CCCS publishes competition guidelines to provide greater clarity and guidance, to take effect from 1 February 2022: Allen & Gledhill

14 January 2022

The Competition and Consumer Commission of Singapore (“CCCS”) has revised and published nine Guidelines (“Guidelines”) on the Competition Act 2004 (“Act”) which will be effective from 1 February 2022. The Guidelines have been revised to provide greater clarity and guidance to businesses and competition practitioners on the analytical and procedural frameworks used by CCCS in applying the Act. CCCS announced the revised Guidelines through its media release of 31 December 2021 on its website www.cccs.gov.sg.

In revising the Guidelines, CCCS considered amendments made to the Act in 2018, findings and recommendations from CCCS’s E-commerce Platforms Market Study, CCCS’s experience in applying the Act since the Guidelines were last revised in 2016 and international best practices.

The revised Guidelines have incorporated suggestions and feedback from law firms, the business community, academia and a bar association following two public consultations in 2020 and 2021.

Between 10 September 2020 and 8 October 2020, CCCS conducted a public consultation on the proposed changes to six of the Guidelines. Between 16 July 2021 and 5 August 2021, CCCS conducted another public consultation on the proposed changes to the CCCS Guidelines on the Appropriate Amount of Penalty in Competition Cases. Most respondents were supportive of the proposed amendments to the Guidelines, with many offering suggestions on how the Guidelines could be improved. CCCS’s response to the public consultation is available on its website.

For more information about the two public consultations, please read our articles titled “CCCS seeks views on proposed changes to six competition guidelines” and “CCCS seeks feedback on proposed clarifications to scope of mitigating factors in its Penalty Guidelines”.

Set out below is a summary of the clarifications and revisions to the Guidelines:

CCCS Guidelines on the Section 47 Prohibition: Revised to provide greater clarity on issues relating to the assessment of market power and types of potentially abusive conduct in the digital era. Changes are also made for consistency with the proposed amendments to the CCCS Guidelines on the Treatment of Intellectual Property Rights, as well as for greater internal consistency.

CCCS Guidelines on the Substantive Assessment of Mergers: Revised to provide better guidance to businesses, consumers, and competition practitioners on issues relating to CCCS’s assessment of mergers, such as that for conglomerate mergers and the relevance of proprietary rights and data as barriers to entry or expansion.

CCCS Guidelines on Merger Procedures: Revised to enhance and clarify the process of notifying mergers to CCCS, and provide clarity on CCCS’s practices in relation to notification of mergers. CCCS has indicated that the changes are intended to ensure that practices which CCCS has already introduced are reflected, reduce business costs for merger parties submitting information to CCCS, facilitate information sharing between CCCS and other competition authorities and provide clarity on certain procedural aspects of Singapore’s merger regime.

CCCS Guidelines on Market Definition: Revised to provide greater clarity on issues related to market definition that may be relevant in the digital era. Taking into account the findings from the E-commerce Platforms Market Study released on 10 September 2020, CCCS has made changes to provide greater clarity on issues related to market definition for cases involving multi-sided platforms and/or digital platform companies. Further, amendments have been made to reflect CCCS’s experiences and practices in past cases, and to bring the Market Definition Guidelines into closer alignment with international practices in competition law.

For information about CCCS’s findings and recommendations from the E-commerce Platforms Market Study, please read our article titled “CCCS releases findings and recommendations from e-commerce platforms market study, intends to update competition guidelines”.

CCCS Guidelines on Directions and Remedies: Previously known as the CCCS Guidelines on Enforcement, the renamed Guidelines give effect to legislative amendments to the Act relating to commitments and remedies, and provide clarity on CCCS’s practices on substantive and procedural matters in assessing commitments and remedies. CCCS has also made amendments relating to timelines and processes for companies offering commitments proposals, as well as the information to be submitted for commitments proposals.

CCCS Guidelines on the Appropriate Amount of Penalty in Competition Cases: Revised to clarify the list of mitigating factors in the calculation of financial penalties in a section 34 infringement under the Act. Key changes include providing a further example at paragraph 2.15 (which sets out a non-exhaustive list of mitigating factors) to illustrate when “substantially limited involvement” by an undertaking in an infringement of section 34 of the Act would amount to a mitigating factor, and introducing a new paragraph 2.16 which further clarifies CCCS’s policy position on the treatment of undertakings that did not play a leader, instigator or pro-active participant role in an infringement.

CCCS Guidelines on the Treatment of Intellectual Property Rights: Revised due to the changes in the intellectual property rights legal landscape, and to provide greater clarity on the interface between intellectual property and competition law.