Notification for Guidance/Decision in Relation to Agreement or Conduct
What are Notifications for Guidance or Decision?
The notification system allows undertakings to apply to the CCS for either:
i) Guidance as to whether, in the CCS' view, their agreement or conduct is likely to infringe the Competition Act ("the Act") as it is anti-competitive, or
ii) A decision as to whether their agreement or conduct does in fact infringe the Act.
When should a notification be made?
It is not mandatory for undertakings to notify their agreements or conduct, but they may do so if they have serious concerns as to whether they are infringing the Act's prohibitions. Parties may also find it useful to take independent legal advice on these matters.
The CCS will not entertain applications relating to proposed agreements or conduct, that have not been concluded/taken place.
A fee is payable with the notification (see below). Where applications are lodged in respect of agreements or conduct that fail to raise any real concerns of possible infringement, the CCS has the discretion to determine the application by not giving guidance or making a decision. The fee will usually be refunded in such circumstances.
Is it Better to Apply for Guidance or for a Decision?
In the case of guidance, the application will generally be treated as confidential, although the CCS may, with a view to better disposing of the application, consult with the non-applicant parties to the notified agreement or conduct. In the event that the CCS issues guidance that infringement is unlikely (i.e. favourable guidance), the CCS will take no further action in respect of the notified agreement or conduct, save only in the following circumstances:
i) the CCS has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
ii) the CCS has reasonable grounds for suspecting that the information on which it based its guidance was incomplete, false or misleading in a material particular;
iii) a complaint about the agreement or conduct has been made to the CCS (in the case of agreements, the complaint is to come from someone who is not a party to the agreement); or
iv) (in the case of agreements) one of the parties to the agreement applies to the CCS for a decision in respect of the agreement, under section 44 of the Act.
In the case of decisions, once the CCS issues a decision that there is no infringement (i.e. a favourable decision), the CCS will to take no further action in respect of the notified agreement or conduct, save only in the following circumstances:
i) the CCS has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
ii) the CCS has reasonable grounds for suspecting that the information on which it based its decision was incomplete, false or misleading in a material particular.
In other words, there are fewer instances under which the CCS is allowed to take action after a favourable decision, as opposed to after favourable guidance. However, applicants should note that applications for decision are not afforded the same level of confidentiality as applications for guidance. In particular, once an application for decision is made, a summary of the application's details (crafted by the applicant) must be entered on the register for public inspection.
The filing fee is expected to be higher for decisions than guidance (see below), reflecting the greater amount of effort required to determine the outcome.
How do I Apply for Guidance or Decision?
Applications for guidance or decision are made by filling out Form 1 and submitting it to the CCS, together with the prescribed initial fee*. Where requested by the CCS, the applicant must also fill out and submit Form 2, after having submitted Form 1. The information in Form 2 may not be required in all cases. As such, so as not to place any undue burdens on the applicant, the CCS will ask for Form 2 only if it is needed for determining the application. Of course, applicants are free to submit Form 2 on their own accord, together with Form 1, as this will speed up the process in cases where it can be foreseen that Form 2 will eventually be required.
In cases where Form 2 is submitted, the CCS may, within 2 months of receiving Form 2, specify a time frame within which the applicant is to pay the CCS a further fee, over and above that which was paid with the initial filing. This further fee will be levied in cases where the CCS is of the opinion that the application requires significant analysis. The applicant may choose not to pay the further fee, in which case the CCS may then determine the application by not giving guidance or a decision.
*Prescribed Fee
|
|
Initial Fee |
Further Fee |
|
Notification for Guidance |
S$3,000 |
S$20,000 |
|
Notification for Decision |
S$5,000 |
S$40,000 |
Applicants should refer to the CCS Guidelines on Filing Notifications for Guidance or Decision with respect to the Section 34 Prohibition and Section 47 Prohibition , as well as to the Competition Regulations, where greater detail on how to fill out Form 1 or Form 2 can be found. (To access the forms, please click on Form 1 or Form 2 in orange highlight)
Completed form(s) must be submitted to CCS on weekdays from 0900 hrs to 1700 hrs (except on Public Holidays), in both hard and soft copies (stored in CD-Rom), to the following address:
Mail to:
Application for Guidance/Decision*
Competition Commission of Singapore
5 Maxwell Road, Tower Block
#13-01 MND Complex
Singapore 069110
(* Please state accordingly)
The applicant is required to take all reasonable steps to notify all other parties to the agreement or conduct about the application. This notification can be given even before the notification is filed with the CCS, and must at the very latest be given within 7 working days from the date of filing of the notification.
The Importance of Complying with Filing Requirements
Applicants should ensure that the Form 1 they submit is complete and accompanied by all supporting documents and the appropriate initial fee. Applicants should also ensure that Form 2 is duly furnished when requested and that it is complete and accompanied by all supporting documents. Where Form 2 is requested, the CCS will give the applicant a reasonable time frame to file it. Likewise, if the applicant omits to include any information or supporting documents required by Form 1 or (where applicable) Form 2, the CCS will give the applicant a reasonable time frame to revert with the outstanding information or documents. Failure to revert with Form 2 or with the outstanding information/documents within the time frame (and any extensions that may be granted) is likely to result in forfeiture of the fee as well as in the CCS treating the notification as not having been given. The latter consequence has important implications in respect of notified agreements, as it is only upon the giving of the notification that the immunity against financial penalty conferred by section 43(4) (in the case of guidance) or section 44(3) (in the case of decisions) commences.
Similarly, the CCS may refuse to accept an application if it is not substantially in the prescribed form or if it does not comply with any requirement under the Act or the regulations. The CCS’ refusal to accept the application also means that the application is treated as not having been made.
In the course of the application, the CCS might also request for further information, over and above that required in Form 1 or Form 2, where this is needed for determining the application. Failure to furnish the information may result in the CCS exercising its discretion to determine the application by not giving the guidance or decision sought.
For more details, please refer to the CCS Guidelines on Filing Notifications for Guidance or Decision with respect to the Section 34 Prohibition and Section 47 Prohibition .