Section 1
These Regulations may be cited as the Competition Regulations, 2020 and shall be deemed to have commenced on 1st January 2020.
Interpretation 2.
In these Regulations, unless the context otherwise requires -
"confidential information" means -
(a)
commercial information the disclosure of which would, or might, in the opinion of the Commission, significantly harm the legitimate business interests of the undertaking to which it relates;
(b)
information relating to the private affairs of an individual the disclosure of which would, or might, in the opinion of the Commission, significantly harm the individual's interests; or
(c)
information the disclosure of which would, in the opinion of the
Commission, be contrary to the public interest;
"internal document" means -
( a)
a document -
(i)
produced by the Commission or any other public authority; or
(8)
between such other public authorities; or 62
(b)
a document produced by any person retained under a contract for services by the Commission or any other public authority in connection with such a contract;
"public authority" includes -
(a)
a court or tribunal and any person or body exercising functions of a public nature; and
(b)
in any country or territory outside Brunei Darussalam, a court or tribunal and any person or body which appears to the Commission to be exercising functions of a public nature;
"working day" means any day other than a Friday, Sunday or public holiday;
"writing" includes text that is -
(c)
capable of being used for subsequent reference.
PART2
PROPOSED DECISIONS IN RESPECT OF INVESTIGATIONS
Proposed infringement decision 3.
Where an authorised officer has conducted an investigation into any agreement or conduct and the Commission proposes to make a decision that the section I I prohibition or the section 21 prohibition has been infringed, as the case may be, the Commission shall -
(a)
give notice of this to each person whom the Commission considers is or was a party to the agreement, or is or was engaged in the conduct, as the case may be, which the Commission considers has infringed a prohibition; and
(b)
state in the notice which prohibition the Commission considers has been infringed.
Notices, access to file and representations 4.
(b)
the period within which a relevant person may make representations to the Commission, which shall be in the form of a written statement, identifying the information contained in the notice which that relevant person considers the
Commission should treat as confidential information and explaining why he considers the Commission should treat such information as confidential information;
and
(c)
the period within which a relevant person may submit a written statement to the Commission on the matters referred to in the notice.
(2)
The Commission shall give a relevant person a reasonable opportunity to inspect the documents in the Commission's file that relate to the matters referred to in the notice given to that relevant person, except that the Commission may withhold any document -
(3)
Where, in his written statement on the matters referred to in a notice given to a relevant person, that relevant person requests to make oral representations to the
Commission on such matters, the Commission may give that relevant person a reasonable opportunity to make the oral representations.
(4)
Where, at the end of the period referred to in sub-regulation (I )(c), no written statement on the matters referred to in a notice given to a relevant person have been made by that relevant person, the Commission may proceed with its proposed decision in the absence of such statement.
(5)
Where the Commission has given a relevant person a reasonable opportunity to make oral representations under sub-regulation (3) but no oral representations have been made, the Commission may proceed with its proposed decision in the absence of such representations.
(6)
Nothing in sub-regulation
(l)
shall be construed as restricting the application of regulation 21(2), (3), (5) and (6).
(7)
In this regulation, "relevant person" means a person to whom notice is required to be given under regulation 3.
PART3
DECISIONS FOLLOWING APPLICATIONS AND INVESTIGATIONS
Notice of decision 5.
(I)
Where the Commission has made a decision that the section 11 prohibition has been infringed or a decision that the section 21 prohibition has been infringed, it shall -
64
(a)
give notice of the decision to each person whom the Commission considers is or was a party to the agreement, or is or was engaged in the conduct, which is the subject of the decision, stating the facts on which the Commission bases the decision and the Commission's reasons for making the decision; and
(2)
Where the Commission has made a decision that there are no grounds for action in respect of -
( a)
an agreement because the conditions of the section 11 prohibition are not met or because the agreement is excluded under section 12 or exempted under section 13 or 15; or
(b)
any conduct because the conditions of the section 21 prohibition are not met or because the conduct is excluded under section 22, the Commission -
(A)
any person whom the Commission considers is or was a party to the agreement, or is or was engaged in conduct, against whom any of the powers of investigation in the Order have been exercised; and
(B)
such other person as the Commission thinks appropriate, stating the facts on which the Commission bases the decision and the Commission's reasons for making the decision; and
(ii)
may publish the decision in such manner as the Commission may direct.
PART4
DIRECTIONS
Directions under section 40 6.
(1)
Subject to sub-regulation (2), if the Commission proposes to give a direction under section 40, it shall give each person to whom it proposes to give the direction a reasonable opportunity to inspect the documents in the Commission's file relating to the proposed direction.
(2)
The Commission may withhold any document -
(3)
When giving a person an opportunity to make representations under section 40(3)(b), the Commission shall specify the period within which that person may make the representations.
(4)
Where the Commission gives a direction to a person under section 40, it shall at the same time inform that person in writing of the facts on which it bases the direction and its reasons for giving the direction, and it shall publish the direction.
Directions under section 42 7.
(1)
Where the Commission proposes to give such person as it thinks appropriate any direction referred to in section 42(1 ), the Commission shall give notice to that person of the action it proposes to take and its reasons therefor.
(2)
Regulation 4, except regulation 4(1)(a), applies, with the necessary modifications, to a notice referred to in sub-regulation (I).
(3)
Where the Commission gives a direction to a person under section 42 (including the payment of any financial penalty), it shall at the same time inform that person in writing of its reasons for giving the direction, and it shall publish the direction.
PARTS
BLOCK EXEMPTIONS
Proposed cancellation of block exemption 8.
(I)
If the Commission proposes to make a decision for or in relation to the cancellation of a block exemption in respect of an agreement -
(2)
The notice referred to in sub-regulation (I)( a) shall be given to each person whom the Commission considers is or was a party to the agreement.
Notices, access to file and representations 9.
(b)
the period within which a relevant person may make representations to the Commission, which shall be in the form of a written statement, identifying the information contained in the notice which that relevant person considers the
Commission should treat as confidential information and explaining why he considers the Commission should treat the information as confidential information;
and
(c)
the period within which a relevant person may submit a written statement to the Commission on the matters referred to in the notice.
(2)
The Commission shall give a relevant person a reasonable opportunity to inspect the documents in the Commission's file that relate to the matters referred to in the notice given to that relevant person, except that the Commission may withhold any document-
(3)
Where, in his written statement on the matters referred to in a notice given to a relevant person, that relevant person requests to make oral representations to the
Commission on such matters, the Commission may give that relevant person a reasonable opportunity to make such oral representations.
(4)
Where, at the end of the period referred to in sub-regulation (l)(c), no written statement on the matters referred to in a notice given to a relevant person have been made by that relevant person, the Commission may proceed with its proposed decision in the absence of such statement.
(5)
Where the Commission has given a relevant person a reasonable opportunity to make oral representations under sub-regulation (3) but no oral representations have been made, the Commission may proceed with its proposed decision in the absence of such representations.
(6)
Nothing in sub-regulation (I )(b) shall be construed as restricting the application of regulation 21 (2), (3), (5) and (6).
(7)
In this regulation, "relevant person'' means a person to whom notice is required to be given under regulation 8.
Notice of cancellation of block exemption 10.
Where the Commission has made a decision for or in relation to the cancellation of a block exemption in respect of an agreement, it shall -
67
(a)
give notice of the decision to each person whom the Commission considers is or was a party to the agreement, stating the facts on which the
Commission bases the decision and the Commission's reasons for making the decision; and
(b)
publish the decision in such manner as the Commission may direct.
PART6
EXERCISE OF POWERS OF INVESTIGATION
Search warrants 11.
A warrant under section 38 shall -
(1)
A list of all things taken in the course of any entry to any premises under the
Order and of the places in which they are respectively produced or found shall be prepared or caused to be prepared and signed by the authorised officer entering the premises.
(2)
The occupier of the premises entered or some person in his behalf shall in every instance be permitted to attend during the entry, and a copy of the list prepared and signed under sub-regulation ( 1) shall be delivered to that occupier or person at his request, as soon as practicable.
Legal advice during investigations 13.
(1)
An authorised officer shall grant a request of the occupier of premises entered by the authorised officer to allow a reasonable time for the occupier's professional legal adviser to arrive at the premises before the investigation continues, if
(b)
the authorised officer is satisfied that such conditions as he considers appropriate to impose in granting the occupier's request are, or will be, complied with.
(2)
In sub-regulation(]), "a reasonable time" means such period of time as the authorised officer considers is reasonable in the circumstances.
(3)
A person required by the Commission under section 36 to provide specified information or an explanation of a specified document in person may be accompanied by a professional legal adviser.
PART7
GENERAL
Reliance on exclusions and exemptions in Order 14.
Any undertaking claiming the benefit of any -
(a)
exclusion from the section 11 prohibition or the section 21 prohibition specified in the Third Schedule to the Order; or
(b)
exemption from the section 11 prohibition under a block exemption order made pursuant to section 15, shall bear the burden of proving that the conditions relating thereto have been satisfied.
Forms 15.
The forms for the purpose of submission of any information or documents to the
Commission under these Regulations shall be in such form as the Commission may determine.
Directions as to forms 16.
(1)
The form shall be completed and submitted in accordance with such directions as are specified in that form or by the Commission.
(2)
The Commission may, in its absolute discretion, refuse to accept any form that is not completed or submitted in accordance with these Regulations.
Directions as to documents submitted to Commission 17.
(l)
Any document submitted to the Commission shall be in accordance with such directions as are specified in the form for which the document is required or by the
Commission.
(2)
Every document, if not in the Malay or English language, shall be accompanied by a translation thereof in either such language -
(b)
verified by the affidavit of a person qualified to translate it,
69
BRUNEI DARUSSALAM GOVERNMENT GAZETTE before it may be received, filed or used by the Commission.
Notices: general 18.
(I)
Any notice required to be given to any person under the Order or these
Regulations may be -
(2)
Where the Order or these Regulations require the Commission to give any notice to any person and -
(a)
the Commission has taken the steps referred to in sub-regulation (1) to give notice to that person but has been unable to give such notice or in the
Commission's opinion there is doubt that it has been able to give such notice; or
(b)
the Commission is of the view that none of the steps referred to m sub-regulation (1 ), if taken, would give the required notice to that person, the
Commission may, instead, take one or both of the steps specified m sub-regulation (3).
(3)
The steps specified for the purposes of sub-regulation (2) are as follows -
(a)
publish a summary of the notice by means of entry in the register maintained by the Commission under regulation 23; and
(b)
cause a reference to the summary of the notice published in that register to be published in at least one national daily newspaper.
(4)
Except where sub-regulation (2) applies, where the Order or these
Regulations allow or require notice to be given to a person, the notice shall be treated as if it had been received by or served on that person -
(c)
when sent by ordinary post, on the working day after the day on which it was posted;
(d)
in the case ofa facsimile transmitted on a working day, on that day, or in any other case, on the working day after the day on which it is transmitted; or 70
(e)
in the case of electronic mail or similar means, on the working day after the day on which it is transmitted.
(5)
Where sub-regulation (2) applies, the notice shall be treated as having been given on the date of its publication in accordance with sub-regulation (3)(a) and (b).
( 6) Any notice given under the Order or these Regulations shall be in writing.
Notices: associations of undertakings 19.
(I)
Where the Order or these Regulations require the Commission to give notice of any matter to an association of undertakings, the Commission shall give the notice to the director, secretary, manager or other similar authorised officer of the association on its behalf.
(2)
Where the Order or these Regulations require the Commission to give notice of any matter to each of more than twenty members of an association of undertakings, the
Commission may, instead of giving such notice to any such member, give the notice to the director, secretary, manager or other similar authorised officer of the association on that member's behalf, provided that individual notice shall be given to any member who has made an application in respect of the agreement or conduct to which the notice relates.
Time 20.
(I)
Where an act is required to be done in accordance with these Regulations within a specified period after or from a specified date, the period begins immediately after that date.
(2)
Where an act is required to be done in accordance with these Regulations within or not less than a specified period before a specified date, the period ends immediately before that date.
(3)
Where the time prescribed by these Regulations for doing any act expires on a day which is not a working day, the act is in time if done at or before 4.30 p.m. on the next following working day.
(4)
Where an act done in accordance with these Regulations is done on a day which is not a working day, the act shall be treated as done on the next following working day.
Information to be treated as confidential 21.
(1)
Where a person submitting any information or document to the
Commission considers the information or, in the case of a document, any of the information contained therein, as confidential information under section 70(1)(b), that person shall, at the time of submitting the information or document -
71
(a)
in the case of such information, identify to the Commission the confidential information and provide a written statement explaining why the information is confidential information; and
(i)
a confidential version of the document containing and clearly identifying the confidential information;
(ii)
a non-confidential version of the document, in which the confidential information has been removed in the manner specified by the
Commission; and
(2)
Where a person has identified any information he is submitting to the
Commission as being confidential information, or any document he is submitting to the
Commission as containing confidential information, but the person does not provide the
Commission with the written statement referred to in sub-regulation (l)(a) or (b)(iii), as the case may be, the Commission may give notice to the person submitting the information or document to provide such written statement within such time limit as the Commission considers appropriate.
(3)
Where a written statement has been given to the Commission to explain why any information submitted to the
Commission is confidential information, the
Commission may, in its discretion, give notice to the person submitting the information or document to provide written clarification of the written statement within such time limit as the Commission considers appropriate.
(4)
Where the person submitting the information or document fails to provide the
Commission with the written statement referred in sub-regulation (l)(a) or (b)(iii) or with the written clarification referred to in sub-regulation (3), as the case may be, within the time limit specified by the Commission, the information submitted shall be treated as not falling within section 70(1)(b).
(5)
Where the Commission proposes to disclose information which has been submitted to the Commission and identified as confidential information under section 70(1)(b), the Commission may -
(a)
inform the person who submitted the information or document or the person from whom the information or document originated, of the Commission's proposed action; and
(b)
give that person a reasonable opportunity to make representations to the
Commission on the Commission's proposed action.
(6)
For the avoidance of doubt, nothing in this regulation shall be construed as preventing the Commission from having regard to any information which is, or any document containing information which is, confidential information, or any part thereof, in its determination of any matter for which the confidential information is required.
(7)
This regulation does not apply in any case where regulation 4, 7 or 9 applies, except as may be provided in such regulation.
Consultation 22.
( 1) Where the Commission is required to consult a person under these Regulations, it shall-
(b)
state in that notice the action the Commission proposes to take, its reasons for proposing such action and the period within which that person may make written representations to the Commission on these matters.
(2)
The Commission shall have the discretion to consult with such persons as it thinks appropriate, if the Commission feels that this would be advantageous, necessary or convenient for it to carry on its functions or discharge its duties under the Order.
(3)
Where the Commission proposes to consult the public in exercise of its discretion to do so under these Regulations, it shall publish, in such manner as the
Commission thinks appropriate, a notice stating the action it proposes to take, its reasons for proposing such action and the period within which written representations may be made to the Commission on these matters.
Register 23.
(1)
The Commission shall maintain a register in which there shall be entered -
(c)
all directions (including the payment of any financial penalty) that the
Commission is required to publish under these Regulations; and
( d)
all summaries of notices published under regulation 18(3)( a).