i ENFORCEMENT POLICIES AND GUIDANCE
The Competition Act, Chapter 50B of Singapore (the Competition Act) was enacted in 2004 and is the principal statute governing the competition law regime in Singapore. The Competition Act has the objective of promoting the efficient functioning of Singapore’s markets to enhance the competitiveness of the economy.
Cartel enforcement falls within the scope of Section 34 of the Competition Act, which prohibits agreements between undertakings, decisions by associations of undertakings or concerted practices that have, as their object or effect, the prevention, restriction or distortion of competition within Singapore unless excluded by the Third Schedule to the Competition Act or a block exemption (the Section 34 Prohibition).
Agreements caught under the Section 34 Prohibition can range from hard-core cartels to concerted practices where no formal agreement or decision was reached, and include both legally enforceable and non-enforceable written and oral agreements, as well as ‘gentlemen’s agreements’. All that is required is that parties arrive at a consensus on the actions each party will, or will not, take.
The Competition Commission of Singapore (CCS) administers and enforces the Competition Act.
Financial penalties imposed by the CCS: 1 January 2006 to 31 May 2016
Ball bearing cartel
Freight forwarders cartel
Express bus operators cartel
Financial advisers cartel
Financial penalties imposed by the CCS: 1 January 2006 to 31 May 2016
Modelling agencies cartel
Ferry operators cartel
Pest control operators cartel
Electric works cartel
Motor vehicle traders cartel
Employment agencies cartel
Since the Section 34 Prohibition came into effect on 1 January 2006, there have been 10 cartel infringement decisions issued by the CCS. In 2014, the CCS issued its first two infringement decisions against international cartels, in which record financial penalties were imposed by the CCS against the infringing parties. With these decisions and the CCS’s first exercise of the extraterritorial reach of its enforcement powers, the CCS has ‘signal[led] [its] intent to act against international cartels that have an anticompetitive impact in Singapore’,2 (i.e., insofar as their cartel conduct affects or restricts competition in Singapore). In an interview in 2015, the CCS Chief Executive Toh Han Li also indicated that some of the CCS’s active leniency cases are international cartel cases and that the CCS ‘will announce those when [the CCS is] ready to do so’.3
The CCS takes a view that hard-core cartels are one of the most harmful forms of anticompetitive conduct, and that ‘[t]he detection and enforcement against hard-core cartels will remain a high enforcement priority for the CCS.’4
Pursuant to Section 61 of the Competition Act, the CCS has published guidelines indicating the manner in which it will interpret and give effect to the provisions of the Competition Act. There have been two sets of Guidelines to date of particular relevance to cartel enforcement, namely the CCS Guidelines on the Section 34 Prohibition and the CCS Guidelines on Lenient Treatment for Undertakings Coming Forward with Information on Cartel Activity Cases (the Leniency Guidelines). Both Guidelines first came into effect in 2006; the Leniency Guidelines 2006 were revised in 2009 (the Leniency Guidelines 2009); and both Guidelines were revised in 2016.
In its media release on 1 November 2016 titled ‘CCS Revises Guidelines to Foster a Level Playing Field for Businesses’, the CCS announced that the revised Guidelines take into account international best practices, and aim to make it easier for businesses, consumers and other stakeholders to understand how the CCS will administer and enforce the Competition Act.5 The revised CCS Guidelines on the Section 34 Prohibition (the Section 34 Guidelines 2016) and the CCS Leniency Guidelines (the Leniency Guidelines 2016) are applicable to all cases where, as of 1 December 2016, the CCS had yet to issue a proposed infringement decision (PID).
The changes in the Leniency Guidelines 2016, which represent a distinct departure from the CCS’s past leniency policy, include:
- a leniency applicants must unconditionally admit to the cartel conduct;
- b leniency applicants must grant an appropriate waiver of confidentiality to the CCS in respect of any jurisdiction where the applicant has also applied for leniency or any other regulatory authority for which it has informed of the conduct; and
- c an undertaking that has initiated or coerced another undertaking to take part in the cartel activity is now eligible for leniency for up to a 50 per cent reduction in the financial penalty.
In addition, the CCS has also, along with its revised Guidelines in 2016, introduced the ‘CCS Practice Statement on the Fast Track Procedure for Section 34 and Section 47 cases’ (the fast-track procedure). Essentially, parties who admit liability for their infringement of the Competition Act will be eligible for a reduction of 10 per cent on the amount of financial penalty that would otherwise be imposed if not for the fast-track procedure. The fast-track procedure is distinct from the CCS’s ability to accept commitments and its leniency policy.6 The fast-track procedure can be initiated by the CCS prior to, or after, a PID but not after an infringement decision has been issued. The CCS envisages that, in general, the fast-track procedure will be initiated by the CCS prior to a PID being issued. Parties under investigation may choose to proactively indicate to the CCS their willingness to engage in a fast-track procedure discussion. The CCS retains a broad margin of discretion in determining whether the case is suitable for the fast-track procedure.
ii COOPERATION WITH OTHER JURISDICTIONS
The Competition Act provides a mechanism by which the CCS may enter into arrangements with foreign competition bodies to, inter alia, provide assistance and furnish to each other information required by the other party for the purpose of performing its functions. The Competition Act also provides that the CCS need not furnish any information to a foreign competition body pursuant to such arrangements unless it requires and obtains an undertaking in writing from that body that it will comply with the terms specified in the requirement.
The CCS’s international and regional cooperation is also guided by the provisions in Singapore’s multilateral and bilateral free trade agreements (FTAs) relating to competition. These provisions commonly require the signatories to cooperate in the development of any new competition measures and exchange information.
The CCS utilises informal cooperation mechanisms to facilitate its work. In particular, the CCS holds frequent dialogues with the Australian Competition and Consumer Commission and New Zealand Competition Commission to facilitate general information sharing between the agencies. The CCS is also a regular participant at international conferences and workshops on cartel enforcement held by the Organisation for Economic Co-operation and Development, the International Competition Network, and Brazil, Russia, India, China and South Africa and Association of Southeast Asian Nations countries.
Most importantly, on a case-by-case basis, the CCS has engaged in both regional and international cooperation with other competition authorities when investigating international cartels with cross-jurisdictional elements. Such international cooperation includes, among others:
- a sharing information to coordinate dawn raids for evidence preservation; and
- b sharing general information such as theories of harm and general categories of information between the competition authorities. Information is shared to the extent that such information is not confidential, and where waivers had been granted to the CCS to discuss the matter with other authorities and vice-versa.
In sharing information, the CCS takes into account information provided by leniency applicants, bearing in mind the possibility of private actions, discovery obligations that a leniency applicant could be subject to and the varying regimes that other potentially relevant jurisdictions operate (i.e., whether civil or criminal regimes are operated).
The CCS has stated that ‘[t]he growing number of cross-border competition cases highlights the importance of cooperation among competition agencies and this is one aspect [the CCS] hope[s] to work on moving forward.’7
A particular change in the Leniency Guidelines 2016, which is likely to facilitate further cooperation with other international agencies, is the appropriate waiver of confidentiality that the CCS requires of leniency applicants in respect of any jurisdiction where the applicant has also applied for leniency or any other regulatory authority for which it has informed of the conduct.
Our understanding of the CCS’s current policy is that it would resist any discovery proceedings of documents in its possession, though this has not been tested in practice.
Out of the 10 cartel infringement decisions issued by the CCS to date, two involved international cartels.8 There has been, at least in one instance, a coordinated dawn raid conducted by the CCS with other competition authorities in the case of international cartels.
III JURISDICTIONAL LIMITATIONS, AFFIRMATIVE DEFENCES AND EXEMPTIONS
The Section 34 Prohibition applies to agreements made outside Singapore, or where parties to the agreement are outside Singapore, so long as the agreement has the object or effect of preventing, restricting or distorting competition within Singapore.9 The CCS recognises that where a single economic entity infringes competition law, liability for an infringement can be attributed to the single economic entity as a whole.10 In parent-subsidiary relationships, where a parent company exerts decisive influence on a subsidiary company’s commercial conduct at the time of an infringement of Section 34 of the Competition Act, liability can be imputed to the parent company even where the parent does not participate directly in the infringement,11 and the CCS has found the parent entity and the legal entity to be jointly and severally liable for the infringement.12
The CCS can issue directions to bring an infringement to an end, which includes modifying or terminating the relevant agreement for parties to cease the cartel conduct. Directions can also include requirements to report back periodically to the CCS on certain matters, or even structural changes to an undertaking’s business. Directions may also be imposed on entities other than the infringing parties. For example, directions may be addressed to a parent company that, though not the actual instigator of the infringement, has a subsidiary that is the immediate party to the infringement.
The CCS can apply to register a direction with a district court in accordance with the Rules of Court (Chapter 322, Rule 5). A district court shall have jurisdiction to enforce any direction, regardless of the monetary amount involved. Any person who fails to comply with a registered direction without reasonable excuse will be in contempt of court, where normal sanctions for contempt of court will apply (i.e., the court may impose a fine or imprisonment).
There are no specific industries that are exempt from cartel enforcement. The Minister for Trade and Industry, acting on a recommendation of the CCS, may exempt, by order, categories of agreements from the Section 34 Prohibition. However, such agreements must contribute to improving production or distribution, or promoting technical or economic progress, in order to meet the criteria for a block exemption.
On 14 July 2006, the Minister for Trade and Industry issued the Competition (Block Exemption for Liner Shipping Agreements) Order, which exempted a category of liner shipping agreements from the Section 34 Prohibition until 31 December 2010. This was subsequently extended until 31 December 2020.
The Third Schedule to the Competition Act further sets out exclusions to the Section 34 Prohibition, including, but not limited to:
- a an agreement made in order to comply with a legal requirement, which is any requirement imposed by or under any written law;
- b specified activities within the supply of postal services, supply of public transport, cargo terminal operations, etc.;
- c vertical agreements;
- d agreements with net economic benefits; and
- e agreements directly related and necessary to implementation of mergers, including ancillary restrictions (e.g., non-compete clauses).
iv LENIENCY PROGRAMMES
The Competition Act does not contain express provisions in respect of a leniency policy. The details of the CCS’s leniency programme are contained in the Leniency Guidelines, of which the latest version, the Leniency Guidelines 2016, will take effect on 1 December 2016. The CCS’s leniency programme is available only for infringements of the Section 34 Prohibition.
Under the Competition Act, there is no personal liability for individuals (including an undertaking’s employees) for infringements of the Competition Act. However, there are general offences under the Competition Act for individuals, such as in relation to obstruction and the provision of false and misleading information, as set out in Section V, infra.
Where there is no conflict of interests, the counsel may represent and act on behalf of both the corporate entity and the individual.
i Total immunity from financial penalties
Full immunity from administrative penalties is available in Singapore. An applicant stands to benefit from total immunity from financial penalties, if the applicant is the first in line to provide the CCS with evidence of the cartel activity before an investigation has commenced, and provided that the CCS does not already have sufficient information to establish the existence of the alleged cartel activity.
All leniency applicants must satisfy the conditions set out below:
- a provide the CCS with all the information, documents and evidence available to him or her regarding the cartel activity immediately. Such information, documents and evidence must provide the CCS with sufficient basis to commence an investigation;
- b grant an appropriate waiver of confidentiality to CCS in respect of any jurisdiction where the applicant has also applied for leniency or any other regulatory authority that he or she has informed of the conduct;
- c unconditionally admit to the conduct for which leniency is sought and detail the extent to which this had an impact in Singapore by preventing, restricting or distorting competition within Singapore;
- d maintain continuous and complete cooperation throughout the investigation and until the conclusion of any action by the CCS arising as a result of the investigation; and
- e refrain from further participation in the cartel activity from the time of disclosure of the cartel activity to the CCS (except as may be directed by the CCS).
ii Reduction of up to 100 per cent in the level of financial penalties
If an applicant does not qualify for total immunity because the CCS has already commenced an investigation, it may still stand to benefit from a reduction in the financial penalty of up to 100 per cent if:
- a the applicant is still the first to provide the CCS with evidence of the cartel activity;
- b the information that is provided before the CCS is sufficient to issue a proposed infringement decision;
- c the information adds significant value to the CCS’s investigation;
- d the applicant has not initiated or coerced another undertaking to take part in the cartel activity; and
- e the applicant also satisfies the general conditions for applicants set out in the Leniency Guidelines 2016.
iii Reduction of up to 50 per cent in the level of financial penalties
If an applicant is not the first in, but provides useful evidence before the CCS issues written notice under Section 68(1) of the Competition Act of its intention to make a decision that the Section 34 Prohibition has been infringed, or the applicant is a coercer or initiator, the applicant may still be granted a reduction of up to 50 per cent of the financial penalty.
Any reduction in the level of the financial penalty under these circumstances is discretionary and the CCS will take into account the stage at which the applicant came forward; the evidence already in the CCS’s possession; and the quality of the information provided.
Two notable departures in the Leniency Guidelines 2016 relative to the Leniency Guidelines 2006 and 2009 are that:
- a the Leniency Guidelines 2016 provide that the leniency applicants must unconditionally admit to the cartel conduct, which was not an express requirement in the Leniency Guidelines 2006 and 2009; and
- b an undertaking that has initiated or coerced another undertaking to take part in the cartel activity is now eligible for leniency applications. However, such an undertaking will not be eligible for total immunity or receive a reduction in the financial penalty of up to 100 per cent notwithstanding that it satisfies the general conditions. The Leniency Guidelines 2009 provide that such an undertaking is not eligible for the leniency programme at all.
iv Marker system
The CCS provides a marker system for ‘first-in’ leniency applications. If a first-in applicant is not able to provide the CCS with all the evidence relating to the suspected infringement available to it at the time of the application, the applicant may apply for a marker to secure his or her position in the leniency queue. The grant of a marker is discretionary. However, its grant is expected to be the norm rather than the exception.
In the Leniency Guidelines 2016, the CCS now requires that an applicant is expected to define the market in which the cartel activity occurred and detail the impact of the conduct on the identified relevant markets in Singapore.
v Grant of conditional immunity or leniency
Another notable amendment in the Leniency Guidelines 2016 is the introduction of conditional immunity or leniency. When the CCS considers that the conditions for conditional immunity or leniency have been met, it will issue a letter to the applicant confirming the grant of conditional immunity or leniency. The letter will state the conditions and continuing obligations that the applicant has to meet to maintain its conditional immunity or leniency. Failure to abide with the conditions and obligations may lead to the CCS revoking the grant of conditional immunity or leniency.
vi Leniency plus system
The CCS has a ‘leniency plus’ programme to encourage cartel members cooperating with an investigation by the CCS in one market (the first market) and to report their involvement (if any) in a completely separate cartel activity in another market (the second market).
vii Domestic submissions and domestic discovery
While information such as written submissions and supporting documents provided by any immunity or leniency applicants may also potentially be included in the CCS’s inspection files to which defendants are granted access, it is understood that the CCS does not grant access to files by third parties seeking damages.
There may be a possibility for a third party claimant (pursuing a future claim against an undertaking/defendant based on rights of private action arising out of a CCS infringement decision) to apply in the context of such civil proceedings for:
- a discovery against one or more defendants to a CCS infringement decision (that is, against the undertakings subject to an infringement decision by the CCS, and who were granted access to inspection files by the CCS) to require such defendants to furnish copies of documents taken or copied by these defendants from the CCS’s inspection files; and
- b third-party discovery against the CCS to require the CCS to disclose the documents in its inspection files, or any document withheld from the inspection files, though this has not been tested in practice.
There have not, to date, been any such claims in civil proceedings in Singapore courts under a private right of action by third parties arising from infringement decisions by the CCS, and accordingly, the possibility of civil litigants applying for discovery against infringing undertakings or the CCS (or both) remains untested.
Undertakings participating or which have participated in cartel activities are liable under Section 69 of the Competition Act to a financial penalty. Cartel activities are not criminal offences under the Competition Act.
A financial penalty not exceeding 10 per cent of the turnover of the business of an undertaking in Singapore for each year of infringement may be imposed for a maximum period of three years where there is an intentional or negligent infringement of the Section 34 Prohibition. The CCS Guidelines on the Appropriate Amount to Penalty 2016 provide that the CCS will calculate the financial penalty based on an undertaking’s relevant turnover, which will be the turnover for the financial year preceding the date when an undertaking’s participation in an infringement ends. It is also provided that the CCS will adopt a six-step approach to determine the financial penalty amount that will take into account factors such as adjustments for immunity, leniency reductions or fast-track procedure discounts.13
The CCS’s methodology for setting the appropriate amount of the penalty is as follows:
- a step one: calculation of the base penalty having regard to the seriousness of the infringement (expressed as a percentage rate) and the turnover of the business of the undertaking in Singapore for the relevant product and relevant geographic markets affected by the infringement in the undertaking’s last business year;
- b step two: adjustment for the duration of the infringement;
- c step three: adjustment for other relevant factors (e.g., deterrent value);
- d step four: adjustment for aggravating or mitigating factors;
- e step five: adjustment if the statutory maximum penalty under Section 69(4) of the Competition Act is exceeded; and
- f step six: adjustment for immunity, leniency reductions or fast-track procedure discounts.
Under the Competition Act, there is no personal liability for individuals (including an undertaking’s employees) for infringements of the Competition Act.
However, individuals should be aware of the general offences under the Competition Act, which also apply to individuals. The general offences under the Competition Act, which are punishable, on conviction, with a fine, imprisonment or both, include:
- a providing information that is false or misleading in a material particular knowingly or recklessly, either to the CCS or to another person such as an employee or legal adviser, knowing that it will be used for the purpose of providing information to the CCS;
- b obstructing, by refusing to give access to, assaulting, hindering or delaying, any agent of the CCS;
- c failing to comply with any requirement imposed under Sections 61A, 63, 64 or 65 of the Competition Act (which set out the CCS’s formal powers of investigation), including refusal to provide any required document or information, unless such compliance is reasonably not practicable or a reasonable excuse for failure to comply can be provided; and
- d intentionally or recklessly destroying or otherwise disposing of or falsifying or concealing a document of which production has been required under Sections 61A, 63, 64 or 65 of the Competition Act, or causing or permitting its destruction, disposal, falsification or concealment.
VI ‘DAY ONE’ RESPONSE
The CCS has the power to launch a surprise investigation on suspected anticompetitive practices and enter any premises in connection with such an investigation.
Under the Competition Act, the CCS has powers to:
- a require the production of specified documents or specified information;
- b enter premises without a warrant; and
- c enter and search premises with a warrant.
The CCS has the powers to raid domestic premises if they are used in connection with the affairs of an undertaking or documents relating to the affairs of an undertaking are kept there.
The investigating officer14 is not entitled to: use force against any person; examine or copy documents that are not relevant to the purpose of the dawn raid; or examine or copy documents that are marked as legally privileged.
i Compliance with the dawn raid
During a dawn raid, the in-house counsel department should send out an email informing employees of the raid and instructing employees to cooperate with the investigating officers.
The in-house counsel department should also emphasise to employees that there must be no deletion, destruction or concealment of documents or data and that employees should not inform any third parties about the dawn raid.
See Section V, supra, for offences that are punishable with a fine not exceeding S$10,000 or to imprisonment for a term not exceeding 12 months or to both.
Vii PRIVATE ENFORCEMENT
The right of private action for infringements of the prohibitions in the Competition Act is enshrined in the Competition Act. Unlike jurisdictions such as the United States and Australia,15 the right of private action in Singapore exists by way of a follow-on claim, which precludes independent stand-alone action by claimants.
The quantum of damages that an individual aggrieved party seeks would affect the economic incentive to sue where the expected benefits are weighed against the costs of commencing a civil lawsuit. A collective redress mechanism thus seeks to address the misalignment of incentives by enabling aggrieved third parties to join claims with others to pursue damages for harm suffered through competition law infringements, where the cost of acting individually would have otherwise acted as a deterrent.
The class action regime does not exist in Singapore and the only process available for collective redress is through a representative action. The procedure for representative action is governed by Order 15, Rule 12 of the Rules of Court,16 which enables a representative party to bring a claim on behalf of all others having the ‘same interest’ in the proceedings.
In the context of loss arising from a competition law violation, the calculation of loss or damage suffered often involves a complex exercise in adducing economic evidence.17 The amount of quantitative loss largely depends on factors such as the price elasticity of the demand and the information available on observed movements in prices. As precise quantification is extremely difficult, this leaves an estimation of damages as the next best alternative.
Where economic evidence is crucial to proof of quantum of damages, evidence law in Singapore admits the opinion of an expert witness in order to assist the court in reaching a proper conclusion on a matter that requires the application of special skill or knowledge.18
Under Singapore’s civil procedure rules, Order 40A, Rule 6 of the Rules of Court provides for a concurrent expert evidence procedure that allows, with the mutual consent of the parties, for expert witnesses to appear as a panel, to give their views on other panel members’ evidence, to question other panel members, and to be cross-examined as part of a panel.
Since the right of private action in Singapore exists by way of a follow-on claim, an admission of liability, a guilty verdict or other administrative findings during the CCS’s investigation and appeal stages may encourage private action.
With limited exceptions, Singapore law currently restricts the funding of proceedings to the parties involved. In 2015, the Singapore High Court confirmed that litigation funding may, in the context of insolvency and under the appropriate circumstances, be permitted in Singapore. To date, there have been no precedents for follow-on claims or any private litigation funding in the context of antitrust in Singapore.
i Limitation period
A private claim for damages arising from an infringement of the Competition Act must be brought within two years from the time that the infringement decision or from the determination of any such appeal, whichever is later.19
VIII CURRENT DEVELOPMENTS
As mentioned in Section I, supra, on 1 November 2016, the CCS announced wide-ranging changes to its Guidelines, such as the Section 34 Guidelines 2016 and the Leniency Guidelines 2016. The revised Guidelines came into effect on 1 December 2016.
1 Daren Shiau and Elsa Chen are partners at Allen & Gledhill LLP.
2 CCS Chief Executive Toh Han Li in the Singapore chapter of Global Competition Review’s The Asia-Pacific Antitrust Review 2014.
3 As disclosed by the CCS Chief Executive Toh Han Li, in an interview with Global Competition Review published on 9 February 2015.
4 See note 3, supra.
5 See CCS, Media Release, ‘CCS Revises Guidelines to Foster a Level Playing Field for Businesses’ (1 November 2016), https://www.ccs.gov.sg/media-and-publications/media-releases/ccs-revises-guidelines-to-foster-a-level-playing-field-for-businesses.
6 See CCS, CCS Guidelines, ‘CCS Practice Statement on the Fast Track Procedure for Section 34 and Section 47 Cases’.
7 CCS Chief Executive Toh Han Li, in the Singapore chapter of Global Competition Review’s The Asia-Pacific Antitrust Review 2015.
8 See CCS 700/002/11, Infringement of the Section 34 Prohibition in relation to the supply of ball and roller bearings and CCS 700/003/11, Infringement of the Section 34 Prohibition in relation to the provision of air freight forwarding services for shipments from Japan to Singapore.
9 See CCS, CCS Guidelines, ‘CCS Guidelines on the Section 34 Prohibition 2016’.
10 Air Freight Forwarders at Paragraph 90.
11 Air Freight Forwarders at Paragraph 92.
12 Ball Bearings at Paragraph 358; Ball Bearings at Paragraph 371; Air Freight Forwarders at Paragraph 525.
13 See CCS, CCS Guidelines, ‘CCS Guidelines on the Appropriate Amount to Penalty 2016’.
14 Refers to any officer of the CCS who is authorised to exercise the power to enter premises for inspection without a warrant under Section 64(1) of the Competition Act.
15 Section 4, United States of America Clayton Antitrust Act, 15U.S.C. Section 15; Section 82 of the Competition and Consumer Act 2010 No. 51 of 1974 of the Commonwealth of Australia.
16 Rules of Court (Rev. Ed. 2014), Section 80 of the Supreme Court of Judicature Act, Chapter 322 of Singapore (Rules of Court).
17 This is illustrated by the Commission Staff Working Document – Practical Guide on Quantifying Harm in Actions for Damages based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, C (2013) 3440.
18 Section 47 of the Evidence Act, Chapter 97 of Singapore.
19 See Section 86(6) of the Competition Act; Paragraph 5.3 of the ‘CCS Guidelines on Enforcement 2016’.