Rules Relating to Appeals Arising From Market Inquiries and Rules Relating to a Divestiture Recommendation by the Competition Commission
The Minister of Trade, Industry and Competition is today publishing rules relating to appeals arising from market inquiries and rules relating to a divestiture recommendation by the Competition Commission (in accordance with the Competition Act, 89 of 1998).
The Competition Commission conducts market inquiries to assess the overall state of competition, competition levels and market structure for specific goods or services. Market Inquiries undertaken include the Banking Market Inquiry, the Data Market Inquiry, the Grocery Retail Market Inquiry, the Healthcare Inquiry, the LPG Market Inquiry and the Public Passenger Market Inquiry.
In 2019, new provisions in the Competition Act were signed into law, which provide additional powers to the regulators to deal with structural features of a market that inhibit the entry of new businesses, black-owned firms and small businesses in markets.
If a Market Inquiry reveals adverse effects on competition, the Competition Commission must determine appropriate measures to address such effects.
Parties who are materially and adversely affected by determinations or decisions arising from Market Inquiries – can appeal these determinations or decisions to the Competition Tribunal. The set of rules published today provide guidelines for parties intending to make appeals. They have been finalized taking into account public comments made on the Draft Rules which had previously been gazetted for public comment.
Where the Competition Commission has conducted a Market Inquiry and makes a recommendation for divestiture, it is required to make the recommendation to the Competition Tribunal for an order.
The Commission has to file a notice of motion which includes the grounds for the recommendation, the material facts and points of law that the Commission relied on, and reasons why the recommendation to divest is reasonable and practicable. The Commission has to serve its notice of motion and affidavit with each respondent within 5 days of filing them so that respondents who wish to oppose the Commission’s recommendation have an opportunity to do so.
Speaking at Parliament today, Minister of Trade, Industry and Competition Ebrahim Patel said “The rules on Market Inquiries published today, provide more detail and clarity on the process to be followed when firms seek to challenge findings or decisions of the Competition Commission. It is part of ensuring a fair balance between the responsibilities of the regulators to tackle structural challenges to economic inclusion, and the rights of companies to fair process.”
These Rules will become effective upon their publication in the Government Gazette.
Source: Government of South Africa