COMPETITION: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
(14th October, 2011)
ARRANGEMENT OF REGULATIONS
2. Exemption from fees
Horizontal and Vertical Agreements
3. Threshold for determining prohibition
4. Threshold for determining dominant position
5. Investigation on Authority's initiative
6. Application for exemption
7. Consultation by Authority on exemption
8. Issue of exemption
9. Exemption fees
Investigations by the Authority
10. Complaints to Authority
11. Investigation by Authority
12. Issue of inspector's identification card
13. Claim for legal professional privilege
14. Referral to Commission
15. Interim relief
Control of mergers
16. Notification of merger
17. Request for further information in merger
18. Extension of merger assessment period
19. Information by third party on merger
20. Threshold for merger control
21. Abandonment of merger
22. Revocation of approved merger
S.I. 84, 2011.
Preliminary (regs 1-2)
These Regulations may be cited as the Competition Regulations.
An enterprise classified as small, micro and medium enterprises under the Industrial Development Act shall be exempted from paying any fee under these Regulations.
Horizontal and Vertical Agreements (regs 3-5)
The Authority may carry out an investigation to determine whether a horizontal or vertical agreement referred to under section 27 of the Act may be prohibited if the Authority is satisfied that the parties to the agreement-
(a) in the case of a horizontal agreement, together supply or acquire 10 per cent or more of goods or services in any market in Botswana; or
(b) in the case of a vertical agreement, individually supply or acquire, at either one of the two levels of the market that are linked by the agreement, 10 per cent or more of goods or services in a market in- Botswana.
The Authority may consider an enterprise or enterprises to be in a dominant position if it is satisfied that-
(a) the enterprise supplies or acquires at least 25 per cent of the goods or services in the market; or
(b) three or fewer enterprises supply or acquire at least 50 per cent of the goods or services in the market.
Notwithstanding the threshold under regulation 3 and 4, the Authority may initiate an investigation into the conduct of any enterprise where the Authority has reasonable grounds to suspect that-
(a) the conduct or practice of one or more enterprises has caused or is likely to cause serious or irreparable harm to the market or consumer; or
(b) one or more enterprises possess such economic strength in a market as to allow the enterprise or enterprises to adjust prices or output without effective constraint from competitors or potential competitors.
Exemptions (regs 6-9)
(1) An enterprise may apply to the Authority in terms of section 32 of the Act in Form A set out in the Schedule to these Regulations.
(2) An application made under subregulation (1) shall be accompanied by an application fee of 0.01 per cent of the applicant's latest turnover and any document, affidavit, statement or other relevant information in respect of the applicant's turnover as may be required by the Authority.
(1) The Authority shall, by notice in the Gazette, invite interested parties to make representations before granting or revoking an exemption.
(2) The Authority shall, in the notice made under subregulation (1), notify interested parties of-
(a) where it intends to grant an exemption,
(i) the name of the applicant,
(ii) the nature of the agreement to be exempted,
(iii) the provisions of the Act likely to be contravened by the agreement,
(iv) the proposed period of exemption, and
(v) the period within which interested parties may submit any information relevant to the determination of the application; or
(b) the date it intends to revoke the exemption and the reasons for the revocation.
(3) The Authority shall make and publish the notice 14 days before consulting with interested parties.
Where an applicant enterprise meets the requirements of section 32 of the Act and regulation 7, the Authority may grant an exemption as set out in Form B of the Schedule.
An enterprise shall pay an annual fee of 0.01 per cent of the enterprise's latest turnover for the duration of the exemption.
Investigations by the Authority (regs 10-15)
(1) A person may make a complaint to the Authority or request the Authority to investigate a practice under section 35 by telephone, electronic mail, in person or through any other legal means of communication and may choose to be anonymous.
(2) After receipt of the complaint or information, the Authority shall record such information or complaint in Form C set out in the Schedule and make a decision whether to conduct an investigation.
(3) If the Authority decides not to conduct an investigation, the Authority shall, within 30 days from the date the complaint or request is made, inform the person of its decision and reasons for the decision.
(1) Where the Authority decides to conduct an investigation, it shall give notice of its intention to investigate as set out in Form D of the Schedule to every enterprise which is suspected to be a party to the practice being investigated or any person considered by the Authority to be relevant to the investigation seven days before starting the investigation.
(2) Notwithstanding subregulation (1), the Authority may carry out an investigation without giving notice of its intention to investigate where it considers that to give notice would materially prejudice its investigation.
(3) Where the Authority carries out an investigation without giving notice, it may issue an ex post notice of investigation as set out in Form E as set out in the Schedule.
(1) The Authority shall issue an inspector appointed under section 8 and section 36 of the Act with an identification card in Form F set out in the Schedule.
(2) When entering and searching the enterprise's premises or any other premises, the inspector shall present his or her identification card to-
(a) the owner of the premises;
(b) any person in control of the premises;
(c) any person who has control of a document or article that may have a bearing on the investigation; or
(d) any other person who may have information relevant to the investigation.
(3) For purposes of this regulation, a person in control of the premises includes any staff member of the enterprise.
Where a person or enterprise refuses to disclose or produce information or a document on the grounds of legal professional privilege in terms of section 37 of the Act, the person or enterprise shall submit to the Authority a claim for legal professional privilege as set out in Form G of the Schedule, within seven days, indicating-
(a) the name of the document that contains the confidential information;
(b) the page and line number at which the confidential information begins and ends;
(c) the name of the enterprise that owns the confidential information;
(d) the economic value, where possible, of the confidential information; and
(e) the reasons for the existing restrictions on access to the information.
(1) Where a party under investigation requests the Authority under section 39 (1) of the Act to refer a matter to the Commission for a hearing, the Authority shall within 30 days after receiving the request, make a decision whether the matter should be referred to the Commission for hearing.
(2) After the Authority makes its decision under subregulation (1), the Executive Secretary shall-
(a) where the Authority determines that a prohibited practice has been established, refer the matter to the Commission within 14 days from the date the decision is made; or
(b) in any other case, issue to the complainant a notice of non-referral in Form H set out in the Schedule.
(3) Where a notice of non-referral is issued in response to the request, the complainant may refer the matter directly to the Commission subject to its rules of procedure.
(4) A referral to the Commission, whether by the Authority or by a complainant, shall be made in Form I set out in the Schedule.
The Commission shall give written notice to the concerned enterprise to whom it proposes to give a direction before giving a direction under section 46 of the Act-
(a) indicating the specific prohibited practice which is being investigated or likely to be investigated;
(b) showing evidence of the irreparable damage suffered or likely to be suffered as a result of the practice; and
(c) inviting the enterprise or each of the enterprises to make written or oral representations they may wish to make to the Commission within 14 days from the date of receipt of the notice.
Control of Mergers (regs 16-22)
(1) Where enterprises propose to merge under section 56 (1) of the Act, each of the enterprises involved shall notify the Authority of the proposed merger through a merger notice in Form J set out in the Schedule.
(2) A merger notice shall be accompanied by a merger fee of 0.01 per cent of the merging enterprises' combined turnover or assets in Botswana, whichever is higher.
(3) The merger fee shall not apply to the turnover or assets of an enterprise which is a party to the merger, if-
(a) the enterprise has been bankrupt for at least three consecutive financial years; or
(b) the assets of the enterprise are being disposed of following a liquidation process.
(4) Where an enterprise is bankrupt or liquidated as stated under subregulation (3), the merger fee shall apply to the turnover or assets of the other merging enterprise or enterprises.
(5) If the merger is hostile, an acquiring enterprise shall pay the merger fee.
(6) A merger notice shall be submitted in a single file and shall include a merger control statement and declaration for each merging enterprise.
(1) If, after receipt of a merger notice made under regulation 16, the Authority is of the opinion that it requires further information, it may within 30 days from the date of receipt of the notice, request for further information from the merging enterprises or relevant stakeholders that may be identified by Authority.
(2) A request for further information shall be made in Form K set out in the Schedule.
Where the Authority extends the assessment period for a merger, the Authority shall give notice to the merging enterprises in Form L set out in the Schedule, not later than seven days before expiry of 30 days from the date of receipt of the notice.
Where a third party, not being a party to a proposed merger voluntarily wishes to submit to an inspector or the Authority any document, affidavit, statement or other relevant information in respect of a proposed merger, the third party may by any legal means of communication, oral or written, disclose or submit such information to the inspector or Authority.
A proposed merger is subject to control in terms of the Act if-
(a) the combined annual turnover in Botswana of the merging enterprises exceeds P10 000 000;
(b) the combined assets in Botswana of the merging enterprises exceeds P10 000 000; or
(c) the enterprises concerned would, following implementation of the merger, supply or acquire at least 20 per cent of a particular description of goods or services in Botswana.
(1) Where a merger notice is made under regulation 16 and the parties abandon the proposed merger, notice of the abandonment of the merger shall be given to the Authority in Form M set out in the Schedule by the parties previously proposing to merge.
(2) The notice of abandonment of merger under subregulation (1) shall be accompanied by a certificate of consent in Form N set out in the Schedule signed by all parties confirming that the merger is abandoned.
(3) A merger fee paid under regulation 16 shall not be refundable if the merger is abandoned after 14 days from the date the merger notice is received by the Authority.
Where the Authority proposes to revoke a decision approving the implementation of a merger under section 62 (1) of the Act, the Authority shall, within 14 days from the date the proposal is made, give notice in Form O set out in the Schedule to every enterprise involved in the merger and to any other person it may deem likely to have an interest in the matter-
(a) that it proposes to revoke its decision approving the implementation of the merger; and
(b) call upon such persons or enterprises to submit to the Authority representations, if any, they may wish to make regarding the proposed action, within 30 days of receipt of the notice.
APPLICATION FOR EXEMPTION
(reg 6 (1))
COMPETITION AUTHORITY BOTSWANA
To: The Competition Authority
(Name of Applicant)
We apply in terms of section 32 of the Competition Act for an exemption.
A single agreement
A category of agreements
A single practice
A category of practices
We seek an exemption for a period of ................................. years.
In respect of this matter, has a previous exemption been:
If you answered ''yes'' to either question above, please provide the case number for the previous exemption application ...................................................................... .
Name and Title of person authorised to sign: