and duration).

3.2.         If the application is made in relation to a written agreement, attach either an original of the most recent text of that agreement, or a copy certified by the applicant to be a true copy of the original. If the application is made in relation to an agreement which is not written, applicants are to provide a full description of the agreement. If the application is made in relation to conduct, provide a full description of that conduct.

3.3.         Identify any provisions in the agreement or aspects of the conduct which may restrict the parties in their freedom to take independent commercial decisions or to act on those decisions.

3.4.         If the application relates to standard form terms and conditions, indicate the number of agreements expected to be entered into on those terms and conditions.

4.            Information on the parties to the agreement or conduct and the groups to which they belong. 4.1. Please give the applicable turnover in the last business year, of each party to the agreement or conduct which is the subject of the application and the consolidated applicable turnover for the group (within the meaning of 1.6) to which each party belongs. Please also indicate what proportion of the turnover figures are attributable to the relevant product or geographic market. Please attach the most recent annual report and accounts (or equivalent for unincorporated bodies) for each party to the agreement or conduct and the most recent annual report and accounts for the ultimate parent company of these undertakings.

4.2.         Please list the product and/or services market(s) in which each party to the agreement or conduct and each member of the groups (within the meaning of 1.6) to which they belong are active. Where there are a large number of products and services, please pay particular attention to any markets in which the combined undertakings have significant markets shares, and/or the largest proportions of the turnover.

5.            Other Information, 5.1. Please give any other information which the applicant(s) considers may be helpful. In particular, if you believe that an agreement:

5.1.1.     does not have an appreciable adverse effect on competition in Pakistan please state your reasons  and provide evidence. Note, however, that certain agreements, such as those relating to price-fixing will be regarded as having an appreciable adverse effect;

5.1.2.     has net economic benefits that would not be achieved except for the agreement. In determining whether a net economic benefit exists, the Commission will consider whether the agreement contributes to improving production or distribution or promoting technical or economic progress in a way which does not impose restrictions which are not indispensable to the attainment of those objectives and which would not afford the possibility of eliminating competition substantially. Applicants should provide details of any studies or documents which have been produced to assess the feasibility of operation of the agreement and the benefits likely to result from the agreement.

5.2.         Please specify that fee is being paid for this application and attach an evidence of the payment.

6.            Supporting Documents. Please ensure that the applicant(s) has attached the following documents (where relevant) to the application:

6.1.         if 1.3 of this form applies, written proof of the representative's authority to act on the applicant(s)' behalf;

6.2.         if 3.2 of this form applies with regard to a written agreement, either an original or certified copy, of the most recent version of the text of the agreement which is the subject of the application; and

6.3.         the most recent annual report and accounts (or equivalent for unincorporated bodies) for each party to the agreement or conduct and the most recent annual report and accounts for the ultimate parent company of these undertakings (see 4.1 of this form).

PART 2

Declaration

Under section 38(l)(c) and (d), it is an offence, to provide information which is false or misleading in a material particular if the person providing it knows that it is false or misleading, or is reckless as to whether it is. If the person is a body corporate, its officers may be guilty of an offence under section 38(1 )(c) and (d).

Declaration

The undersigned declare and confirm that all information given in the Form A and all pages annexed hereto are correct to the best of their knowledge and belief, and that all estimates are identified as such and are their best estimates based on the underlying facts.

Signature(s)

                Name(s) (in block capitals):

                Designation(s):

Date:

SCHEDULE A

(See sub-regulation (2) of regulation 39)

Notice under section 40(1) of the Competition Ordinance, 2007 For Recovery of Penalties

To

(1)          Notice is hereby given that, WHEREAS an order dated: has been passed by the Commission against Name of the Undertaking for contravention of Section  of the Competition Ordinance, 2007 (the Ordinance) and a sum of Rs (Rupees only) has been imposed as penalty under section 38 and/or section 30 which has>become due and payable by you.

(2)          You are hereby notified under section 40 of the Act, to pay forthwith the aforesaid money due from you, within (15) fifteen days from the date of service of this notice, either by a Pay Order or Bank Demand Draft in favour of the Competition Commission of Pakistan in its A/c No:

(3)          Upon your failure to make payments within the aforesaid period, the Commission may proceed to recover the amount due by adopting among others, the following measures:

(a)          Attachment of immovable or sale of any immovable property, including bank account(s) of the person or undertaking.

(b)          Appointment of a receiver for the management of the movable or immovable property of the person or undertaking.

(c)           Deduction of the sum due by giving notice to persons:

(i)            from whom any money is due or may become due to you; or

(ii)           who holds or controls the receipt or disposal of or may subsequently hold or control the receipt or disposal of any money belonging to you.

(d)          Any other measure as envisaged by section 40.

 

top
How to use the grid?
x

You can explore the contents of the grid in many ways.

The grid has multiple search criteria. For a general search, input the 'search word' into the top column you want to search. Select 'contain' from the drop-down menu below, and hit 'enter' The search results will be automatcally populated. Please NOTE the table is Ajax-enabled, which means it won't refresh, and will display results in a seamless way, which can be seen usually in few seconds. Alternatively, you can press the 'sort buttons before the label in each column in the header to sort the records in ascending or descending order.

You can stretch the column size by clicking on the column grid to suit your requirements. 

(or press ESC or click the overlay)