a tripartite report - Unctad

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It is recommended that the Commission
be given the necessary capital expenditure
funds to procure the much-needed
tasks effectively.
3.2 Assessment of Cases
The Commission has in place the following documented
guidelines on the handling and assessment
of competition and consumer protection
cases: (i) the Enforcement Manual; (ii) Operations
Manual on Merger and Monopolies; and (iii) Guide
on consumer protection matters. The guidelines
are in line with international best practice, with
some of them based on UNCTAD and ICN models.
The Enforcement Manual outlines the administrative
enforcement procedures and practices for
handling cases under the new Act.
According to the Manual, the following are the three
underlying principles behind the Commission’s enforcement
activities which are aimed at providing
standards for enforcing the law in order to encourage
greater levels of consistency, transparency and
accountability on its part: (i) primary advocate of
competition and consumer protection; (ii) balanced
enforcement; and (iii) cooperation and consultation.
Primary advocate of competition and consumer
protection: the Commission has the power to
intervene in all sectors of the economy in ensuring
compliance in relation to its mandate under
the Act through the use of enforcement tools
behavioural change, through undertakings and
consent agreements.
Balanced enforcement: the Commission considers
matters from the perspective of focusing on those
matters where enforcement measures will result in
a broader market impact by increasing compliance
in a particular sector. The Commission strives to
be balanced in its enforcement strategy to seek to
foster behaviour change, stop ongoing conduct,
and secure future compliance and not simply punish
wrongdoing. However where legal contraventions
against offenders or prosecute where necessary.
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Cooperation and consultation: the Commission
values input it receives from other national
regulators and its counterpart agencies from
other jurisdictions, as well as from market players.
In its consultations with consumers, traders
and market players in general, the Commission
endeavours to promote voluntary compliance
and transparency.
For the purposes of implementing a fair approach
to compliance and enforcement, and making
strategic use of available resources, the Commission
applies the following general criteria to
all enforcement activities: (i) proportionality (any
enforcement action taken should be proportionate
to the legal contravention and the seriousness
of the breach); (ii) consistency (a consistent approach
in similar circumstances should be taken
to achieve consistent outcomes; (iii) transparency
(enforcement measure should be applied clearly
and openly so that business and consumers know
what is expected of them and what they can expect
when in contravention of the law; and (iv) targeting
(effective use of limited resources should
be a big priority and may be achieved through
the targeting of issues in line with risks, new and
emerging issues and enforcement priorities – the
Commission however as much as possible handles
all matters that raise concerns under the Act).
The Commission uses the following criteria to determine
whether a matter is appropriate for investigation
with a view to enforcement action (not all
criteria need to be met for a matter to be authorized
for investigation): (i) jurisdiction (this entails
assessing whether the alleged conduct falls within
the Commission’s mandate as provided for under
the Act); (ii) detriment (this entails assessing
the harm or potential harm the alleged conduct
results into); (iii) culpability and history of alleged
offender (this entails considering the blameworthiness
of the offender and his past conduct vis-à-vis
competition and consumer matters); (iv) gravity of
conduct (here the Commission considers the seriousness
of the conduct by considering whether
the conduct is systematic, deliberate and not accidental,
and a manifest or deliberate breach); and
(v) likelihood of success of enforcement action.
Diagram 1 below provides a summary of the factors
that the Commission takes into account in
arriving at a decision to investigate a matter and
investigate various enforcement options:
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