OECD kpcdb

1. Scope

 

Mergers are covered under Section 72 and Section 73 under Part 6 of the CCD2010- Section 72 deals with Mergers in general while Section 73 deals with Merger outside Fiji.

 

Section 72 stipulates that a person must not acquire, directly or indirectly, any shares in the capital, or any assets, of a body co‑operate if–

 

a)  as a result of the acquisition, the person would be, or be likely to be, in a position to dominate a market for goods or services; or

b)  in a case where the person is in a position to dominate a market for goods or services, the body corporate is likely to be, a competitor of the person or of a body corporate related to the person and the acquisition would substantially strengthen the power of the person to dominate that market.

 

If the merger or acquisition leads to dominant position than the merger or acquisition will not be endorsed by the Commission. However, if they wish to challenge then it is challenged in Court.

2. Notification

There is no compulsory notification procedure. However, as mentioned above the acquisition of shares or assets will not come into force unless and until the acquiring person has been granted an authorisation to acquire the shares or assets.

3. Procedural rules

The person shall apply for the grant of authorisation before the expiration of 14 days after the contract was entered into.

 

According to Section 150C, upon reception of an application for an authorisation, the Commission must make a determination in writing either granting the authorisation or dismissing the application. The Commission shall make its determination based on whether the proposed transaction results or is likely to result in a benefit to the public and that the benefit outweighs or would outweigh the detriment to the public. The Commission has 90 days to take an authorisation decision.

4. Assessment

HHI is usually used to provide safe harbour within which a merger is unlikely to identify competition concerns. The Commission applies the substantial lessening of competition test to block a merger. For any merger or acquisition, the entities are required to seek approval of FCCC in writing. To date, the Commission has not blocked any proposed mergers.

5. Remedies and sanctions

Any party who contravenes Section 72 is guilty of an offence punishable upon conviction by fine, pecuniary penalty and/or imprisonment.

 

For anti-competitive mergers, remedies such as undertaking and calling for open bid are possible. The Commission has imposed/accepted conditions on a proposed merger.

 

 

* This information is based on Competition Law in Asia-Pacific: A Guide to Selected Jurisdictions (2018).