OECD kpcdb

1. Competition Law

The Commerce Commission Act 2010 (the “CCA2010”) was the main legal instrument on competition policy in Fiji. The Act has been changed to Fijian Competition and Consumer Commission Act as of 1 August 2017 (FCCCA2010) . 

 

The CCA2010 has purposes of promoting the interests of consumers; promoting the effective and efficient development of industry, trade and commerce; securing effective competition in industry, trade and commerce; and ensuring equitable returns for businesses with fair and reasonable prices charged to consumers.

 

The CCA2010 prohibits conducts for being restrictive of competition In Part 6 (Restrictive Trade Practice) of the CCA2010 – which lists and specifies each type of restrictive trade practices: agreements restricting competition; agreements in relation to prices; covenant restricting competition; covenant in relation to prices; misuse of market power; anti-competitive conducts; exclusive dealing; resale price maintenance.

 

The Act is modelled on those of Australia and New Zealand.

 

Fiji follows the common law tradition. 

 

General exclusion: 

 

There is no sector excluded or exempted from the application of the CCA2010. State-owned enterprises are not exempt from the application of the Act.

 

Extra-territorial application: The CCA2010 has extraterritorial reach. Section 3 covers acts or omissions within Fiji, but also provides that acts or omissions outside of Fiji are covered by the competition provisions. 

 

2. Fiji Competition and Consumer Commission

The Fiji Commerce Commission was renamed to Fijian Competition and Consumer Commission on 1 August 2017 (the “Commission”) has the sole power to regulate competition in Fiji, enforcing the FCCCA 2010. It is an independent statutory body of the Fiji Ministry of Industry, Trade and Tourism. 

 

In essence, the Commission investigates anti-competitive matters and the High Court adjudicates on both substance and sanctions. Thus, there exists a judicial model in Fiji.

 

The Commission’s objectives are those set out in the CCA2010 (see previous section) as well as to promote effective competition in the interests of consumers, facilitate an approximate balance between efficiency and environmental and social considerations as well as to ensure non-discriminatory access to monopoly and near monopoly infrastructure or services.

 

The Fijian cabinet may request the Commission to carry its investigations in the major sectors of the economy. However any such investigations are conducted independently by the Commission. 

 

The Commission publishes an annual report and is answerable to the Parliament Public Accounts Committee for any clarifications or scrutiny. Annual Plan is submitted to line Ministry. 

 

The Commission is also tasked with other responsibilities such as consumer protection, being a multi-sector regulator, a price regulator for selected goods and services as well as unfair trading practices. 

 

Organisational structure of Commission: The Commission is located in Raiwaqa, and has 55 staff as of 2016. The Commission has 2 regional offices. It had an annual budget in the financial year 2016-2017 as USD 2.4 million.

 

According to Section 8 of the CCA2010, the Commission consists of not less than 4 or more than 6 members. The members are appointed by the Minister for Industry, Trade and Tourism (the “Minister”) for up to 5 years, and be eligible for reappointment for a maximum of 3 years. One member shall be appointed as a Chairperson and another shall be appointed as a Deputy Chairperson. The Minister has the powers to dismiss a member due to incompetency, incapacity, misbehaviour and failure to comply with Section 10 of Act. 

 

The Commission has a Chief Executive Officer and consists of five departments reflecting its core activities: Fair Trading, Price Control and Monitoring, Legal Department, Regulated Industry and Corporate services.

 

Relationship with other regulators: There are no other sector regulators that have competition powers.

 

Competition advocacy: The Commission does all advocacy work on competition. The Commission conducts market/ sector studies in its jurisdiction. 

 

Until the year of 2016, six sector studies have been performed such as on the hardware sector, telecommunications sector, LPG sector, etc. If the study identifies an obstacle or a restriction to competition caused by an existing public policy, the study can include an opinion/recommendation to the government to remove or reduce such obstacle or restriction. However, new public policies that may have implications for competition are not subject to the Commission’s competition assessment. 

 

International co operation: The Commission has an MOU signed with ACCC and is discussing with other countries such as New Zealand regarding co operation agreement.

3. Investigation

Initiation of investigation: According to Sections 15(h) and 15(i), the Commission may initiate an investigation upon receiving complaints or on its own initiative.

 

Powers of investigation: Under Section 119 of CCA2010, the Commission can request for information either in writing or orally.

 

Section 126 gives an officer of the Commission the power to enter any premises the officer knows or reasonably suspects that the premise was used in connection with the contravention of the CCA2010; the power to search for, examine, take possession of or make copies of records relating to the violation of the CCA2010; and the power to make inquiries and examinations he may believe necessary.

 

However, Section 126 does not allow forcible entry by officers of the Commission unless a warrant is obtained. A Resident Magistrate, upon receiving and satisfied by the information from an Commission officer that there is reasonable cause to search, may issue a search warrant directing the Commission officer to enter the place specified in the search warrant for inspection. 

 

The Commission has carried out a number of unannounced inspections over the past 5 years based on Part 6 Restrictive Trade Practices investigations.

 

Failure to comply with investigation: Failure to furnish the requested information is an offence under Section 119 (4) of CCA2010. If the offender is a natural person, they may incur a fine of up to FJD 1,000 dollars (approximately USD 497) and imprisonment for up to 12 months, and if the offender is a body corporate, a fine of up to FJD 5,000 (approximately USD 2,485).

 

Under Section 128, any person who obstructs an inspector in the exercise of his powers under the CCA2010 shall be guilty of a criminal offence. Matters are filed for prosecution and the Court imposes the appropriate orders, either fine or compensation or both. Section 129(1A) provides that a person found guilty of an offence under the CCA2010 for which no other penalty is provided (such as Section 128 for obstruction of an inspector), is punishable upon conviction by the Court of a fine not exceeding FJD 5,000 (approximately USD 2,485) for a first offence and FJD 10,000 (approximately USD 4,970) for a second or subsequent offence. 

 

Procedural fairness: The Commission provides the party/parties under investigation for an antitrust infringement with opportunities to consult with the Commission with regard to significant legal, factual or procedural issues during the course of the investigation. The parties also have the right to be heard and present evidence before the imposition of any sanctions or remedies for having committed an antitrust infringement. 

 

Confidentiality: If the Commission proposes to disclose confidential information, it must first give the affected party a written notice informing it that they have the right to explain, within 28 days after the notice, why the confidential information should not be disclosed.

 

4. Remedies and sanctions

As mentioned above in Section I.2, Fiji has an adversarial system. This means that whilst the Commission undertakes the investigation it must bring such cases before the High Court for adjudication and it is for the Court to impose fines, pecuniary penalties or prison sentences (Section 129 of the CCA2010).

 

Remedies: Section 147 provides that in the case where a person has committed a contravention to the CCA2010, the Court may impose upon the aforementioned party a number of orders so as to reduce or repair the harm caused. This may take the form of an order for payment of the amount of the loss or damage, an order avoiding or refusing to enforce, in whole or part, a contract or instrument, an order for the variation of a contract or instrument, an order directing the refund of money or the return of property or any other order the Court may find appropriate.

 

Fine: According to Section 129, a person who contravenes, etc. a provision of Part 6 other than Section 67 (anti-competitive conducts) is guilty of an offence punishable on conviction by a fine not exceeding FJD10,000 (approximately USD 4,970). When it comes to an offence committed by a body corporate, the maximum penalty is FJD50,000 (approximately USD 24,853).

Pecuniary penalty: Section 144A stipulates that if the Court is satisfied that a person has contravened a provision of Part 6 (restrictive trade practices), the court may order the person to pay to the State pecuniary penalty. The pecuniary penalty for a physical person shall not exceed FJD 300,000 (approximately USD 149,118), and shall not exceed FJD1 million (approximately USD 497,060) for a body corporate.

 

Imprisonment: Section 129 sets forth that where a person is convicted of any offence against the CCA2010 and the court is of opinion that the offence was committed to defraud, that person shall be liable, in addition to or instead of any other penalty, to imprisonment for a term not exceeding 3 years. 

 

Injunction claims: Section 145 sets forth that if the Court is satisfied, on the application of the Commission that a person has engaged or is proposing to engage in conduct that constitutes or would constitute a contravention of a provision of the CCA2010, the Court may grant an injunction in such terms the court determines to be appropriate. Such injunction shall restrain a person from carrying on a business of supplying goods or services for a specified period except on specific terms and conditions.

5. Appeal

Decisions on antitrust infringements and mergers can be subject to judicial review before the High Court.

 

6. Private enforcement 

Private parties can take private legal action against a company for potential breach of the CCA2010, regardless of a decision of the Court on an action brought by the Commission (standalone actions).

 

Damages claims: Section 146 sets forth that a person who suffers loss or damage by an act or omission of another person that is a contravention of Part 6 (restrictive trade practice) of the CCA2010, may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention. An action for damages may be commenced at any time within 3 years after the date on which the cause of action occurred.

 

Injunction: Any person may apply for an injunction. If the Magistrate Court and High Court is satisfied, on the application of the injunction, that a person contravened a provision of the CCA2010, the Court may grant an injunction.