OECD kpcdb

1. Competition Law

 

The Pyidaungsu Hluttaw Law No. 9, 2015 (the “Competition Law”) was enacted in 24 February, 2015 and came into effect in February, 2017.

 

The objectives of the Competition Law are: (a) to prevent acts that injure of public interests through monopolisation or manipulation of prices by any individual or group with intent to endanger fair competition in economic activities, for the purpose of development of the national economy, (b) to control unfair market competition on the internal or external trade and economic development, (c) to prevent from abuse of dominant market power, and (d) to control the restrictive agreements and arrangements among businesses.

 

The Competition Law also prohibits "unfair competition" conduct, which includes practices such as misleading consumers, disclosing trade secrets, intimidating other business persons and defaming the reputation of another business. 

 

Myanmar follows the common law tradition. 

 

General exclusion: There is no sector excluded or exempted from the application of the Competition Law. State-owned enterprises are not exempt from the application of the Competition Law when conducting commercial activities in competition with private firms. However, under Section 8 (b), businesses essential for the benefit of the State and Small and Medium Enterprises (SMEs) can be exempted from the compliance of the Competition Law.

 

Extra-territorial application: The Competition Law is also applicable to firms located outside Myanmar whose behaviour directly affects competition and consumers in domestic markets. The Competition Law’s merger control provisions are also applicable to foreign mergers.

 

2. Myanmar Competition Commission

 

The Myanmar Competition Commission (the “MmCC”) is being prepared to establish and it is under the Ministry of Commerce. The MmCC’s main function is implementing competition policy.

 

As per Section 8, the MmCC’s powers and duties include (extract): (a) exempting from the compliance of this Law to businesses for the benefit of the State and SMEs, (b) specifying necessary forms, procedures and terms and conditions of application in order to obtain permission to co operate businesses or to restrain competition, (c) specifying market share, supply, amount of capital, number of share and magnitude of owned property relating to business causing detriment to competition, (d) determining market share, supply, amount of capital, number of share and magnitude of owned property relating to business assumed as monopolisation by the Commission, (e) directing a business to reduce the specified magnitude of market share that can cause detriment to competition in the market, (f) prohibiting by issuing notification of restriction on market share and sale promotion of any businessman who might monopolise, (g) assigning duty to investigate if the Commission suspects that there is a violation of the Competition Law, (h) advising the Government regarding competition, (i) performing the duties relating to competition assigned by the Government.

 

Regarding the decision making process, the MmCC will take all decisions as regards the investigation and then send the cases to the Court to adjudicate on infringements of the Competition Law. 

 

As per Section 9, the Commission shall report on accomplishment of its performance and development to the Government on a quarterly basis.

Organisational structure of MmCC: Currently, MmCC is in the process of being established and it is planned to be in operation in 2018 - thus competition matters are currently dealt by the Policy Division under the Ministry of Commerce. Competition Policy Division currently staffs 21 persons. 

 

Regarding the budget, the ministry shall take responsibility for the office work of the MmCC, Committees and the Working Groups. Also, the ministry shall bear the expenses of the Commission, Committees and working groups.

 

Section 5 sets forth that the Government shall form MmCC comprising of a Cabinet with a Chairman, Vice-Chairman, Secretary and professionals and suitable persons from the relevant Ministries, government departments, government organisations and non-governmental organisations as members. Some of the members of the Commission will be full-time and some will be part-time commissioners.

 

The Government may dismiss the Chairman or members of the Commission in the circumstances specified in law, namely including: being penalised, or imprisoned by any court due to a criminal offence, being identified as mentally ill as specified by the relevant law, being declared as insolvent by any court, integrity issue, and failure to properly perform duties specified by the law. 

 

Other regulators with competition powers: Current discussions in Parliament include the setting up of the Myanmar Communication Regulatory Commission as the sector regulator dealing with the issue of the Competition Law in the telecommunications sector.

 

According to the draft law, MmCC and Regulatory Commission will work together for telecom sector. 

 

Competition advocacy: The MmCC can conduct market/sector studies. If the study identifies an obstacle or a restriction to competition caused by an existing public policy, the study may include an opinion/recommendation to the government to remove/reduce such obstacle or restriction. The MmCC is required to submit advice to the Government through the Ministry. However, the Government has no obligation to follow the opinion/recommendation. 

 

International co operation: The MmCC has signed no international co operation agreement or MoU regarding competition law.

 

3. Investigation

 

Initiation of investigation: An investigation may be initiated if the Commission suspects that there is a violation of any prohibitions contained in the Competition Law or if a concrete complaint is received under Section 8 (j).

 

Powers of investigation: The MmCC may conduct investigations by forming an Investigation Committee (the “Committee”) comprising minimum of five members to maximum of nine members and by assigning a Chairman among them under Section 11 (a).

 

Section 12 stipulates that the functions and duties of Investigation Committee are:

 

a)  calling and examining for necessary evidence, document, financial evidence and concrete statement of reasons and calling and inquiring necessary witnesses for investigation matters;

b)  entering, inspecting and searching, in accordance with Competition Law, the building, land and workplace of any person being investigated or any other person who seems to be involved in connection with them. A court warrant is required to undertake such inspections without agreement of the company/person and forcibly entering premises;

c)  submitting report on findings of investigation and for enabling to take necessary action to the Commission;

 

Failure to comply with an investigation: Section 43 sets forth that any person who fails without any concrete reason to comply with the request of the Investigation Committee to submit any evidence, document of financial evidence or to appear for the examination as witness for investigation under this Law shall be punished, on conviction, with imprisonment for a term not exceeding three months or with fine not exceeding Kyat one hundred thousand.

 

Procedural fairness: The MmCC is currently preparing procedural guidelines explaining its investigative procedures. However, the MmCC will provide investigated parties with opportunities to consult with the MmCC on their rights, and to be heard and present evidence before the imposition of any sanctions or remedies for having committed an antitrust infringement. 

 

4. Remedies and Sanctions

 

Competition Law provides for both administrative measures and criminal sanctions.

 

Remedies and administrative sanctions: Under Section 34, the Committee may take the following actions for those who violate the orders, directives and procedures issued under the Competition Law: (i) warning, (ii) imposing specified fine, (iii) co ordinating with relevant Ministries to close the operation of business temporarily or permanently.

 

Criminal sanctions: When contravening Section 13 (Act of Restraint on Competition), Section 15 (Monopolisation on Market in Competition), and Section 31/Section 32 (Collaboration among Business), criminal sanctions including imprisonment or fines or both are available. The Commission will have to pursue criminal sanctions in the court. 

 

5. Appeal

 

As per Section 35 and Section 36, any person who is dissatisfied with the decision of the Committee may appeal to the MmCC within 60 days from the receiving date of such decision. The MmCC may confirm, amend or cancel the appealed Committee’s decision, and the decision of the MmCC shall be final and conclusive. This can be appealed to a higher court. 

 

6 Private enforcement

 

Damages claims: Private lawsuits to compensate for damages from breach of the Competition Law are available. Under Section 51, an aggrieved person may also sue any person being convicted in civil action for his loss under the Competition Law. Also, an aggrieved person can go directly to court to establish an infringement and a damage claim. Yet, if he/she gets the decision of the MmCC, it could have an effect on the damage claim