The Dominance and Monopolies Review: Singapore
Competition law in Singapore is governed by the Competition Act (Chapter 50B) (the Act), and is enforced by the Competition and Consumer Commission of Singapore (CCCS).2 Section 47 of the Act, which came into force on 1 January 2006, prohibits any conduct on the part of one or more undertakings, which is an abuse of a dominant position, in any market in Singapore (the Section 47 Prohibition). The CCCS has issued the CCCS Guidelines on the Section 47 Prohibition 2016 (the Section 47 Guidelines),3 which set out further details on its administrative approach to the enforcement of the Section 47 Prohibition.
Potentially abusive conduct will fall for consideration under Section 47 of the Act, where it has (or could potentially have) an effect on any market within Singapore. The Section 47 Prohibition requires a dual finding that the undertaking in question holds a dominant position within a relevant market, and that it has engaged in conduct that constitutes an abuse of that position.
Undertakings in this context include individuals operating as sole proprietorships, as well as companies, partnerships, cooperatives, societies, business chambers, trade associations and non-profit making organisations, regardless of legal and ownership status (foreign or local, government or non-government) and the way in which they are financed. Section 33(4) of the Act provides for agreements entered into or any conduct on the part of the Singapore government, statutory bodies or any person acting on their behalf, to be exempted.
An illustrative list of conduct that could be considered abusive includes:
- predatory behaviour towards competitors;
- limiting production, markets or technical development to the prejudice of consumers;
- applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; and
- making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of the contracts.4
The Section 47 Guidelines state that the Section 47 Prohibition can apply to undertakings in a dominant position outside Singapore that engage in conduct that amounts to an abuse of a dominant position within any market in Singapore.
With reference to the application of the Section 47 Prohibition to state-owned enterprises, the position was considered within SISTIC.5 In SISTIC, the undertaking subject to the investigation was 65 per cent owned by the Singapore Sports Council and 35 per cent indirectly owned by the-then Ministry of Information, Communications and the Arts. Ultimately, the CCCS determined that the exclusion provided within Section 33(4) of the Act was not applicable to SISTIC because, inter alia:
- SISTIC was not part of the government or a statutory body in itself;
- the contractual terms and conditions under the agreements to which the investigation related were commercial in nature; and
- SISTIC was not acting on behalf of the government or a statutory body in relation to the commercial arrangements to which the investigation related.
By operation of the Third Schedule to the Act, the Section 47 Prohibition does not apply to undertakings entrusted with the operation of services of general economic interest, conduct required for compliance with laws, conduct necessary for reasons of public policy and that is also the subject of an order by the Minister for Trade and Industry, and conduct resulting in a merger. The following specified activities are also excluded from the Section 47 Prohibition:
- the supply of ordinary letter and postcard services by a person licensed and regulated under the Postal Services Act;
- the supply of piped potable water;
- the supply of wastewater management services, including the collection, treatment and disposal of wastewater;
- the supply of bus services by a licensed bus operator under the Bus Services Industry Act 2015;
- the supply of rail services by any person licensed and regulated under the Rapid Transit Systems Act;
- cargo terminal operations carried out by a person licensed and regulated under the Maritime and Port Authority of Singapore Act; and
- conduct that relates to the clearing and exchanging of articles undertaken by the Automated Clearing House established under the Banking (Clearing House) Regulations or any related activities of the Singapore Clearing House Association.
The Section 47 Prohibition also does not apply to any agreement or conduct that relates to any goods or services to the extent to which any other written law or code of practice issued under any written law relating to competition gives another regulatory authority jurisdiction in the matter.6 This effectively includes conduct that is subject to:
- the Telecom Competition Code, enforced by the Infocomm Media Development Authority (IMDA);7
- the Media Market Conduct Code, enforced by the IMDA;8
- competition provisions under the Electricity Act, enforced by the Energy Market Authority (EMA);
- competition provisions under the Gas Act, enforced by the EMA; and
- the Airport Competition Code 2009, enforced by the Civil Aviation Authority of Singapore.9
Year in review
In 2020, the CCCS initiated investigations into the alleged refusal by certain leading online food delivery providers to supply online food delivery services to a competing virtual kitchen operator, Smart City Kitchens (SCK). SCK does not operate its own online food delivery services and relies on online food delivery providers to fulfil the orders of the food and beverage (F&B) operators using SCK kitchens. The investigation was closed after the CCCS observed that the food delivery providers in question began to supply online food delivery services to the F&B operators using SCK's virtual kitchens, and that the virtual kitchen sector remains dynamic. However, the CCCS indicated it will continue to monitor the industry.10
In 2020, the CCCS also announced a public consultation on proposed changes to its various guidelines on the Act, which includes the Section 47 Guidelines.11 The key proposed changes to the Section 47 Guidelines seek to provide greater clarity to businesses in the assessment of market power and types of potentially abusive conduct on digital platforms, which would align the Section 47 Guidelines with the E-Commerce Platforms Market Study published by the CCCS in 2020.12
Proposed changes include:
- clarifying that in markets characterised by innovation and rapidly changing competition dynamics, the CCCS may consider determinants of competition other than market shares, such as barriers to entry and degree of innovation;
- clarifying the indicators that can be used to measure market share in the context of e-commerce;
- setting out that factors affecting barriers to entry include limited access to key inputs such as data, network effects, consumption synergies and multi-homing; and
- clarifying that refusal by dominant undertakings to provide access to key inputs could constitute an abuse of dominance.
Market definition and market power
The concept of dominance in Singapore is considered equivalent to an undertaking having substantial market power. Substantial market power, in turn, arises where an undertaking does not face sufficiently strong competitive pressure and can be thought of as the ability to profitably sustain prices above competitive levels, or to restrict output or quality below competitive levels.13
The first step in the assessment of whether an undertaking holds a dominant position is for the CCCS to consider the relevant market. In doing this, the CCCS adopts the use of a hypothetical monopolist test to define markets conceptually. The test aims to identify products that buyers consider substitutable and then identify undertakings that can supply the focal product and its substitutes. In practical terms, the CCCS considers a number of demand-side considerations (including switching costs, patterns in price changes, own or cross-price elasticities and product characteristics, among other factors) and supply-side considerations (including the ease of supply-side substitution, evidence of existing capacity and buyer preferences, among other factors). The CCCS will also consider its own earlier decided cases (if any are relevant to the case at hand) and market definition assessments in overseas jurisdictions (where these may be relevant in light of the unique market circumstances in, and appropriate market definition for, Singapore).
Turning to the assessment of market power within the relevant market, once defined, the Section 47 Guidelines state that there are no market-share thresholds for determining dominance under the Section 47 Prohibition. Notwithstanding this, the Section 47 Guidelines also note that, as a starting point, the CCCS will generally consider a market share in excess of 60 per cent as a likely indication that an undertaking is dominant in the relevant market. However, the Section 47 Guidelines include a caveat that dominance can be established at lower market shares, depending on an assessment of all relevant factors. Moving from this starting point, the CCCS will conduct a detailed assessment of:
- existing competitors: the CCCS assesses the competitors to whom buyers might switch if the alleged dominant undertaking sustained prices above competitive levels. Due consideration is also given to the positions of other undertakings operating in the same market and how market shares have changed over time. The CCCS also includes in its assessment factors such as barriers to expansion, the degree of innovation, product differentiation, the responsiveness of buyers to price increases and the price responsiveness of competitors;
- potential competitors: the CCCS notes that entry barriers are important in assessing the degree of competitive constraint posed by potential competition, which will in turn inform the assessment of whether an undertaking would have the ability to profitably sustain prices above competitive levels. In the Section 47 Guidelines, the CCCS indicates that such assessments require consideration of sunk costs, access to key inputs and distribution outlets, regulation, economies of scale, network effects and potential exclusionary behaviour by incumbents; and
- other factors, such as powerful buyers and economic regulation: the CCCS considers that a buyer's bargaining strength is affected by the buyer's knowledge of alternative supply sources, opportunities to self-sponsor or establish a procurement auction or competitive tenders, as well as whether the buyer is important to the seller. These factors again may influence whether an undertaking is effectively in a position to exercise market power.
Ultimately, the CCCS's consideration of whether a dominant position is held will require an objective assessment of all of the above criteria (and any other relevant facts and circumstances).
The Section 47 Prohibition also extends to abuses of collective dominant positions, which may be held when two or more legally independent undertakings present themselves or act together in a particular market as a collective entity. The CCCS considers that undertakings holding a collective dominant position are able to act largely independently of their competitors, customers and consumers. The CCCS will consider whether there are factors linking the undertakings together in its assessment. Once the CCCS establishes that the collective entity holds a dominant position, it will assess whether there has been an abuse of the collective dominant position.
The test for abusive conduct was set out by the Singapore Competition Appeal Board (CAB) in its hearing of the appeal arising from SISTIC. Specifically, the CAB held that 'an abuse will be established where a competition authority demonstrates that a practice has, or [is] likely to have, an adverse effect on the process of competition'. In making this assessment, the CCCS conducts an economic effects-based assessment that will generally be centred on the degree to which the conduct in question forecloses (or has the potential to foreclose) the competitors of the dominant undertaking from being able to compete effectively in the relevant market. At present, there are no types of arrangements or conduct that are considered to constitute abusive conduct on a per se, or restriction by object, basis.
Where an undertaking can advance an objective commercial justification for its conduct, this will be taken into account in the CCCS's assessment, and may constitute a defence. However, the dominant undertaking is still required to demonstrate that it has behaved in a proportionate manner and should not take more restrictive measures than necessary.
With respect to intellectual property rights, legitimate exercise of these, even by a dominant undertaking, will not generally be regarded as an abuse. The CCCS cautions that the way in which an intellectual property right is exercised may give rise to concerns in relation to infringing the Section 47 Prohibition if, for instance, it is used to leverage market power from one market to another.
ii Exclusionary abuses
It is clear that exclusionary conduct is the primary conduct that the CCCS will investigate as potentially amounting to an abuse of dominance. To date, exclusive contracting by dominant undertakings has been a common feature in the cases pursued by the CCCS. However, the Section 47 Guidelines contemplate that the following types of conduct potentially amount to an abuse of dominance, depending on all the facts and circumstances:
- predatory behaviour;
- loyalty-inducing discounts or rebates;
- price discrimination;
- margin squeeze;
- refusal to supply access to an essential facility or good; and
- exclusive contracting.
The above list is not exhaustive, and the CCCS would not be restricted from finding an abuse that arises from any other form of exclusionary conduct.
Discrimination is not identified in the Section 47 Guidelines as an abusive practice in and of itself, but instead could constitute an abuse insofar as it results in an exclusionary or foreclosure effect. For example, a dominant undertaking providing discriminatory access pricing to an essential facility (favouring its own affiliates in a downstream market) could give rise to foreclosure concerns that may amount to abusive conduct.
iv Exploitative abuses
The Section 47 Guidelines are silent as to whether exploitative abuses can constitute the abuse of a dominant position. However, it is noteworthy that the Section 47 Prohibition makes no reference to unfair prices or unfair trading conditions (unlike Article 102 of the Treaty on the Functioning of the European Union on which the Section 47 Prohibition was modelled). In other words, references to unfair prices and trading terms were specifically removed (and replaced instead with an explicit reference to 'predatory behaviour towards competitors') when the Section 47 Prohibition was drafted.
It is also noteworthy that the CCCS has not publicly pursued any Section 47 cases involving purely exploitative conduct, and has also previously made public statements that it is not within the CCCS's purview to oversee or regulate prices.
Remedies and sanctions
Where the CCCS has determined that the Section 47 Prohibition has been infringed, it has the ability to issue directions as it considers appropriate to bring the infringement to an end, or to remedy, mitigate or eliminate any adverse effects of the infringement, and to prevent the recurrence of the infringement.14 These directions can include prohibitory conduct remedies, affirmative conduct remedies, structural remedies or financial penalties, or a combination of these.
The CCCS calculates financial penalties in accordance with the CCCS Guidelines on the Appropriate Amount of Penalty in Competition Cases 2016,15 which specify an approach taking into consideration the relevant turnover of the undertaking, the seriousness of the infringement, the duration of the infringement and mitigating or aggravating factors. The ultimate financial penalty imposed may not exceed 10 per cent of the turnover of the business of an undertaking in Singapore, for each year of infringement, up to a maximum period of three years.
ii Behavioural remedies
During an investigation, where the CCCS has reasonable grounds for suspecting that the Section 47 Prohibition has been infringed, and where the CCCS considers that it is necessary for it to act as a matter of urgency for the purpose of preventing serious, irreparable damage to a particular person or category of persons, or protecting the public interest, it may issue interim directions.16 While the nature of such directions are not specified within the Act explicitly, the CCCS would have the broad discretion to issue interim behavioural directions similar to those that can be imposed upon an infringement finding, such as directions to an undertaking to, inter alia:
- modify or cease its conduct;
- enter such legally enforceable agreements as may be specified by the CCCS and designed to prevent or lessen the anticompetitive effects that have arisen; and
- provide a performance bond, guarantee or other form of security on such terms and conditions as the CCCS may determine.
iii Structural remedies
Where an infringement of the Section 47 Prohibition is found, the CCCS has the ability to issue directions requiring structural changes, such as the disposal of such operations, assets or shares of the undertaking in such a manner as may be specified by the CCCS.
The CCCS has the power to conduct an investigation if there are reasonable grounds for suspecting that the Section 47 Prohibition has been infringed.17 These investigations are often triggered by third-party complaints, through completion of the complaint form available on the CCCS website. Thereafter, the CCCS typically seeks to gather information through the use of requests for information, or through dawn raids.
Section 63 of the Act enables the CCCS to require that parties provide information in connection with the investigation. The information request is served on the relevant parties by way of a written notice. The CCCS typically issues multiple requests for information, with specified deadlines for providing responses, in the course of an investigation. In terms of dawn raids, the CCCS has the power to enter into any premises to carry out investigations, with or without warrants. On the premises, the CCCS has the power to require the production of documents relevant to the investigation and an explanation of such documents, and to take steps to preserve documents, among other things.
During the course of an investigation, the investigated parties have the right to consult legal advisers. In the case of a dawn raid, the CCCS investigating officers are able to exercise judgement, to the extent that they consider it reasonable, to allow the investigated party's legal advisers to arrive at the premises within a stipulated time period.
As mentioned above, the CCCS has the power to impose interim measures where it has not completed, but has commenced, its investigation and considers it necessary to act urgently. The CCCS has not imposed interim directions in any public case involving a suspected breach of the Section 47 Prohibition to date, but has done so in respect of investigations relating to suspected breaches of other prohibitions.
The CCCS generally cooperates with agencies in other jurisdictions on cases of an international nature. Historically, the CCCS has done so for cross-border cartel and merger cases in particular. Given the Singapore-centric nature of the abuse of dominance cases published by the CCCS so far, it is less likely that it has consulted other agencies on these specific cases. Nonetheless, should multi-jurisdictional abuse of dominance cases arise, the CCCS could be expected to follow its general consultative approach.
Thus far, investigations into infringements of the Section 47 Prohibition have most often been informally settled through the CCCS accepting voluntary commitments offered by the parties under investigation. The CCCS typically conducts a public consultation on the proposed commitments, to seek feedback on whether the likely proposed commitments will address the identified competitive harm, and any other feedback.
The CCCS does not have an indicative timeline for concluding its investigations into suspected breaches of the Section 47 Prohibition, unlike its indicative timelines for the assessment of notified mergers. Notwithstanding this, in December 2016, the CCCS introduced a 'fast track' procedure for investigations into infringements of the Section 47 Prohibition in the CCCS Practice Statement on the Fast Track Procedure for Section 34 and Section 47 Cases.18 Under this procedure, parties that admit liability for infringing the Section 47 Prohibition can be eligible for a reduction in financial penalties to which they might otherwise be subject. The CCCS has indicated that it will use its discretion as to whether or not a case may benefit from this procedure, on the basis of factors including the predicted margin for argument and extent to which facts may be contested. Should the CCCS determine that the case is suitable for this procedure, it will initiate the process by engaging the parties, inviting them to respond within two weeks on whether they are interested in the offer. The parties are still able to appeal the final decision made by the CCCS should they accept the offer.
While there is no obligation on parties to notify the CCCS of conduct that may amount to an abuse of dominance, parties can apply to the CCCS for a notification for guidance or decision.19 The guidance provided by the CCCS may indicate whether the conduct in question would likely infringe the Section 47 Prohibition. In the case of a decision, the CCCS indicates whether the conduct has infringed the Section 47 Prohibition. A difference between guidance and a decision is that a decision cannot be reopened on the basis of a complaint by a third party.
Pursuant to Sections 71 and 72 of the Act, a decision of the CCCS finding an infringement of the Section 47 Prohibition, or a decision to impose interim measures, may be appealed to the CAB. The CAB may impose, revoke or vary a direction as long as the direction is one that the CCCS could have given. The decision by the CAB may be further appealed to the High Court and then to the Court of Appeal (but these subsequent appeals are limited to points of law, or appeals related specifically to the quantum of the financial penalty imposed).
The only appeal brought to the CAB for an abuse of dominance case to date in Singapore was http://www.SISTIC.com Pte Ltd's appeal of the SISTIC case in 2010.20 After hearing the appeal, the CAB issued its decision in 2012 upholding the CCCS's finding of liability, but at the same time ordering a reduction in the penalty imposed (from S$989,000 levied by the CCCS to S$769,000). This reduction was ordered on the basis that:
- the CAB disagreed with the CCCS's assessment that the involvement of the directors or members of senior management in the matter ought to be an aggravating factor;
- the CAB determined that SISTIC did entertain genuine uncertainty with regard to whether its conduct constituted an infringement, and accordingly disagreed with the CCCS's decision to aggregate the assessed penalty on the basis that the infringement had been committed 'intentionally, not just negligently'; and
- the CAB considered that an additional mitigating discount ought to be applied on the basis that SISTIC cooperated with the CCCS, and due to SISTIC's genuine uncertainty with regard to the legality of the conduct in question.
Further details on the CCCS's powers of investigation and enforcement are set out within the CCCS Guidelines on the Powers of Investigation in Competition Cases 2016,21 and within the CCCS Guidelines on Enforcement of Competition Cases 2016,22 which will be renamed the CCCS Guidelines on Remedies, Directions and Penalties.23
The right of private action for general competition law infringements in Singapore is set out in Section 86 of the Act. Unlike in jurisdictions such as the United States and Australia, the right of private action in Singapore exists by way of a follow-on claim, which precludes independent stand-alone action by claimants. Specifically, the right of private action only arises upon the issuance of a final determination that an undertaking has infringed the Section 47 Prohibition.24
As a matter of procedure, a final determination of infringement of the Act refers to an infringement decision of the CCCS, the CAB, Singapore High Court or Singapore Court of Appeal that is not subject to any right of further appeal. Private actions must be brought within two years of the final determination of the CCCS, the CAB, Singapore High Court or Singapore Court of Appeal (as the case may be).
Section 86 of the Act requires the claimant to have suffered loss or damage directly as a result of an infringement. While currently untested in the courts, the term 'directly' is generally understood to limit claims to direct purchasers (rather than end-purchasers, where there is an intermediate purchaser or purchasers).
In dealing with any private action claims, the court has the ability to grant relief by way of injunction or declaration, damages or such other relief as the court thinks fit.25 It is untested in Singapore whether damages claims would be compensatory, restitutionary or punitive (or could incorporate considerations of each).
At present, only representative proceedings are permissible in Singapore (rather than other forms of collective litigation, such as class actions), and such representative actions require the permission of the court to be brought. Generally, third-party funding of litigation is not prohibited outside the scope of international arbitration matters (or to a limited degree in insolvency cases).
To date, there have not been any private actions for damages initiated (either completed or pending) in Singapore as follow-on claims related to the breach of the Section 47 Prohibition.
The CCCS, like authorities in many other jurisdictions, is taking an active interest in the implications of data issues and the digital economy on competition policy. For the CCCS, the interest in this area stems from a wider initiative in the Singapore government to adopt data analytics and data sharing.26 In an interview for the April 2018 edition of the Asia-Pacific Competition Update (a publication by the OECD/Korea Policy Centre), Toh Han Li, the chief executive of the CCCS, noted that 'with the rise of the digital economy, more sophisticated business models have emerged and CCCS is seeing an increase in the complexity of the cases handled'.27 In September 2020, the CCCS issued its findings and recommendations for its market study on e-commerce platforms. The market study focused on understanding the business models and operating environment of e-commerce platforms that compete or potentially compete across multiple market segments offering distinct products or services. The CCCS also identified potential competition and consumer issues that may arise.28
The CCCS collaborated with the Intellectual Property Office of Singapore and the Personal Data Protection Commission (PDPC) to publish a paper on data as an engine for growth in 2017.29 In this paper, two issues with respect to market power in data-driven industries were considered. The first was whether data could be replicated reasonably by competitors; the second was whether the data could result in a significant competitive advantage. The paper noted that market power would generally be strengthened by network effects but could be weakened by multi-homing, ease of access, data substitutability and market dynamics. Types of abuse considered in this paper are discriminatory access (including through vertical integration), exclusive dealing and refusal to supply. The CCCS published a discussion paper on data portability, in conjunction with Singapore's PDPC, in February 2019.30 A potential abuse of dominance issue that the CCCS has outlined in the paper is the refusal to supply data, where data may be considered an essential facility, and more scrutiny on data-driven companies could be expected moving forward.
The CCCS's recently expanded jurisdiction, as of April 2018, now includes consumer issues as enforced under the Consumer Protection (Fair Trading) Act. Accordingly, the CCCS is expected to focus on investigations in consumer-focused industries. In 2018, the CCCS stated that its sectors of interest were transportation, logistics, hospitality and wholesale retail and trade.31
1 Daren Shiau, Elsa Chen and Scott Clements are partners at Allen & Gledhill LLP.
4 As set out in Section 47(2) of the Competition Act (the Act).
6 As set out in Paragraph 5 of the Third Schedule to the Act.
7 In 2019, the Infocomm Media Development Authority (IMDA) issued a public consultation to seek the views of members of the public and the industry (first public consultation) on a proposed converged competition code for the telecommunication and media markets that would merge the Telecom Competition Code and the Media Market Conduct Code. In January 2021, the IMDA issued a second public consultation to address the responses received in the first public consultation and to consult on the converged competition code that the IMDA had since drafted. At the time of writing, the IMDA had not addressed the responses received in the second public consultation.
13 As set out in Paragraph 3.3 of the Section 47 Guidelines.
14 As set out in Section 69 of the Act.
16 As set out in Section 67 of the Act.
17 As set out in Section 62 of the Act.
19 As set out in Sections 50 to 53 of the Act.
20 'CAB Upholds CCS' Decision Against SISTIC for Abusing its Dominance in the Open Ticketing Services Market', http://www.cccs.gov.sg/media-and-consultation/newsroom/media-releases/cab-upholds-ccs-decision-against-sistic-for-abusing-its-dominance-in-the-open-ticketing-services-market.
23 The Competition and Consumer Commission of Singapore (CCCS) is proposing to make changes to the CCCS Guidelines on Remedies, Directions and Penalties. The CCCS sought views on these proposed changes from the public in a public consultation issued on 10 September 2020. See http://www.cccs.gov.sg/media-and-consultation/newsroom/media-releases/cccs-consults-on-proposed-changes-to-competition-guidelines.
24 As set out in Section 86(2)(a) of the Act.
25 As set out in Section 86(8) of the Act.
26 'Data: Engine for Growth – Implications for Competition Law, Personal Data Protection, and Intellectual Property Rights', http://www.cccs.gov.sg/resources/publications/occasional-research-papers/data-engine-for-growth.
29 See footnote 26.
30 'Discussion Paper on Data Portability: Personal Data Protection Commission In collaboration with Competition and Consumer Commission of Singapore', http://www.cccs.gov.sg/resources/publications/occasional-research-papers/pdpc-cccs-data-portability.