FAIR COMPETITION ACT, 2009

Arrangement of Sections

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

3. Application of Act.

PART II

FAIR TRADING COMMISSION

4. Administration of Act.

5. Functions.

6. Powers.

PART III

RESTRICTIVE BUSINESS PRACTICE

Sub-Part I - Abuse of dominant position

7. Abuse of dominant position.

8. Request for Commission to consider conduct.

9. Notification for guidance.

10. Effect of guidance.

Sub-Part II - Agreements etc preventing, restricting or distorting competition

11. Provisions restricting, preventing or distorting competition.

12. Agreements containing exclusionary provision.

13. Request for Commission to examine agreement.

14. Notification for guidance.

15. Effect of guidance.

Sub-Part III - Resale price maintenance

16. Collective agreements by dealers or suppliers.

17. Agreement re minimum resale price void.

18. Patented goods.

19. Maintenance of minimum resale prices.

20. Withholding supplies.

Sub-Part IV - Control of merger situation by commission

21. Merger.

22. Application to Commission for merger.

23. Permitted merger.

24. Factors to be considered before grant of permission.

Sub-Part V - Anti-competitive business conduct

25. Price fixing.

26. Action to restrain competition.

27. Bid-rigging.

Sub-Part VI - Authorisation

28. Grant of authorisation.

29. Effect of authorisation.

30. Revocation or amendment of authorisation.

31. Register of Authorisation.

PART IV

INVESTIGATION BY AND HEARING BEFORE COMMISSION

32. Initiation of complaint by Commission.

33. Initiation of complaint by any person.

34. Investigation by Commission.

35. Discontinuation of investigation.

36. Report.

37. Convening of hearings.

PART V

ASSESSMENT OF RESTRICTIVE BUSINESS PRACTICE

38. Assessment under Sub-Parts I, II and IV of Part III.

39. Assessment under Sub-Parts III and V of Part III.

40. Consideration upon finding of adverse effects on competition.

PART VI

DETERMINATION OF CASES BY COMMISSION, PENALTIES AND REMEDIES

41. Directions in relation to conduct falling within scope of Sub-Part I of Part III.

42. Directions in relation to agreement falling within scope of Sub-Part II of Part III.

43. Consideration of offsetting benefits in determination of remedial measures.

44. Directions under Sub-Part IV of Part III.

45. Directions in relation to agreement or practice falling within scope of Sub-Parts III and V of Part III.

46. Financial penalty.

47. Interim measures.

48. Undertakings.

49. Keeping directions and undertakings under review.

PART VII

APPEAL

50. Appeal to Tribunal.

51. Prosecution of appeal.

52. Appeal to Supreme Court.

PART VIII

MISCELLANEOUS

53. Enforcement of directions, undertakings or order.

54. Regulations.

55. Transitional period.

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

18 of 2009.

AN ACT to promote, maintain and encourage competition, to prohibit the prevention, restriction or distortion of competition, and abuse of dominant positions in trade, to ensure that enterprises, irrespective of size, have the opportunity to participate equitably in the market place and provide for matters connected therewith.

[Date of commencement: 5th April 2010]

PART I

PRELIMINARY

1. Short title.

This Act may be cited as the Fair Competition Act, 2009.

2. Interpretation.

In this Act—

"acquire", in relation to—

(a) goods, includes to obtain by way of gift, purchase or exchange, lease, hire or hire purchase; and

(b) services, includes to accept the rendering or performance of services;

"advertisement" means any form of communication made to the public or a section of the public for the purpose of promoting the supply of goods or services;

"agreement" includes any agreement, arrangement or understanding, whether oral or in writing or whether or not it is or is intended to be legally enforceable;

"Board" has the meaning given to it under section 2 of the Fair Trading Commission Act, 2009;

"business"—

(a) means the carrying on of any commercial activity for gain or reward; and

(b) includes—

(i) manufacturing, producing, transporting, acquiring, supplying, storing and otherwise dealing in goods for gain or reward; or

(ii) acquiring, supplying and otherwise dealing in services for gain or reward;

"Commission" means the Fair Trading Commission established under section 3(1) of the Fair Trading Commission Act, 2009;

"concerted practice" means co-operative or coordinated conduct between enterprises achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement;

"consumer" means any direct or indirect user of a product or service supplied by an enterprise in the course of business, and includes—

(a) another enterprise that uses the product or service thus supplied as an input to its own business;

(b) a wholesaler, a retailer and a final consumer;

"document" includes—

(a) anything on which there is writing;

(b) a map, plan, drawing or photograph;

(c) anything from which sounds or visual images are capable of being reproduced;

(d) any record created, stored, generated, received or communicated by electronic or electromagnetic means;

"enterprise" means any person, firm, partnership, corporation, company, association, or other juridical person engaged in commercial activities for gain or reward, and includes its branches, subsidiaries, affiliates or other entities directly or indirectly controlled by it;

"exclusive dealing" means any practice whereby a supplier of goods—

(a) as a condition of supplying the goods to a consumer, requires that consumer to—

(i) deal only or primarily in goods supplied by or designated by the supplier or the supplier's nominee; or

(ii) refrain from dealing in a specified class or kind of goods except as supplied by the supplier or the supplier's nominee; or

(b) induces a consumer to meet a condition referred to in paragraph (a) by offering to supply the goods to the consumer on more favourable terms or conditions if the consumer agrees to meet that condition;

"goods" includes all chattels other than money, securities or choses in action;

"market restriction" means any practice whereby a supplier of goods, as a condition of supplying the goods to a consumer, requires that consumer to supply any goods only in a defined market, or exacts a penalty of any kind from the consumer if the consumer supplies any goods outside a defined market;

"merger" means the acquisition or establishment, direct or indirect, by one or more enterprises, whether by purchase of shares or assets, lease of assets, amalgamation or combination or otherwise, of control over the whole or a part of the business of an immediate competitor, supplier, consumer or other enterprise;

"Minister" means the Minister responsible for Trade;

"prescribed" means prescribed by regulations;

"price" includes any charge or fee, by whatever name called, payable in connection with the provision of a good or service;

"restrictive business practice" means any situation falling within Part III;

"service" means a service of any description, whether industrial, trade, professional or otherwise;

"share"—

(a) means a share in the share capital of a company or other body corporate, whether or not it carries the right to vote at general meetings; and

(b) includes—

(i) a beneficial interest in any such share;

(ii) a power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company;

(iii) a power to acquire or dispose of, or control the acquisition or disposition of, any such share; or

(iv) a perpetual debenture and perpetual debenture stock;

"supply" includes—

(a) in relation to goods—

(i) to sell, rent, exchange, hire or otherwise dispose of goods or an interest therein or a right thereto; or

(ii) to offer to sell, rent, exchange, hire or otherwise dispose of such goods, right or interest; or

(b) in relation to services, to provide services or offer to provide such services otherwise than under a contract of employment, and "supplier" shall be construed accordingly;

"tied selling" means any practice whereby a supplier of goods or services—

(a) as a condition of supplying the goods or services referred to in this definition as the "tied goods" or "tied services" respectively, to a consumer, requires the consumer to—

(i) acquire any other goods or services from the supplier or the supplier's nominee; or

(ii) refrain from using or distributing, in conjunction with the tied goods, any other goods that are not of a brand or manufacture designated by the supplier or the supplier's nominee; or

(b) induces a consumer to meet a condition set out in a provision of paragraph (a) by offering to supply the tied goods or tied services to the consumer on more favourable terms or conditions if the consumer agrees to meet that condition;

"trade" means any trade, business, industry, profession or occupation relating to the supply or acquisition of goods or services;

"Tribunal" means the Tribunal established under section 44(1) of the Fair Trading Commission Act, 2009.

(2) Every reference in this Act to—

(a) anti-competitive practice" or "anti-competitive business conduct" is a reference to a practice or conduct amounting to or resulting in a non minor restraint of trade or any act of competition in industrial or commercial matters, including the conclusion of an agreement or the establishment of an arrangement that—

(i) restricts trade;

(ii) maintains or is likely to result in the maintenance of a dominant position; or

(iii) constitutes a pricing regime respecting a particular product or trade that is controlled by a supplier or purchaser;

(b) "market" is a reference to a market for goods or services supplied in Seychelles;

(c) "lessening of competition" shall, unless the context otherwise requires, include references to hindering or preventing competition.

(3) For the purposes of this Act, the effect on competition in a market shall be determined by reference to all factors that affect competition in that market, including competition from goods or services supplied or likely to be supplied by persons not resident or carrying on business in Seychelles.

3. Application of Act.

(1) Save as otherwise provided for in this section or elsewhere in this Act, this Act shall apply to every economic activity within, or having an effect within, Seychelles.

(2) This Act shall bind the State to the extent that the State engages in trade or business for the production or supply of goods or services within a market in Seychelles which is open to participation by other enterprises.

(3) This Act does not apply to matters listed in Schedule 1.

PART II

FAIR TRADING COMMISSION

4. Administration of Act.

The Commission shall be responsible for the administration of this Act.

5. Functions.

(1) The Commission shall—

(a) be responsible for the promotion and maintenance of fair competition;

(b) carry out on its own initiative or at the request of any person or enterprise that has an interest in a matter, such investigations in relation to the conduct of trade—

(i) as will enable it to prevent the use of business practices in contravention of this Act; or

(ii) as it may consider necessary or desirable in connection with any matters falling within the provisions of this Act;

(c) keep under review commercial activities to ensure that practices that may adversely or unfairly affect the interests of consumers and businesses are prevented or terminated;

(d) take such action as it considers necessary—

(i) to prevent the abuse of a dominant position by an enterprise;

(ii) to eliminate anti-competitive practices; and

(iii) to prevent or control anti-competitive mergers;

(e) make available to consumers general information with respect to their rights and obligations under this Act; and

(f) perform such other functions to give effect to this Act.

6. Powers.

(1) The Commission shall have such powers as are necessary to enable it to effectively perform its functions and may, in particular—

(a) enter into such contracts as may be necessary or expedient for the purpose of performing its functions under this Act;

(b) conduct as required, any hearings with interested persons or parties;

(c) issue orders and directions in accordance with this Act;

(d) impose remedies or financial penalties on an enterprise which conducts its business in breach of this Act;

(e) impose such fees as may be required under this Act or regulations made under it;

(f) co-operate with authorities in other countries entrusted with functions similar to those of the Commission.

PART III

RESTRICTIVE BUSINESS PRACTICE

Sub-Part I

Abuse of Dominant Position

7. Abuse of dominant position.

(1) Subject to subsection (4), any conduct on the part of one or more enterprise or enterprises which amounts to an abuse of a dominant position in a market is prohibited, if it may adversely or unfairly affect trade within Seychelles.

(2) For the purposes of this Act, an enterprise or enterprises together hold a dominant position or a joint dominance in a market if that enterprise or enterprises together occupy such a position of economic strength as will enable them to operate in the market independently without effective competition from their clients, competitors or potential competitors.

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