1. NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL (NEDLAC)
PRESENTATION ON COMPETITION AMENDMENT BILL
8 AUGUST 2008

2. OUTCOME OF PROCESS
All constituencies agreed that anti competitive behaviour such as hardcore cartels should not be supported
Effective and efficient competition law which creates a favourable environment for investment essential

3. Section 3: concurrent jurisdiction
Constituencies agreed that there was no intention to change the current policy stance on concurrent jurisdiction
However current Act is silent on the final authority on competition matters
Challenge remains as to how overlapping jurisdiction is managed

4. Section 3: concurrent jurisdiction
Agreement that dealing with the challenge of concurrent jurisdiction required
Clear allocation of roles
Framework for co-operation
Stakeholder understanding of arrangements

5. Confirmation of the policy of concurrent jurisdiction
Agreed approach
Revised wording which addresses the following
Confirmation of the policy of concurrent jurisdiction
Conclusion of formal agreements to deal with procedures including dispute resolution
Publication of draft agreements for public comment

6. Highly concentrated market Anti competitive outcomes
Complex monopoly
Intention to address conduct
Highly concentrated market
Anti competitive outcomes
Conscious parallel conduct
Interdependence amongst a few firms

7. Offences the same as already in the Act Investigation
Agreed approach
Revised wording which addresses the following
Offences the same as already in the Act
Investigation
Market share of firms must be qualified
Anticompetitive outcomes
Procedure of authorities
Offence

8. Agreed
Definition of conscious parallel conduct
Conscious parallel conduct occurs when two or more firms in a highly concentrated market, are aware of each other’s actions and conduct their business affairs in a manner that restricts competition between the firms

9. Market share percentage accounted for by firms involved
Agreed
principles of measurement of highly concentrated market
Market share percentage accounted for by firms involved
Number of firms
Size of firms

10. to provide for procedures in inquiries into anticompetitive outcomes
Market inquiries
to provide for procedures in inquiries into anticompetitive outcomes
Publication
Process to be followed
Outcomes
Reporting

11. Legal test to be linked to sub poena Amendments to terms of reference
Agreed approach
Legal test to be linked to sub poena
Amendments to terms of reference
Timing
Reporting
Confidential information

12. Stage in process of application of legal test Nature of legal test
Not agreed
Stage in process of application of legal test
Nature of legal test

13. Excusal from complaint
Concerns raised by constituencies all addressed by new text proposed by Government
Language aligned with leniency policy

14. Elements Standard of behaviour leading to criminal prosecution
Personal liability
Elements
Standard of behaviour leading to criminal prosecution
Leniency for firms and individuals
Treatment of evidence from competition authority proceedings
Payment of directors’ fines by companies

15. Negligence in this context may not be an appropriate standard
Agreed approach
Inclusion in Bill
Negligence in this context may not be an appropriate standard

16. “reasonably ought to have known” is a standard of negligence
Not agreed
“reasonably ought to have known” is a standard of negligence
Treatment of evidence from the competition authorities
Is the subsection needed?
Wording on payment of directors’ fines by companies not agreed by Business but principle agreed

17. Government and Business Labour
Not agreed
Evidence from proceedings
Government and Business
May be used in court
Labour
Rebuttable presumption that individual had knowledge

18. Additional issues raised by Labour
Notification of trade unions in mergers
Agreed head office
Concerns on creeping concentration
Labour to be consulted in regulations on merger thresholds

19. Additional issues raised by Labour
Notification of acquiring firm and target firm
Agreed where employees in acquiring and target firms affected trade unions to be notified

20. Additional issues raised by Labour
Addition to section 73(A)
Obstruction of course of justice
False information to tribunal as well

21. Additional issues raised by Labour
Filing of mergers
Proposal that no mergers be filed between 16 Dec and 7 January not supported but a shorter period can be considered
Purposes of Act
Proposal for amendment not supported

22. Additional issues raised by Labour
Consideration of mergers
Proposed amendments on consideration not supported
Consent orders
Proposal for notice and details of consent orders to be published in gazette and report on all to be tabled at Nedlac and parliament not supported

23. Additional issues raised by Labour
Penalties
Proposals on penalties to be increased not supported
Automatic inquiry into fair prices
Introduction of mechanism to determine fair price after cartel finding not supported
Agreed that Nedlac will identify sectors in which inquiries should be initiated for submission to the Minister