Competition authorities. A Competition Commission will be set up to investigate and prosecute infringements before a Competition Tribunal. In the telecommunications and broadcasting sectors, the Commission will have concurrent jurisdiction with the Communications Authority.
While adjudicative power rests with the Tribunal, all infringements investigated by the Commission will not necessarily be brought before it. The Commission can accept commitments to settle cases.
Leniency. The Bill also contemplates the introduction of a leniency regime where undertakings, in exchange for their co-operation in an investigation, would not face pecuniary penalties. Detailed conditions for the grant of leniency will likely be spelled out by the Commission when it adopts implementing guidelines. It is to be regretted, however, that the Bill appears to consider the conclusion of written leniency agreements. This contrasts with most other leniency regimes that allow for an oral process. A written process entails significant risks of disclosure in civil litigation, which renders a leniency regime very unattractive for prospective applicants.
Investigations. The Commission will have wide-ranging investigating powers, including the power to request information and documents, the power to request explanations, and, after obtaining a warrant from the Court of First Instance, the power to enter and search premises.
Guidelines. The Bill sets out very clear requirements for the Competition Commission to adopt a variety of guidelines concerning its enforcement of the conduct rules as well as on procedural issues. There is also a requirement that all guidelines be put to public consultation. If it follows international practice, the Commission would be expected to explain in guidelines its policy on materiality thresholds, the definition of relevant markets, the factors used to establish the existence of a significant degree of market power, detailed conditions for the grant of leniency, etc. During the legislative process, the Government provided the Legislative Council with illustrative guidelines on the enforcement of the conduct rules and on market definition.