Agreements, etc., preventing, restricting or distorting competition
34.—(1) Subject to section 35, agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within Singapore are prohibited unless they are exempt in accordance with the provisions of this Part.
(2) For the purposes of subsection (1), agreements, decisions or concerted practices may, in particular, have the object or effect of preventing, restricting or distorting competition within Singapore if they —(a)
directly or indirectly fix purchase or selling prices or any other trading conditions;
(b)
limit or control production, markets, technical development or investment;
(c)
share markets or sources of supply;
(d)
apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
(e)
make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(3) Any provision of any agreement or any decision which is prohibited by subsection (1) is void on or after 1 January 2006 to the extent that it infringes that subsection.
(4) Unless the context otherwise requires, a provision of this Act which is expressed to apply to, or in relation to, an agreement is to be read as applying, with the necessary modifications, equally to, or in relation to, a decision by an association of undertakings or a concerted practice.
(5) Subsection (1) applies to agreements, decisions and concerted practices implemented before, on or after 1 January 2006.
Excluded agreements
35. The section 34 prohibition does not apply to such matter as may be specified in the Third Schedule.
Block exemptions
36.—(1) If agreements which fall within a particular category of agreements are, in the Commission’s opinion, likely to be agreements referred to in section 41, the Commission may recommend that the Minister make an order specifying that category for the purposes of this section.
(2) The Minister may make an order giving effect to such a recommendation —(a)
in the form in which the recommendation is made; or
(b)
subject to such modifications as the Minister considers appropriate.
(3) An order made under this section is referred to in this Part as a block exemption order.
(4) An agreement which falls within a category specified in a block exemption order is exempt from the section 34 prohibition.
(5) An exemption under this section is called in this Part a block exemption.
Block exemption orders
37.—(1) A block exemption order may impose conditions or obligations subject to which a block exemption has effect.
(2) A block exemption order may provide —(a)
that breach of a condition imposed by the order has the effect of cancelling the block exemption in respect of an agreement as from such date as the Commission may specify;
(b)
that if there is a failure to comply with an obligation imposed by the order, the Commission may, by written notice, cancel the block exemption in respect of the agreement as from such date as the Commission may specify; and
(c)
that if the Commission considers that a particular agreement is not one to which section 41 applies, it may cancel the block exemption in respect of that agreement as from such date as the Commission may specify.
(3) A block exemption order may provide for a block exemption to have effect from a date earlier than that on which the order is made.
(4) A block exemption order may provide that the order ceases to have effect at the end of a specified period.
(5) In this section, “specified” means specified in a block exemption order.
Opposition to block exemptions
38.—(1) A block exemption order may provide that a party to an agreement which does not qualify for the block exemption created by the order, but satisfies specified criteria, may notify the Commission of the agreement for the purposes of subsection (2).
(2) An agreement which is notified under any provision included in a block exemption order by virtue of subsection (1) is treated, as from the end of the notice period, as falling within a category specified in a block exemption order unless the Commission —(a)
is opposed to it being so treated; and
(b)
gives written notice to the party concerned of its opposition before the end of that period.
(3) If the Commission gives notice of its opposition under subsection (2), the notification under subsection (1) is treated as a notification under section 44.
(4) In this section —“notice period” means such period as may be specified with a view to giving the Commission sufficient time to consider whether to oppose under subsection (2);
“specified” means specified in a block exemption order.
Procedure for block exemptions
39.—(1) Before making a recommendation under section 36(1), the Commission must —(a)
publish details of its proposed recommendation in such a way as the Commission thinks most suitable for bringing it to the attention of those likely to be affected; and
(b)
consider any representations made to the Commission regarding its proposed recommendation.
(2) If the Minister proposes to give effect to such a recommendation subject to modifications, the Minister must inform the Commission of the proposed modifications and take into account any comments made by the Commission.
Variation and revocation of block exemption orders
40.—(1) If, in the opinion of the Commission, it is appropriate to vary or revoke a block exemption order, the Commission may make a recommendation to that effect to the Minister.
(2) Section 39 applies to any proposed recommendation under subsection (1).
(3) Where there has been no recommendation under subsection (1), the Minister must, before exercising the Minister’s power to vary or revoke a block exemption order —(a)
inform the Commission of the proposed variation or revocation; and
(b)
take into account any comments made by the Commission.
Criteria for block exemptions
41. Section 36 applies to any agreement which contributes to —(a)
improving production or distribution; or
(b)
promoting technical or economic progress,
but which does not —
(c)
impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
(d)
afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the goods or services in question.
Requests for Commission to examine agreements
42.—(1) Sections 43 and 44 provide for an agreement to be examined by the Commission on the application of a party to the agreement who thinks that it may infringe the section 34 prohibition.
(2) The Minister may make regulations to provide —(a)
for the procedure to be followed —(i)
by any person making an application under subsection (1); and
(ii)
by the Commission, in considering such an application; and
(b)
as to the application of sections 43 to 46 and the procedure referred to in paragraph (a), with such modifications (if any) as may be prescribed, in cases where the Commission —(i)
has given a direction withdrawing an exclusion; or
(ii)
is considering whether to give such a direction.
Notification for guidance
43.—(1) A party to an agreement who applies for the agreement to be examined under this section must —(a)
notify the Commission of the agreement; and
(b)
apply to it for guidance.
(2) On an application under this section, the Commission may give the applicant guidance as to whether or not, in its view, the agreement is likely to infringe the section 34 prohibition.
(3) If the Commission considers that the agreement is likely to infringe the section 34 prohibition if it is not exempt, its guidance may indicate whether the agreement is likely to be exempt from the prohibition under a block exemption.
(4) If an agreement to which the section 34 prohibition applies has been notified to the Commission under this section, no penalty may be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period —(a)
beginning with the date on which the notification was given; and
(b)
ending with such date as may be specified in a written notice given to the applicant by the Commission when the application has been determined.
(5) The date specified in a notice under subsection (4)(b) must not be earlier than the date on which the notice is given.
Notification for decision
44.—(1) A party to an agreement who applies for the agreement to be examined under this section must —(a)
notify the Commission of the agreement; and
(b)
apply to it for a decision.
(2) On an application under this section, the Commission may make a decision as to —(a)
whether the section 34 prohibition has been infringed; and
(b)
if it has not been infringed, whether that is —(i)
because of the effect of an exclusion;
(ii)
because the agreement is exempt from the prohibition; or
(iii)
because a commitment has been accepted pursuant to section 60A(2).[15/2018]
(3) If an agreement to which the section 34 prohibition applies has been notified to the Commission under this section, no penalty shall be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period —(a)
beginning with the date on which the notification was given; and
(b)
ending with such date as may be specified in a written notice given to the applicant by the Commission when the application has been determined.
(4) The date specified in a notice under subsection (3)(b) must not be earlier than the date on which the notice is given.
Effect of guidance
45.—(1) This section applies to an agreement if the Commission has determined an application under section 43 by giving guidance that —(a)
the agreement is unlikely to infringe the section 34 prohibition, regardless of whether or not it is exempt; or
(b)
the agreement is likely to be exempt under a block exemption.
(2) The Commission must not take any further action in relation to the section 34 prohibition with respect to an agreement to which this section applies, unless —(a)
it has reasonable grounds for believing that there has been a material change of circumstance since it gave its guidance;
(b)
it has reasonable grounds for suspecting that the information on which it based its guidance was incomplete, false or misleading in a material particular;
(c)
one of the parties to the agreement applies to it for a decision under section 44 with respect to the agreement; or
(d)
a complaint about the agreement has been made to it by a person who is not a party to the agreement.[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 34 prohibition by an agreement to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —(a)
it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b)
it considers that it is likely that the agreement will infringe the section 34 prohibition; and
(c)
it gives written notice to the party on whose application the guidance was given that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —(a)
on which it based its guidance; and
(b)
which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Effect of decision that section 34 prohibition has not been infringed
46.—(1) This section applies to an agreement if the Commission has determined an application under section 44 by making a decision that the agreement has not infringed the section 34 prohibition.
(2) The Commission must not take any further action in relation to the section 34 prohibition with respect to the agreement unless —(a)
it has reasonable grounds for believing that there has been a material change of circumstance since it gave its decision; or
(b)
it has reasonable grounds for suspecting that the information on which it based its decision was incomplete, false or misleading in a material particular.[23/2007]
(3) No penalty may be imposed under this Part in respect of any infringement of the section 34 prohibition by an agreement to which this section applies.
(4) The Commission may remove the immunity given by subsection (3) if —(a)
it takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);
(b)
it considers that it is likely that the agreement will infringe the section 34 prohibition; and
(c)
it gives written notice to the party on whose application the decision was made that it is removing the immunity as from the date specified in its notice.
(5) If the Commission has reasonable grounds for suspecting that information —(a)
on which it based its decision; and
(b)
which was provided to it by a party to the agreement,
was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
