Reglamento de Procedimiento de la Comisión de Competencia de 2009, Mauricio

Compet t on Comm ss on Rules of Procedure 2009

GN 161/2009 Government Gazette of Maur t us No. 109 of 12 December 2009

THE COMPETITION ACT 2007

Not ce s hereby g ven that the Compet t on Comm ss on has, pursuant to sect on 38 of the Compet t on Act 2007,

made the follow ng procedural rules -

ARRANGE ENT OF SECTIONS

PART I: PRELIMINARY

1. Short title

2. Interpretation

3. Application and effect of rules

PART II: INITIATION OF PROCEEDINGS

4. Duty of the Executive Director

5. Enquiry by the Executive Director

6. Complaint

7. Application for guidance

PART III: INVESTIGATION BY EXECUTIVE DIRECTOR

8. Prioritisation

9. Time Table

10. Production of documents or information

11. Particulars of notice

12. Entry and Search

13. Report on interim measures

14. Provisional finding

15. Final findings and report

16. Remedies

___________

17. Procedure for other matters

PART IV: PROCEEDINGS BEFORE THE COMMISSION

18. The Secretary

19. eetings of the Commission

20. Direction on Interim easures

21. Duration of Interim easures

22. Requirement for hearing

23. Conduct of hearing

24. Public access to hearing

25. Permitting other persons to take part in proceedings

26. Submissions or arguments before the Commission

27. Proceedings in absence of party

28. Undertakings

29. Final Direction

PART V: DISCLOSURE AND CONFIDENTIALITY

30. Disclosure of information

31. Confidentiality

32. Notice of Appeal

33. Decision on Appeal

PART I: PRELIMINARY

1. Short t tle

These rules may be cited as the Compet t on Comm ss on Rules of Procedure 2009.

2. Interpretat on

(1) In these rules -

"Act" means the Competition Act 2007;

"auxiliary party" means a party who has an interest in the matter and has provided

evidence to the Commission or to the Executive Director and includes a complainant;

"complaint" means a complaint made under rule 6;

"hearing" means hearing proceedings held by the Commission by virtue of sections 55

and 56 of the Act;

"main party" means the party who is subject of an investigation;

"party" includes a main party and an auxiliary party;

"person" and words applied to a person or individual shall apply to and include a group

of persons, whether corporate or unincorporate;

"provisional finding" means a finding contained in a preliminary report;

"public holiday" means a day prescribed as such in the Public Holidays Act.

(2) (a) Words importing the masculine shall include the feminine and the neuter.

(b) Words in the singular shall include the plural.

(c) Words in the plural shall include the singular.

(d) References to the whole shall include references to a part.

(3) Where a word or expression is defined or explained in the Act, the word or

expression shall have the same meaning in these rules.

(4) Effect shall be given to these rules according to its true intent, meaning and spirit.

(5) Where a word or expression is defined in these rules, the definition shall with

necessary modification extend to any grammatical variation or cognate

expression of that word or expression.

(6) In computing time for the purposes of these rules, recourse shall be had to

section 38 of the Interpretation and General Clauses Act.

(7) Any order, warrant or process may be issued, served or executed and any

search or seizure may be carried out or made on any day, whether a public

holiday or not, and at any hour of the day or night.

(8) Where these rules provide that a person shall take an oath, that person may

make an affirmation or declaration in lieu of the oath.

Amended by [GN No. 202 of 2011]

3. Appl cat on and effect of the rules

(1) These rules shall apply in relation to a merger, a monopoly situation, collusive

agreements and any other restrictive business practice falling under the Act.

(2) These rules, which concern the functions of the Executive Director and the

Commission, are binding on -

(a) the Commissioners;

(b) the Executive Director;

(c) any staff of the Commission; and

(d) any person or enterprise who or which is an auxiliary party or a main party.

(3) If at any time the Executive Director or Commission encounters a situation which

is not provided for in these rules, he or it shall determine the procedure to be

adopted.

(4) Any person to whom the Executive Director has delegated his powers pursuant

to section 31 of the Act may exercise any of the powers conferred on the

Executive Director in these rules other than the power to make a finding or a

report.

PART II: INITIATION OF PROCEEDINGS

4. Duty of the Execut ve D rector

The Executive Director shall, subject to section 5(4), investigate or cause to be

investigated what he has reasonable grounds to believe is a restrictive business

practice where:

(a) he has received a complaint that a restrictive business practice may have

occurred or may be occurring or about to occur; or

(b) it has otherwise come to his knowledge that a restrictive business practice

may have occurred or may be occurring or about to occur.

5. Enqu ry by the Execut ve D rector

(1) The Executive Director may make such enquiries as he thinks appropriate:

(a) pursuant to his powers to keep markets in auritius and conditions of

competition in those markets in constant review under section 30(a) of the

Act;

(b) pursuant to his powers to undertake general studies on the effectiveness of

competition in individual sectors of the economy in auritius under section

30(h) of the Act;

(c) in order to satisfy himself that there is reasonable ground to believe that a

restrictive business practice has occurred or is occurring or about to occur;

or

(d) where the Commission requests him to do so in relation to an application

made under section 7.

(2) An enquiry made by the Executive Director may include:

(a) a specific request for information from any enterprise or groups of

enterprises;

(b) an invitation to provide information on any specific matter, case, event or

business agreement or transaction;

(c) an invitation to attend the office of the Executive Director for an interview;

(d) a request for written explanations or otherwise as required for the purposes

of the issue at hand; or

(e) a visit to a locus or site, whether accompanied or not by officers of the

Commission.

(3) The Executive Director shall keep a written record of any such enquiry.

(4) The Executive Director may, where any enterprise is not collaborating or is

delaying unreasonably in relation to an enquiry, consider that state of affairs as

being reasonable grounds for believing that a restrictive business practice has

occurred or is occurring or is about to occur.

6. Compla nt

(1) A complaint shall be lodged with the Executive Director by filling in the form

available on the Commission's website or the business premises of the

Commission.

(2) The lodging of a complaint may be made by email to the address mentioned on

the Commission's website or by physical delivery to the Commission, and

addressed to the Executive Director.

(3) The Executive Director shall respect the anonymity of the complainant, at his

request, where the Executive Director is of the view that the interests of the

complainant would be harmed by the disclosure of his name.

(4) There shall be kept at the Commission a register of complaints which shall be

accessible to the public during office hours of the Commission.

(5) Where, at any time after receipt of a complaint, the Executive Director is satisfied

that the matter raised in the complaint is directly and substantially similar to a

previous complaint, he may consolidate two or more similar complaints, as the

case may be, for consideration.

(6) Within a period to be determined by the Executive Director, which shall in no

case exceed 2 years, he shall:

(a) deal with the complaint by forwarding his report to the Commission where

he has established that a restrictive business practice has occurred or is

occurring or about to occur; or

(b) inform the Commission that there is no restrictive business practice which

has occurred or is occurring or about to occur and issue a notice to that

effect to the complainant.

7. Appl cat on for gu dance

(1) An enterprise may where it wishes to obtain guidance from the Commission

before proceeding with a merger, apply to the Commission for guidance.

(2) An application for guidance under paragraph (1) shall contain -

(a) the name of the applicant;

(b) the business address of the applicant;

(c) a succinct narrative of the effect of the merger;

(d) the signature of any authorized representative of the enterprise;

(e) such other particulars as are relevant to the proposed merger; and

(f) any other information that the commission may deem necessary.

(3) An enterprise may where it wishes to propose an undertaking to the Commission

to address any concern that has arisen, or is likely to arise during an

investigation, apply to the Commission for guidance.

(4) An application for an undertaking guidance under paragraph (3) shall contain -

(a) the name of the applicant;

(b) the business address of the applicant;

(c) a succinct narrative of the alleged contraventions of the Act;

(d) the signature of any authorized representative of the enterprise;

(e) such other particulars as are relevant to the undertaking; and

(f) any other information that the Executive Director may deem

necessary.

(5) Where, at any time after receipt of an application under paragraph (1) and (3),

the Executive Director is satisfied that the matter raised in the application is

directly and substantially similar to a previous application, it may consolidate two

or more similar applications for consideration.

PART III: INVESTIGATION BY EXECUTIVE DIRECTOR

8. Pr or t sat on

Where the Executive Director is in receipt of 2 or more complaints or has already

identified on his own any investigation to be conducted, he may prioritise

investigations.

9. T me Table

(1) The Executive Director shall make arrangements for an administrative timetable

to be drawn up which shall make provision for the major stages of an

investigation.

(2) The major stages of an investigation may include -

(a) gathering information;

(b) examining parties or witnesses;

(c) verifying information;

(d) setting out a statement of issues;

(e) considering responses to a statement of issues;

(f) notifying of provisional findings;

(g) notifying and considering possible remedies;

(h) considering exclusion from disclosure; and

(i) submitting his report to the Commissioners.

(3) The Executive Director may, when drawing up the administrative timetable, have

regard to any comments which the parties involved have submitted to him.

(4) Once the administrative timetable has been drawn up, the Executive Director

shall make such arrangements as he thinks appropriate for it to be notified to all

the parties involved and the Executive Director may provide notification of the

timetable on its website or any other media, he considers appropriate.

(5) The administrative timetable should normally provide that the duration of an

investigation shall not -

(a) in the case of a merger, exceed 6 months;

(b) in the case of any other restrictive business practices, exceed 18 months.

(6) Where at any point during an investigation, the Executive Director has reason to

believe that the administrative timetable will not be met for any reason, he shall

prepare a revised timetable to which the notification requirements contained in

paragraph(4) shall apply.

10. Product on of documents or nformat on

(1) Where the Executive Director exercises his powers of investigation, he may

require any person to produce any book, document, record or article or to provide

specified information in a written statement, which relates to any matter relevant

to the investigation including market share information or a description of a

particular market.

(2) Any request under paragraph (1) shall be exercised by service of a written notice

signed by the Executive Director.

(3) A request under paragraph (1) shall not be limited to any number, and the

Executive Director may require a person to produce further information after

considering the material produced in response to an earlier notice.

(4) A request for information may be made to any person including an enterprise

suspected of breach, its officers (past or present) or any third parties, including a

complainant, supplier, customer, a competitor or any other enterprise.

(5) Where material related to an investigation consists of information stored in a

computer, disc, cassette, or on microfilm, or preserved by any mechanical or

electronic device, the request from the Executive Director shall be taken to

require the person named in the notice to produce or give access to it in a form in

which it can be taken away and in which it is visible and legible.

(6) Where he has requested a person to produce a document, the Executive

Director may -

(a) take copies or extracts from any document produced; or

(b) require the person served with a notice to produce the document (or any

past or present officer or employee of that person) to provide an

explanation of the document produced.

(7) The Executive Director may require information to be compiled and produced if it

is not already in recorded form.

11. Part culars of not ce

(1) A notice under section 10(2) shall -

(a) state the subject matter and purpose of the investigation;

(b) generally describe or specify the document or information, or categories of

documents or information, required;

(c) set out the nature of the offence that may be committed if a person fails to

comply with the notice;

(d) state the time and place at which a document or information must be

produced and the manner and form in which it is to be produced; and

(e) set out the time and place where an oral examination shall be conducted.

(2) A person who provides information to the Executive Director will be given the

opportunity to amend, add to or delete from the written record and will be asked

to sign against the record.

(3) (a) The notice may be delivered personally or sent by registered post to the

last known address of a person.

(b) Service by registered post shall be effected by addressing and posting a

letter containing the document and be presumed to have been effected at

the time when the letter would be delivered in the ordinary course of post.

(c) Service of the notice may also be effected by sending through facsimile

transmission or by electronic mail.

(4) Where the notice is required to be served on a company, société or other

corporate body, it shall be served by leaving it:

(a) at the registered office or principal place of business of the entity; or

(b) in the case of a foreign entity, with a person authorized to accept service of

process on its behalf.

(5) Where the Executive Director is satisfied that the recipient of the order is

avoiding service or that for any other reason it cannot be served in the ordinary

way, he may effect service by an advertisement in any local newspaper.

(6) When setting the appropriate time limit for the production of a document or

information, the Executive Director shall consider, inter alia, the amount and

complexity of the information required, the resources available to the recipient of

the notice and the urgency of the case.

12. Entry and search

(1) Where the Executive Director exercises his powers of investigation, he may enter

and search the premises of any person and take possession of documents or

copies of them with a warrant signed by a agistrate.

(2) Any owner, occupier or person in charge of the premises shall provide the

Executive Director with a properly executed warrant with all reasonable facilities

and assistance in the exercise of his powers.

(3) The Executive Director will cause to be provided to the occupier or his

representative a list of any documents removed from the premises.

(4) Where an original document is removed, it shall, if a request is made, be

returned within a reasonable period, having regard to the complexity of the

document or the investigation unless the document is required for the purposes

of evidence.

(5) Where an original document which has been removed is retained by the

Executive Director, the occupier of the premises or his representative may ask for

and obtain a copy at his own cost.

(6) The Executive Director may take any other step which he feels necessary in

order to preserve a document or prevent interference with it.

(7) The Executive Director may also -

(a) require any person to provide an explanation on any document or to state

where the document may be found;

(b) require any information which is stored in any electronic form and is

accessible from the premises, to be produced in such form in which it can

be taken away and read;

(c) remove from the premises for examination any equipment or article which

relates to any matter relevant to the investigation, such as a computer, a

data storage device or a recording device; or

(d) seize and detain any items on the premises which may be required for the

purposes of evidence.

13. Report on nter m measures

(1) The Executive Director may make a report on interim measures on any matter

that is the subject of an enquiry or investigation -

(a) where there is a risk of serious or irreparable damage to any person; or

(b) to prevent pre-emptive action being taken by an enterprise.

(2) The Executive Director shall state in the report on interim measures, what, in his

opinion, may constitute serious damage, but such opinion shall be based on facts

and will depend upon the circumstances of each case and, in assessing serious

damage, the Executive Director shall consider -

(a) whether a particular person or category of persons may suffer considerable

competitive disadvantage which is likely to have a lasting effect on his

position;

(b) significant financial loss which may occur to a person (to be assessed with

reference to that person's size of business or financial resources as well as

the proportion of the loss in relation to the person's total revenue);

(c) significant damage to the goodwill or reputation of a person;

(d) threat of insolvency; or

(e) any other form of damage, which although less serious, but may still be

irreparable, in so far as it cannot be remedied in later intervention.

14. Prov s onal f nd ng

(1) On the completion of his investigation, the Executive Director may make a

provisional finding which he shall produce as a provisional or preliminary report

which –

(a) he shall notify to all parties to the enquiry or investigation, within 7 days of

the provisional report being finalized;

(b) the notice shall -

(i) describe the provisional findings in clear terms and provide an

explanation of his reasons for the finding;

(ii) invite the parties, within such period being not less than 21 days as

may be specified in the notice, to provide the Executive Director with

reasons in writing as to why such provisional findings should not

become final; and

(iii) not contain any information that the Executive Director considers

should be excluded from the notice having regard to any

confidentiality provisions under any enactment, or any commercially

sensitive information.

(c) any comment on a provisional finding shall be made in writing to the

Executive Director who may hold additional meetings or carry out further

investigation as required to complete his investigation pursuant to any new

information received in the comment.

(d) where any party provides a written comment after the date specified in the

notice, the Executive Director shall not be obliged to take them into

account, unless there are valid reasons for non-compliance with the date

by which the response should have been submitted.

15. F nal f nd ngs and report

(1) Once the Executive Director has had regard to any reasons in writing or oral

evidence submitted or given to him following a notice of a provisional finding, he

shall take his final decision and proceed to make the report final and submit it to

the Commission with his recommendations.

(2) The Executive Director may, for the purpose of preparing his report, send any

material which has been produced back to any person of body so that its

accuracy can be verified.

(3) Any party to whom material has been sent back pursuant to paragraph (2) may

request the Executive Director to exclude it from his report.

(4) The Executive Director may exclude any matter from a report where he

considers that publication of the matter would be inappropriate, and in deciding

what is inappropriate for this purpose, he shall have regard to the confidentiality

provisions under any enactment or any other commercially sensitive information.

(5) Any such exclusion shall not prejudice an enterprise in relation to obtaining any

information it requires to meet the case which has been put against it.

(6) Where the Executive Director submits his report to the Commission, he may -

(a) refer to all the particulars of the complaint;

(b) refer only to some of the particulars of the complaint; or

(c) add particulars to the complaint; or

(d) notify the Commission of any agreement of confidentiality which has been

reached between the complainant and himself.

(7) A copy of the report shall be published on the Commission's website.

16. Remed es

(1) The Executive Director shall have regard to the desirability of giving notice of any

action which he considers may be taken by the Commission for the purpose of

remedying the effects of, or ceasing, a restrictive business practice or any

relevant penalty.

(2) A notice under paragraph (1) of proposed remedies may be contained in the

provisional report but, if it is not, the Executive Director shall notify the parties as

soon as is reasonably practicable after he has notified them of a provisional

finding.

(3) A copy of a notice on remedies shall be published on the Commission's website

and in such other media as the Executive Director may consider appropriate.

(4) A notice published under paragraph (3) shall not contain any information which

the Executive Director considers should be excluded from the notice having

regard to the confidentiality provisions in any enactment or any commercially

sensitive information.

17. Procedure for other matters

The Executive Director shall, for matters in relation to an undertaking on a proposed

merger situation referred to the Commission, also carry out such relevant enquiry or

investigation required and follow the same procedure as set out in this Part.

PART IV: PROCEEDINGS BEFORE THE COMMISSION

18. The Secretary

(1) The Commission shall appoint a fit and proper person who shall be the Secretary

to the Commission.

(2) The Secretary shall -

(a) be the custodian of the records of the Commission;

(b) allow inspection of the records relevant to a hearing subject to any

instructions for such exclusion given by the Chairperson in relation to non-

disclosure of any matter on record;

(c) keep a register of complaints received by him which shall be open to public

inspection;

(d) compile a record of any proceeding during a meeting of the Commission

including -

(i) the chronology of events;

(ii) the initiating document;

(iii) the notice of meeting;

(iv) a report of the Executive Director, if any;

(v) any interim order or direction made or given;

(vi) all documentary evidence filed;

(vii) the transcript, if any of oral evidence given;

(viii) the final order or direction of the Commission;

(ix) any notice of appeal; and

(x) any review of any order or remedy.

(e) take written notes of the hearing proceedings before the Commission;

(f) keep two records for each case file as follows-

(i) one for the purposes of the Commission which includes every item of

information, including those which are confidential under the Act; and

(ii) one for the purposes of inspection or publication, which excludes all

information which may be considered confidential by the

Commission; and

(g) exercise such other functions as may be assigned to him by the

Chairperson or the Executive Director.

19. Meet ngs of the Comm ss on

(1) The Commission shall meet at such time and place as may be determined by the

chairperson for the purposes of discharging its functions under the Act.

(2) The Secretary and any other officer of the Commission whose presence is

required shall attend a meeting of the Commission.

(3) The duration of each hearing shall be as directed by the Chairperson and every

party to the proceedings shall be granted such opportunity to present its case as

is considered appropriate by the Commission.

(4) The Commission may direct any party to file written submissions which shall be

considered with the replies of the other parties to the proceedings or grant an oral

hearing to any party if it considers necessary.

(5) The Commission may, for reasons to be recorded in writing, adjourn a meeting.

20. D rect on on Inter m Measures

(1) The Commission may give such directions on interim measures as it considers

appropriate, and in particular, require the enterprise concerned to -

(a) terminate an agreement;

(b) cease the conduct in question;

(c) prevent irreversible integration of the two businesses in case of a merger; or

(d) modify the agreement or conduct.

(2) Where the Commission intends to give an enterprise a direction on interim

measures, it shall inform the enterprise of -

(a) its intention to give the direction;

(b) the nature and type of the direction; and

(c) the reasons for giving the direction.

(3) The Commission shall, before the direction is given; give the enterprise an

opportunity to make representations in writing or, if the enterprise so requests,

orally.

(4) The Commission may, if representations are made within 21 days by the

enterprise and the Commission is satisfied with the representations, vary the

direction or decide not to issue it.

21. Durat on of nter m measures

(1) A direction on interim measures shall have effect until -

(a) the Executive Director has discontinued his investigation;

(b) the Executive Director has completed his investigation and recommends

the termination of the interim measures, and the Commission is satisfied by

the recommendations of the Executive Director; or

(c) the Commission considers there is no longer any necessity to act as a

matter of urgency to prevent any serious or irreparable damage to a

particular person or category of persons or for the protection of the public

interest.

(2) Where a review or investigation has been completed and the Commission has

decided that a breach of section 41 or 42 or 43 of the Act has taken place, it may

replace the direction on interim measures with such direction as it considers

appropriate.

22. Requ rement for hear ng

(1) The Commission may conduct a hearing on receipt of a report under section 52

of the Act, if the party under investigation has made a request for a hearing.

(2) The Commission shall conduct a hearing where -

(a) it intends to issue a direction as provided for in section 58 of the Act; or

(b) it proposes to make an order for a penalty as provided for in section 59 of

the Act.

(3) (a) Where the Commission proposes to give a direction or impose a penalty

under section 58 or 59 of the Act against an enterprise, it shall issue a

notice to the enterprise stating -

(i) the intention of the Commission to impose a penalty or issue a

direction;

(ii) the type and terms of the sanction; and

(iii) the right of the enterprise to appear before the Commission for a

hearing within such time as the Commission considers appropriate in

the circumstances, but not exceeding 21 days from the date of the

notice.

(b) Where a person is unable to attend a hearing within the period of 21 days

and proves to the satisfaction of the Commission that his inability to do so

was due to an illness or any other reasonable cause, the Commission may

accept to hear the person at a later date, on such terms and conditions as it

may determine.

(4) Where the Commission receives representations from the Executive Director

regarding compliance or non-compliance with a direction or performance or non-

performance of an undertaking by an enterprise, the Commission shall, before

reviewing the matter with a view to taking any action under section 64 or 65 of

the Act, conduct a hearing.

23. Conduct of Hear ng

(1) The Executive Director or any other officer shall have the right to be present

during a hearing and to make submissions on any matter before the

Commission, as well as to present any document or other evidence that may be

relevant to the matter.

(2) The relevant enterprise and the complainant shall, subject to paragraph (3), have

a right to make representations on any matter before the Commission, as well as

to present any document or other evidence that may be relevant to the matter.

(3) A party to the proceedings shall not be entitled to produce before the

Commission additional evidence, either oral or documentary, which was in his

possession or knowledge but was not produced before the Executive Director

during an investigation, except where -

(i) it is proved to the satisfaction of the Commission that the party was

not given sufficient opportunity by the Executive Director to adduce

such evidence at the investigation stage;

(ii) It is proved to the satisfaction of the Commission that the Executive

Director, deliberately or negligently omitted to consider such evidence

at the investigation stage; or

(iii) It would be in the interests of natural justice or otherwise to so

provide in the view of the Commission.

(4) Any party or witness in a hearing before the Commission may be represented by

counsel or attorney or other representative duly authorized by him who shall be

allowed reasonable opportunity to present his case and in particular to inspect

documents which the Commission proposes to consider in determining the case.

(5) The Commission may require any party to the proceeding to give evidence in

writing or orally.

(6) Where the Commission requires any evidence to be given orally, it shall, if it

considers it necessary or expedient, grant an opportunity to the other party or

parties, as the case may be, to cross examine the person giving the evidence.

(7) Nothing in this rule shall prevent the Executive Director from pursuing any

avenue or making any appropriate criminal complaint for any offence being

committed under the Act.

24. Publ c access to hear ng

(1) Except where the Commission otherwise directs, for reasons to be recorded, a

hearing before the Commission shall be open to public.

(2) In taking a decision not to open the proceedings to the public, or once opened, to

hold the proceedings in camera, the Commission may take into account the

following matters -

(a) whether disclosure to the public would cause significant harm to a party;

(b) the degree of inhibition or encouragement in providing information in public;

and

(c) the efficient and proper conduct of proceedings.

25. Perm tt ng other persons to take part n proceed ngs

(1) While considering a matter in a hearing, the Commission may permit a person to

take part in the proceedings and make any representation:

(a) if satisfied that a person has a substantial interest in the outcome of the

proceedings; and

(b) that it is necessary in the public interest to allow that person to present his

opinion on that matter.

(2) An application to make representation at a hearing shall be made in writing to the

Secretary.

26. Subm ss ons or arguments before the Comm ss on

(1) Any party to proceedings or his authorized representative shall declare to the

Commission at the earliest opportunity whether it intends to make oral or written

representations during the course of a hearing.

(2) Where a party to the proceedings or his authorized representative has chosen to

file written representations it shall arrange to forward copies thereof to all parties

to the proceedings sufficiently in advance and submit proof of the receipt by all

parties to the Secretary before the date fixed for consideration of the matter by

the Commission.

(3) The Commission may fix or limit the time during which the oral submissions or

written arguments shall be addressed or filed by the parties or their authorized

representatives before it and may proceed to decide a matter in the absence of

the party which does not abide by such timings.

27. Proceed ngs n absence of party

(1) Where on the day fixed for any particular matter including the day of the meeting

re-fixed on adjournment, any party to the proceeding does not appear after

service of notice, the Commission may decide to continue proceedings in the

absence of party and pass appropriate notices as it considers necessary.

(2) Where any party refuses access to or otherwise does not provide necessary

information within the stipulated time or significantly impedes a hearing, the

Commission may make such order or issue such direction as it considers

appropriate on the basis of available facts.

(3) Where an order or a direction has been made or issued by the Commission

under paragraph (1) or (2) and a party shows that it was prevented from

participating in the proceeding before the Commission or furnishing the

information required for reasons beyond its control, the Commission, on being

satisfied, may recall the notice or direction.

28. Undertak ngs

(1) An enterprise may, at any time before the start of or during an investigation give

an undertaking to the Commission in writing to address any concern that may

have arisen or is likely to arise during the investigation, which shall be signed by

at least two directors of the enterprise or any other authorized person and shall

contain -

(a) statement of facts;

(b) details of the alleged concern together with a list of documents or evidence,

in support of each alleged concern;

(c) the measures that the enterprise proposes to take as an undertaking to

address the concerns to the Commission.

(2) Where the undertaking satisfactorily addresses all the concerns of the

Commission about prevention, restriction, distortion or substantial lessening of

competition, or not to proceed with a merger, the Commission shall after having

taken cognizance of the report of the Executive Director on the matter, determine

the case on the basis of that undertaking.

(3) Where the Commission accepts the undertaking of an enterprise, it shall be

published in the form of a decision of the Commission and shall have the effect of

a direction of the Commission under section 60 of the Act.

(4) The Executive Director shall cause the direction to be published on the

Commission's website or any other media, excluding any matter which the

Commission may consider commercially sensitive.

(5) Any direction given by the Commission shall set out its reasons for giving the

direction.

29. F nal d rect on

(1) Every direction of the Commission shall be signed and dated by the

Commissioners who were present and heard the matter.

(2) Every direction of the Commission shall, as far as practicable be made or issued

within 40 days from the date of the conclusion of the final arguments.

(3) A copy of the direction shall be served on the parties to the proceedings within

four weeks of the date of the direction.

(4) A copy of the direction shall be published in the Gazette and on the website of

the Commission.

Amended by [GN No. 202 of 2011]

PART V: DISCLOSURE AND CONFIDENTIALITY

30. D sclosure of nformat on

(1) Subject to paragraph (2), the Commissioners, the Executive Director or any

officer of the Commission shall keep confidential any information relating to any

particular business or affairs of any person, obtained by virtue of the Act or these

Rules.

(2) Information obtained may be disclosed where -

(a) the person to whom the information relates gives his consent to the

disclosure;

(b) the disclosure is required for the purpose of giving a party under

investigation adequate information to prepare his defence or submissions

before the Commission;

(c) the disclosure is required for the purpose of administering or enforcing the

Act;

(d) it is needed in connection with any enquiry into a criminal offence;

(e) a request for the production of information has been made by a foreign or

multinational competition authority where auritius is a party to an

international agreement providing for the production or exchange of

information;

(f) the information is required by a Court; or

(g) the information is required under any other enactment.

(3) When disclosing a document to a party, the Executive Director may edit the

document to remove information, or may disclose figures in aggregate.

31. Conf dent al ty

(1) The Executive Director shall maintain the confidentiality of the identity of a

complainant on a request made to him in writing.

(2) Any party may submit a request in writing to the Executive Director that a

document be treated as confidential.

(3) A request under paragraph (2) shall only be considered if the document, or a part

or parts thereof, is made public and this will result in disclosure of trade secrets

or destruction or appreciable diminution of the commercial value of any

information or can be reasonably expected to cause serious injury.

(4) A request under paragraph (2) shall be accompanied by a statement setting out

cogent reasons for such treatment and to the extent possible the date on which

such confidential treatment shall expire.

(5) Where such a document, or a part or parts thereof, forms part of the party's

written submissions, a party shall file a complete version with the words

"restriction of publication claimed" on top of the first page and the word

'confidential' clearly and legibly marked near the top on each page together with

a public version, which shall not contain such document or part or parts thereof.

(6) The public version of such written submissions shall be an exact copy of the

confidential version with the omissions of the confidential information being

indicated in a conspicuous manner, as stipulated in paragraph (5).

(7) The public version of such written submissions alone shall be served on the

other parties.

(8) On receipt of a request under paragraph (2), the Executive Director, if satisfied,

shall direct that the document, or a part or parts thereof, shall be kept

confidential for the time period to be specified.

(9) The Commission or the Executive Director may also consider the following while

arriving at a decision regarding confidentiality -

(a) the extent to which the information is known to the public;

(b) the extent to which the information is known to the employees, suppliers,

distributors and others involved in the party's business;

(c) the measures taken by the party to guard the secrecy of the information;

and

(d) the ease or difficulty with which the information could be acquired or

duplicated by others.

(10) Any document, or a part or parts thereof, that have been granted confidential

treatment under this section shall be kept separate from the public record and

secured in a sealed envelope or any other appropriate container, bearing the

title, the file number of the proceeding, the notation "confidential record under

section 30" and the date on which confidential treatment expires.

(11) Where the Commission includes in any order or direction information that has

been granted confidential treatment under this section, it shall file two versions of

the order or direction, namely -

(a) the public version which shall omit the confidential information that appears

in the complete version, be marked "subject to confidentiality requirements

under section 30" on the first page, shall be served upon the parties, and

shall be included in the public record of the proceedings; and

(b) the complete version which shall be placed in the confidential record of the

proceedings.

PART VI: APPEALS

32. Not ce of appeal

Any party who wishes to exercise his right of appeal under section 67 of the Act shall

file with the Executive Director a copy of his notice of appeal which shall set out the

grounds of appeal.

33. Dec s on on appeal

Where the Commission is notified by the Registry of the Supreme Court of the contents

of the Court's decision on appeal, it shall, as appropriate, amend the record of its

decision or conduct a fresh hearing in the matter.