COMPETITION: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
(section 95)
(2nd December, 2019)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Exemption from fees
PART II
Horizontal and Vertical Agreements
4. Threshold for determining prohibition
5. Threshold for determining dominant position
6. Investigation on Authority’s initiative
PART III
Exemptions
7. Application for exemption
8. Consultation by Authority on exemption
9. Issue of exemption
10. Exemption fees
PART IV
Investigations by the Authority
11. Complaints made to the Authority
12. Investigation by the Authority
13. Mitigation of financial penalty
14. Issue of inspector’s identification card
15. Claim of legal professional privilege
16. Referral to Tribunal
17. Interim relief
PART V
Control of Mergers
18. Notification of merger
19. Request for further information on merger
20. Notification of extension assessment period for a merger
21. Information by third party on merger
22. Threshold for merger control
23. Abandonment of merger
24. Revocation of approved merger
25. Revocation of S.I. No. 84 of 2011
S.I. 154, 2019.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Competition Regulations.
In these Regulations unless the context is required—
"leniency policy" means a policy that gives an enterprise full or partial immunity from the payment of fines under the Act.
An enterprise classified as small, micro and medium enterprise under the Industrial Development Act (Cap. 43:01) is exempted from paying any fees under regulations 10 and 18, respectively.
PART II
Horizontal and Vertical Agreements (regs 4-6)
4. Threshold for determining prohibition
The Authority may carry out an investigation to determine whether a horizontal or vertical agreement referred to under section 28 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.
5. Threshold for determining dominant position
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 together supply or acquire at least 50 per cent of the goods or services in the market.
6. Investigation on Authority’s initiative
Notwithstanding the thresholds under regulations 4 and 5, 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.
PART III
Exemptions (regs 7-10)
(1) An enterprise may apply to the Authority for an exemption in terms of section 33 of the Act in Form A set out in the Schedule.
(2) An application made under subregulation (1) shall be accompanied by—
(a) an application fee of 0.01 per cent of the applicant's latest annual turnover; and
(b) any document, affidavit, statement or other relevant information in respect of the applicant’s turnover as may be required by the Authority.
8. Consultation by Authority on exemption
(1) The Authority shall, by notice in the Gazette, invite interested parties to make representations before granting or revoking an exemption.
(2) The notice referred to in subregulation (1) shall be published 14 days before consultation with interested parties.
Where an applicant enterprise meets the requirements of section 33 of the Act and regulation 8, the Authority may grant an exemption in Form B set out in the Schedule.
An enterprise shall pay an annual fee of 0.01 per cent of the enterprise’s latest annual turnover for the duration of the exemption as required by section 93(a) of the Act.
PART IV
Investigations by the Authority (regs 11-17)
11. Complaints made to the Authority
(1) Any information or complaint made under section 36(1) of the Act shall be made in Form C set out in the Schedule.
(2) A preliminary inquiry conducted by the Authority in terms of section 36(1) of the Act shall be conducted within 90 days of receipt of the information or complaint.
(3) The Authority may, in conducting a preliminary inquiry under section 36(1) of the Act, request for information from any other person or enterprise it considers to be relevant.
(4) A request for information under subregulation (3) shall follow the same notice process and requirements specified under sections 36(2) and 36(4) of the Act.
(5) A decision by the Authority not to commence an investigation under section 36(5) of the Act shall be made and communicated to the complaint if any, within 90 days of receipt of the information or complaint.
12. Investigation by the Authority
(1) Where on its own initiative, the Authority decides to conduct a preliminary inquiry in terms of section 36(2) of the Act, it shall give notice of its intention to investigate as set out in Form D set out in the Schedule to every enterprise which is suspected to be a party to the practice being investigated.
(2) Where the Authority decides to carry out an investigation upon completion of a preliminary inquiry under subregulation (1), it shall give notice of its intention to do so in Form E set out in the Schedule to the parties mentioned under subregulation (1).
(3) The Authority may, before or during investigations, utilise the leniency policy where an enterprise—
(a) voluntarily discloses the existence of an agreement that is prohibited by sections 25 and 27 (1) of the Act; and
(b) co-operates with the Authority in the investigation of the practice; in its investigation report for referral to the Tribunal.
(4) Where the Authority carriers out an investigation without giving notice, it may issue an ex post notice of investigation in Form F set out in the Schedule.
13. Mitigation of financial penalty
The Tribunal shall, in imposing a financial penalty in terms of section 76(2) of the Act, take cognisance of an enterprise’s co-operation with the Authority’s investigations and utilise the leniency policy in order to mitigate the financial penalty or not to impose the financial penalty.
14. Issue of inspector’s identification card
(1) The Authority shall issue an inspector appointed under sections 19(2) and 37(1) of the Act with an identification card in Form G 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 the purposes of this regulation, a person in control of the premises includes any staff member of the enterprise.
15. Claim of legal professional privilege
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 38 of the Act, the person or enterprise shall submit to the Authority a claim for legal professional privilege in Form H set out in 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) A notice of non-referral issued to the complainant in terms of section 73(1)(b) of the Act shall be in Form I set out in the Schedule.
(2) A referral to the Tribunal in terms of section 73(4)(a) of the Act shall be as in Form J set out in the Schedule.
(1) A party who is likely to suffer irreparable damage or wants to protect public interest in terms of section 80 of the Act, may make an application to the Tribunal in terms of the rules and procedure of the Tribunal.
(2) A document containing the rules and procedure of the Tribunal referred to in subregulation (2) shall be obtained from the office of the Registrar of the Tribunal.
(3) Upon receipt of application by the concerned enterprise, the Tribunal shall give written notice to such enterprise prior to giving a direction in terms of section 80 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 Tribunal within 14 days from the date of receipt of the notice.
PART V
Control of Mergers (regs 18-25)
(1) A notification to the Authority of a proposed merger in terms of section 49(1) of the Act shall be in Form K 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*].
* Editorial Note - word was missing in original Gazette. Included from Regulations 2011.
(3) If the merger is hostile, an acquiring enterprise shall pay the merger fee.
(4) A merger notice shall be submitted in a single file and shall include a merger control statement and declaration from each merging enterprise.
(5) Subject to the protection of confidential information, the details relating to a notification referred to under section 49(2) of the Act may include—
(a) the names of all the enterprises involved in the merger;
(b) details of the shareholders of each enterprise involved in the merger;
(c) details of the Directors of each enterprise involved in the merger; and
(d) details of the business activities in Botswana of each enterprise involved in the merger.
19. Request for further information on merger
A request for further information by the Authority in terms of section 49(3) of the Act shall be made in Form L set out in the Schedule.
20. Notification of extension assessment period for a merger
A notice to enterprises made in terms of section 49(5) of the Act shall be given in Form M set out in the Schedule.
21. Information by third party on merger
A document, affidavit, statement or other relevant information given in respect of a proposed merger under section 50(3) of the Act may be given through any legal means of communication whether that is done orally or in writing.
22. Threshold for merger control
As provided for under section 47 of the Act, a proposed merger is subject to control in terms of the Act if—
(a) the annual turnover in Botswana, of the enterprise or enterprises being taken over exceeds P10 000 000;
(b) the value of assets in Botswana, of the enterprise or enterprises being taken over 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 18 and the parties abandon the proposed merger, notice of the abandonment of the merger shall be given to the Authority in Form N 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 O set out in the Schedule signed by all parties confirming that the merger is abandoned.
(3) A merger fee paid under regulation 18 shall not be refundable if the merger is abandoned after 14 days from the date the merger notice is received by the Authority.
24. Revocation of approved merger
A notice by the Authority to revoke, in terms of section 56(1) of the Act, its decision approving the implementation of a merger shall be made in Form P set out in the Schedule.
25. Revocation of S.I. No. 84 of 2011
The Competition Regulations are hereby revoked.
FORM A
COMPETITION AND CONSUMER AUTHORITY
APPLICATION FOR EXEMPTION
(reg. 7(1))
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To: The Competition and Consumer Authority |
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From: |
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(Name of Applicant) |
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We apply in terms of section 33 of the Competition Act for an exemption. |
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A single agreement A category of agreements |
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We seek an exemption for a period of ................... years. |
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In respect of this matter, have you previously applied for an exemption? |
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Yes No |
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If you answered “yes” to the above, was the exemption granted? |
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Yes No |
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Please provide the case number for the previous exemption application |
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Name and Title of person authorised to sign: |
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Authorised signature: |
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Date: |
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For Office Use only |
Authority file number: |
Date filed: |
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About this Form |
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This form is issued in terms of section 33 of the Competition Act. |
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This application must be accompanied by a typed statement of particulars listed in points 1 - 6 listed below, and a certified copy of the agreement if applicable, and must be signed by a person authorised by applicant. |
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NB: The form should be sent to the Competition and Consumer Authority at the address to be published by the Authority. |
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COMPETITION AND CONSUMER AUTHORITY |
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The following information must be included in your description of the agreement or practice for which you seek an exemption: |
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1. Your address in Botswana for service of documents. |
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2. A short description of your business. |
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3. A brief description of the agreement or practice which you seek to be exempted from and if an agreement has already been made, its date. |
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4. The names and addresses of other parties to that agreement or practice. |
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5. The facts and contentions on which you rely. |
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6. The sections of the Act that you believe may be contravened by the agreement, practice, or category of agreements or practices you have described, and a motivation for the belief. |
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NB: The form should be sent to the Competition and Consumer Authority at the following address: |
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Competition and Consumer Authority |
FORM B
COMPETITION AND CONSUMER AUTHORITY
EXEMPTION CERTIFICATE IN RESPECT OF RESTRICTIVE PRACTICES
(reg. 9)
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To: ..................................... |
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From: |
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(Name and file number of Applicant) This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article. |