Guidelines on enforcement of Part
61.—(1) The Commission may, with a view to enabling any person to order the person’s affairs in compliance with the provisions of this Part, cause to be published in the Gazette guidelines indicating the manner in which the Commission will interpret, and give effect to, the provisions of this Part.
(2) For the purpose of preparing any guidelines under subsection (1), the Commission may consult with such persons as it thinks appropriate.
(3) Where the guidelines would apply to an industry or a sector of industry that is subject to the regulation and control of another regulatory authority, the Commission must, in preparing those guidelines, consult with that regulatory authority.
(4) Guidelines published under this section are not binding on the Commission.
Power to require documents or information
61A.—(1) Where the Commission —(a)
has reasonable grounds for suspecting that any feature, or combination of features, of a market in Singapore for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in Singapore; or
(b)
in considering an application for decision filed pursuant to section 44, 51, 57 or 58, has reasonable grounds for suspecting that —(i)
the section 34 prohibition has been infringed by any agreement;
(ii)
the section 47 prohibition has been infringed by any conduct;
(iii)
the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(iv)
the section 54 prohibition has been infringed by any merger,
the Commission may, by written notice to any person, require the person to produce to the Commission a specified document, or to provide the Commission with specified information, which the Commission considers relates to any matter relevant to such purposes.
[23/2007]
(2) A notice under subsection (1) must indicate —(a)
the purpose for which the specified document or specified information is required by the Commission; and
(b)
the nature of the offences created by sections 75 to 78.[23/2007]
(3) The Commission may specify in the notice —(a)
the time and place at which any document is to be produced or any information is to be provided; and
(b)
the manner and form in which it is to be produced or provided.[23/2007]
(4) The power under this section to require a person (P) to produce a document includes the power —(a)
if the document is produced —(i)
to take copies of it or extracts from it; and
(ii)
to require P, or any person who is a present or past officer of P, or is or was at any time employed by P, to provide an explanation of the document; or
(b)
if the document is not produced, to require P to state, to the best of P’s knowledge and belief, where it is.[23/2007]
(5) For the purposes of subsection (1)(a), any reference to a feature of a market in Singapore for goods or services is construed as a reference to —(a)
the structure of the market concerned or any aspect of that structure;
(b)
any conduct (whether or not in the market concerned) of one or more than one person who supplies or acquires goods or services in the market concerned; or
(c)
any conduct relating to the market concerned of customers of any person who supplies or acquires goods or services,
and, in this subsection, “conduct” includes any failure to act (whether or not intentional) and any other unintentional conduct.
[23/2007]
(6) In subsections (1) and (2), “specified” means —(a)
specified or described in the notice; or
(b)
falling within a category which is specified or described in the notice.[23/2007]
Power to investigate
62.—(1) The Commission may conduct an investigation if there are reasonable grounds for suspecting that —(a)
the section 34 prohibition has been infringed by any agreement;
(b)
the section 47 prohibition has been infringed by any conduct;
(c)
the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(d)
the section 54 prohibition has been infringed by any merger.[23/2007]
(2) For the purpose of subsection (1), the Commission may appoint an inspector to conduct the investigation.
Power when conducting investigation
63.—(1) For the purposes of an investigation under section 62, the Commission or the inspector may, by written notice to any person, require that person to produce to the Commission or the inspector a specified document, or to provide the Commission or the inspector with specified information, which the Commission or the inspector considers relates to any matter relevant to the investigation.
(2) A notice under subsection (1) must indicate —(a)
the subject matter and purpose of the investigation; and
(b)
the nature of the offences created by sections 75 to 78.
(3) The Commission or the inspector may also specify in the notice —(a)
the time and place at which any document is to be produced or any information is to be provided; and
(b)
the manner and form in which it is to be produced or provided.
(4) The power under this section to require a person (P) to produce a document includes the power —(a)
if the document is produced —(i)
to take copies of it or extracts from it; and
(ii)
to require P, or any person who is a present or past officer of P, or is or was at any time employed by P, to provide an explanation of the document; or
(b)
if the document is not produced, to require P to state, to the best of P’s knowledge and belief, where it is.
(5) For the purposes of an investigation under section 62, a person who is empowered to enter any premises under section 64(1), or who is authorised under a warrant under section 65 to enter the premises specified in the warrant, may —(a)
orally examine any individual on the premises who appears to be acquainted with the facts and circumstances relevant to the investigation that is being carried out; and
(b)
require the individual to answer any question relating to the investigation.[15/2018]
(6) Any information provided verbally by an individual under subsection (1), or any answer given or statement made by an individual under subsection (5), must —(a)
be reduced to writing;
(b)
be read over to the individual;
(c)
if the individual does not understand English, be interpreted in a language that the individual understands; and
(d)
after correction (if any), be signed by the individual.[15/2018]
(7) In subsection (1), “specified” means —(a)
specified, or described, in the notice; or
(b)
falling within a category which is specified, or described, in the notice.
Power to enter premises without warrant
64.—(1) In connection with an investigation under section 62 —(a)
any officer of the Commission who is authorised by the Commission to do so (an investigating officer) and such other officers or persons as the Commission has authorised in writing to accompany the investigating officer (authorised person); and
(b)
any inspector and such other person as the inspector may require,
may enter any premises.
[23/2007]
(2) An investigating officer or inspector, and an authorised person or person required by the inspector respectively, must not enter any premises in the exercise of the powers under this section unless the investigating officer or the inspector (as the case may be) has given the occupier of the premises a written notice which —(a)
gives at least 2 working days’ notice of the intended entry;
(b)
indicates the subject matter and purpose of the investigation; and
(c)
indicates the nature of the offences created by sections 75 to 78.[23/2007]
(3) Subsection (2) does not apply —(a)
if the investigating officer or inspector has reasonable grounds for suspecting that the premises are, or have been, occupied by an undertaking which is being investigated in relation to —(i)
an agreement referred to in section 34;
(ii)
conduct referred to in section 47; or
(iii)
an anticipated merger, or a merger referred to in section 54; or
(b)
if the investigating officer or inspector has taken all such steps as are reasonably practicable to give notice but has not been able to do so.[23/2007]
(4) Where subsection (3) applies, the power of entry conferred by subsection (1) must be exercised —(a)
in the case of an investigating officer and any authorised person, upon production of —(i)
evidence of the investigating officer’s authorisation and the authorisation of every authorised person accompanying him or her; and
(ii)
a document containing the information referred to in subsection (2)(b) and (c); and
(b)
in the case of an inspector and any person required by the inspector, upon production of —(i)
evidence of the inspector’s appointment; and
(ii)
a document containing the information referred to in subsection (2)(b) and (c).[23/2007]
(5) An investigating officer, an authorised person, an inspector or a person required by the inspector entering any premises under this section may —(a)
take with him or her such equipment as appears to him or her to be necessary;
(b)
require any person on the premises —(i)
to produce any document which the investigating officer, authorised person, inspector or person required by the inspector considers relates to any matter relevant to the investigation; and
(ii)
if the document is produced, to provide an explanation of it;
(c)
require any person to state, to the best of the person’s knowledge and belief, where any document mentioned in paragraph (b)(i) is to be found;
(d)
take copies of, or extracts from, any document which is produced;
(e)
require any information which is stored in any electronic form and is accessible from the premises and which he or she considers relates to any matter relevant to the investigation, to be produced in a form —(i)
in which it can be taken away; and
(ii)
in which it is visible and legible; and
(f)
take any step which appears to be necessary for the purpose of preserving or preventing interference with any document which he or she considers relates to any matter relevant to the investigation.[23/2007; 15/2018]
(6) The power to require any person on the premises to produce any document under subsection (5)(b) includes the power to require that person to produce the document at such time and place, and in such form and manner, as may be required by the investigating officer, authorised person, inspector or person required by the inspector.[15/2018]
Power to enter premises under warrant
65.—(1) The Commission or any inspector may apply to a court for a warrant and the court may issue such a warrant if it is satisfied that —(a)
there are reasonable grounds for suspecting that there are on any premises documents —(i)
the production of which has been required under section 63 or 64; and
(ii)
which have not been produced as required;
(b)
there are reasonable grounds for suspecting that —(i)
there are on any premises documents which the Commission or the inspector has power under section 63 to require to be produced; and
(ii)
if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or
(c)
an investigating officer, an authorised person, an inspector or a person required by the inspector has attempted to enter the premises in the exercise of his or her powers under section 64 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that section.[23/2007]
(2) A warrant under this section must authorise a named officer, and —(a)
in the case of an investigation conducted by the Commission, such other officers or persons as the Commission has authorised in writing to accompany the named officer; and
(b)
in the case of an investigation conducted by an inspector, such other persons as the inspector may require,
to do all or any of the following:
(c)
to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
(d)
to search any person on those premises if there are reasonable grounds for believing that that person has in his or her possession any document, equipment or article which has a bearing on the investigation;
(e)
to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (the relevant kind);
(f)
to take possession of any document appearing to be of the relevant kind if —(i)
such action appears to be necessary for preserving the document or preventing interference with it; or
(ii)
it is not reasonably practicable to take copies of the document on the premises;
(g)
to take any other step which appears to be necessary for the purpose mentioned in paragraph (f)(i);
(h)
to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his or her knowledge and belief, where it may be found;
(i)
to require any person on the premises to produce any document of the relevant kind at the time and place, and in the form and manner, required by the named officer or other officer or person whom the Commission has authorised in writing to accompany the named officer, or by any other person required under paragraph (b) by an inspector;
(j)
to require any information which is stored in any electronic form and is accessible from the premises and which he or she considers relates to any matter relevant to the investigation, to be produced in a form —(i)
in which it can be taken away; and
(ii)
in which it is visible and legible;
(k)
to remove from those premises for examination any equipment or article which relates to any matter relevant to the investigation.[23/2007; 15/2018]
(3) If, in the case of a warrant under subsection (1)(b), the court is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant must also authorise the actions mentioned in subsection (2) to be taken in relation to any such document.
(4) Where possession of any document is taken under subsection (2)(f) or (3), the named officer may, at the request of the person from whom possession of the document was taken, provide such person with a copy of the document.
(5) A named officer may allow any equipment or article which has a bearing on an investigation and which may be removed from any premises for examination under subsection (2)(k) to be retained on those premises subject to such conditions as the named officer may require.[23/2007]
(6) Any person who fails to comply with any condition imposed under subsection (5) shall be guilty of an offence.
(7) A warrant issued under this section must indicate —(a)
the subject matter and purpose of the investigation; and
(b)
the nature of the offences created by sections 75 to 78,
and continues in force until the end of the period of one month beginning from the day on which it is issued.
(8) The powers conferred by this section must not be exercised except upon production of a warrant issued under this section.
(9) Any person entering premises by virtue of a warrant under this section may take with him or her such equipment as appears to the person to be necessary.
(10) If there is no one at the premises when the named officer proposes to execute such a warrant, the named officer must, before executing it —(a)
take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
(b)
if the occupier is informed, afford the occupier or the occupier’s legal or other representative a reasonable opportunity to be present when the warrant is executed.
(11) If the named officer is unable to inform the occupier of the intended entry, the named officer must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(12) On leaving any premises which the named officer has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he or she found them.
(13) Any document of which possession is taken under subsection (2)(f) may be retained for a period of 3 months.
(14) In this section —“named officer” means —(a)
an officer of the Commission named in the warrant; or
(b)
the inspector named in the warrant,
as the case may be;
“occupier”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.
Self-incrimination and savings for professional legal advisers
66.—(1) A person is not excused from disclosing any information or document to the Commission or (as the case may be) to an investigating officer, such officer or person as the Commission has authorised in writing to accompany the investigating officer, an inspector or a person required by the inspector, under a requirement made of him or her under any provision of this Act on the ground that the disclosure of the information or document might tend to incriminate him or her.[23/2007]
(2) Where a person claims, before making a statement disclosing information that he or she is required to under any provision of this Act to the Commission or (as the case may be) to an investigating officer, such officer or person as the Commission has authorised in writing to accompany the investigating officer, an inspector or a person required by the inspector, that the statement might tend to incriminate him or her, that statement —(a)
is not admissible in evidence against him or her in criminal proceedings other than proceedings under Part 5; but
(b)
is, for the avoidance of doubt, admissible in evidence in civil proceedings, including proceedings under this Act.[23/2007]
(3) Nothing in this Part —(a)
compels a professional legal adviser to disclose or produce a privileged communication, or a document or other material containing a privileged communication, made by or to him or her in that capacity; or
(b)
authorises the taking of any such document or other material which is in his or her possession.
(4) A professional legal adviser who refuses to disclose the information or produce the document or other material referred to in subsection (3) is nevertheless obliged to give the name and address (if the adviser knows them) of the person to whom, or by or on behalf of whom, that privileged communication was made.
Interim measures
67.—(1) If the Commission —(a)
has reasonable grounds for suspecting that the section 34 prohibition or the section 47 prohibition has been infringed but has not completed its investigations into the matter; and
(b)
considers that it is necessary for it to act under this section as a matter of urgency for the purpose —(i)
of preventing serious, irreparable damage to a particular person or category of persons; or
(ii)
of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(2) If the Commission has reasonable grounds for suspecting that the section 54 prohibition —(a)
will be infringed by an anticipated merger, if carried into effect; or
(b)
has been infringed by a merger,
but has not completed its investigations into the matter, and considers that it is necessary for it to act under this section —
(c)
for the purpose of preventing any action that may prejudice —(i)
the investigations; or
(ii)
the giving of any direction under section 69; or
(d)
as a matter of urgency for the purpose —(i)
of preventing serious, irreparable damage to a particular person or category of persons; or
(ii)
of protecting the public interest,
the Commission may give such directions as it considers appropriate for that purpose.
[23/2007]
(3) Before giving a direction under this section, the Commission must —(a)
give written notice to the person to whom it proposes to give the direction; and
(b)
give that person an opportunity to make representations.
(4) A notice under subsection (3) must indicate the nature of the direction which the Commission is proposing to give and its reasons for wishing to give it.
(5) A direction given under this section has effect while subsection (1) or (2) (as the case may be) applies, but may be replaced if the circumstances permit by a direction under section 69.[23/2007]
(6) In the case of a suspected infringement of the section 34 prohibition, sections 69(2)(a) and 85 also apply to directions given under this section.
(7) In the case of a suspected infringement of the section 47 prohibition, sections 69(2)(b) and 85 also apply to directions given under this section.
(8) In the case of a suspected infringement of the section 54 prohibition by an anticipated merger, if carried into effect, or a merger, sections 69(2)(c)(i) and (d)(i) and 85 also apply to directions given under this section.[23/2007]
Decision of Commission upon completion of investigation
68.—(1) Where —(a)
after considering the statements made, or documents or articles produced, in the course of an investigation conducted by it under this Part; or
(b)
in the case of an investigation conducted by an inspector, after considering the report of the inspector,
the Commission proposes to make a decision that the section 34 prohibition has been infringed by any agreement, the section 47 prohibition has been infringed by any conduct, the section 54 prohibition will be infringed by any anticipated merger, if carried into effect, or the section 54 prohibition has been infringed by any merger, the Commission must —
(c)
give written notice to the person likely to be affected by such decision; and
(d)
give such person an opportunity to make representations to the Commission.[23/2007]
(2) Subject to subsections (3) and (5), upon considering any representation made to the Commission under subsection (1)(d), the Commission may, as it thinks fit, make a decision that —(a)
the section 34 prohibition has been infringed by any agreement;
(b)
the section 47 prohibition has been infringed by any conduct;
(c)
the section 54 prohibition will be infringed by any anticipated merger, if carried into effect; or
(d)
the section 54 prohibition has been infringed by any merger.[23/2007]
(3) Where —(a)
in relation to an anticipated merger, the Commission proposes to make a decision that the section 54 prohibition will be infringed by the anticipated merger, if carried into effect; or
(b)
in relation to a merger, the Commission proposes to make a decision that the section 54 prohibition has been infringed by the merger,
and the Commission has given written notice under subsection (1)(c) to the parties to the anticipated merger or the parties involved in the merger (as the case may be) any such party may, within 14 days of the date of the notice, apply to the Minister for the anticipated merger, if carried into effect, or the merger to be exempted from the section 54 prohibition on the ground of any public interest consideration.
[23/2007]
(4) The decision of the Minister under subsection (3) is final.
(5) Where the Minister exempts an anticipated merger or a merger under subsection (3), the Commission may make a decision that —(a)
the section 54 prohibition will not be infringed by the anticipated merger, if carried into effect; or
(b)
the section 54 prohibition has not been infringed by the merger.[23/2007]
(6) The Minister may revoke the exemption of an anticipated merger or a merger granted under subsection (3) if the Minister has reasonable grounds for suspecting that the information on which the Minister based his or her decision was incomplete, false or misleading in a material particular.[23/2007]
Enforcement of decision of Commission
69.—(1) Where the Commission has made a decision that —(a)
any agreement has infringed the section 34 prohibition;
(b)
any conduct has infringed the section 47 prohibition;
(c)
any anticipated merger, if carried into effect, will infringe the section 54 prohibition; or
(d)
any merger has infringed the section 54 prohibition,
the Commission may give to such person as it thinks appropriate such directions as it considers appropriate to bring the infringement or the circumstances referred to in paragraph (c) to an end and, where necessary, requiring that person to take such action as is specified in the direction to remedy, mitigate or eliminate any adverse effects of such infringement or circumstances and to prevent the recurrence of such infringement or circumstances.
[23/2007]
(2) A direction referred to in subsection (1) may, in particular, include provisions —(a)
where the decision is that any agreement has infringed the section 34 prohibition, requiring parties to the agreement to modify or terminate the agreement;
(b)
where the decision is that any conduct has infringed the section 47 prohibition, requiring the person concerned to modify or cease the conduct;
(c)
where the decision is that any anticipated merger, if carried into effect, will infringe the section 54 prohibition —(i)
prohibiting the anticipated merger from being carried into effect;
(ii)
requiring any parties to any agreement that is directly related and necessary to the implementation of the merger (which would result from the anticipated merger being carried into effect) to modify or terminate the agreement, even though the agreement is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 45 or 46 (as the case may be) that the agreement is unlikely to infringe, or has not infringed, the section 34 prohibition; and
(iii)
requiring any person concerned with any conduct that is directly related and necessary to the implementation of the merger (which would result from the anticipated merger being carried into effect) to modify or cease that conduct, even though the conduct is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 52 or 53 (as the case may be) that the conduct is unlikely to infringe, or has not infringed, the section 47 prohibition;
(d)
where the decision is that any merger has infringed the section 54 prohibition —(i)
requiring the merger to be dissolved or modified in such manner as the Commission may direct;
(ii)
requiring any parties to any agreement that is directly related and necessary to the implementation of the merger to modify or terminate the agreement, even though the agreement is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 45 or 46 (as the case may be) that the agreement is unlikely to infringe, or has not infringed, the section 34 prohibition; and
(iii)
requiring any person concerned with any conduct that is directly related and necessary to the implementation of the merger to modify or cease that conduct, even though the conduct is excluded under paragraph 10 of the Third Schedule or the Commission has given guidance or a decision under section 52 or 53 (as the case may be) that the conduct is unlikely to infringe, or has not infringed, the section 47 prohibition;
(e)
where the decision is that any agreement has infringed the section 34 prohibition, any conduct has infringed the section 47 prohibition or any merger has infringed the section 54 prohibition, to pay to the Commission such financial penalty in respect of the infringement as the Commission may determine; and
(f)
in any case, requiring any party to an agreement that has infringed the section 34 prohibition, any person whose conduct has infringed the section 47 prohibition, any party to an anticipated merger which, if carried into effect, will infringe the section 54 prohibition or any party involved in a merger that has infringed the section 54 prohibition —(i)
to enter such legally enforceable agreements as may be specified by the Commission and designed to prevent or lessen the anti-competitive effects which have arisen;
(ii)
to dispose of such operations, assets or shares of such undertaking in such manner as may be specified by the Commission; and
(iii)
to provide a performance bond, guarantee or other form of security on such terms and conditions as the Commission may determine.[23/2007]
(3) For the purpose of subsection (2)(e), the Commission may impose a financial penalty only if it is satisfied that the infringement has been committed intentionally or negligently.[23/2007]
(4) No financial penalty fixed by the Commission under this section may exceed 10% or such other percentage of such turnover of the business of the undertaking in Singapore for each year of infringement for such period, up to a maximum of 3 years, as the Minister may, by order in the Gazette, prescribe.
(5) The Commission must, in any direction requiring the payment of a financial penalty, specify the date before which the financial penalty is to be paid, being a date not earlier than the end of the period within which an appeal against the direction may be brought under section 71.
(6) The Minister may, by order in the Gazette, prescribe the interest payable on the outstanding amount of any financial penalty imposed under subsection (2)(e) and for payment by instalment (as may be directed by the Commission in its discretion) of any financial penalty imposed under subsection (2)(e).[4/2010]
Notification
70. The Commission must, within 14 days of its making any decision or direction under this Part, notify any person affected by such decision or direction.
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
