The Competition Commission of Mauritius (‘CCM’) became operational in November 2009. The Competition Act 2007 mandates the CCM to regulate and promote competition in Mauritius. The CCM has two distinct arms: an investigative arm, which is represented by the Office of the Executive Director and an adjudicative arm, which is constituted of five Commissioners.
The Executive Director has the main function of investigating restrictive business practices, namely cartels, abuse of monopoly situations and mergers...
The Executive Director has the main function of investigating restrictive business practices namely cartels, abuse of monopoly situations and mergers that may result in substantial lessening of competition. The Executive Director is also mandated to carry out studies to assess the effectiveness of competition in individual sectors as well as to promote the provisions of the Competition Act and the activities of the CCM.
Effects of competition
The Executive Director initiates enforcement actions to any competition issue that could potentially fall within the purview of the Competition Act. Competition issues can be generated through an external complaint or internally (for example, matters brought to the CCM’s knowledge while undertaking press reviews). The CCM maintains a complaint register that records all the complaints made to the CCM and that is available for consultation by interested parties. Complainants can request for confidentiality and/or anonymity, in which case no or limited information is disclosed in the complaint register.
Complaints are scrutinised and a decision is made as to whether these matters raise any competition concern likely to fall under the purview of the CCM. The Executive Director can only investigate matters where he has reasonable grounds to believe that a restrictive business practice is occurring or about to occur. Once, the Executive Director has established that there are reasonable grounds to believe that a restrictive business practice is occurring or likely to occur, he launches an investigation.
The Executive Director normally issues a media release to publicly announce the launching of an investigation, except for confidential matters such as cartel-related investigations where public disclosure can compromise the process of evidence gathering. During an investigation, the Executive Director gathers information through formal interviews and orders for production of information. In certain cases, the CCM can also, after having obtained a search warrant from a Magistrate, enter and search premises to secure evidence, which the Executive Director believes may otherwise be suppressed or destroyed.
Parties who are the subject of an investigation have the opportunity to submit their views on the alleged anticompetitive practice(s) being investigated at any stage of the investigative process. They are formally requested to do so at two main stages of the investigation. These are: (i) when the Statement of Issues, a document that sets out the preliminary competition concerns of the investigation, is issued; and (ii) in the Provisional Findings Report, which contains the provisional findings of the Executive Director.
Upon completion of an investigation and account taken of the views submitted by parties, the Executive Director submits his conclusive findings, contained in a Report of Investigation to the Commissioners for their determination. Upon receipt of the Report of investigation, the Commissioners hold hearings at which parties under investigation as well as witnesses are given the opportunity to support or contest the case put by the Executive Director.
After hearing parties, the Commissioners then determine the case and decide whether they should impose directions, and in certain cases, financial penalties on parties that are found to breach the Act. Directions cover structural as well as behavioural measures. Structural remedies require a change in the ownership of the enterprise or its assets while behavioural measures aim at regulating the enterprise’s conduct on the market.
Directions and orders for paying fines are published in the form of formal decisions, which are then published in the Government Gazette. Directions and orders are subject to appeal before the Supreme Court, which has extensive powers, including the power to review the whole decision and remit it to the Commission with its opinion on the matter.
There are two exceptions to the normal investigative procedure detailed above: undertakings and leniency applications. In both cases, enterprises under investigation offer to collaborate during the investigative process which expedites the process. Through undertakings, the Competition Act offers enterprises the opportunity to voluntary commit to applying measures which address the competition concerns which conduct under investigation might cause. Leniency applications can be made within the context of investigations into collusive agreements only. A party applying for leniency needs to provide information and evidence, in exchange of reduced penalties, which facilitates the establishment of the infringement subject of the investigation.
After 8 years of existence, the CCM has successfully dealt with more than 40 investigations, 4 market studies and over 200 enquiries in various traditional and modern sectors of the Mauritian economy.
This article forms part of a series of articles in a collaboration between the Competition Commission of Mauritius and Le Defi Media, in an attempt to create better awareness of competition law in Mauritius.
Issue No. 2