Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The 2009 Amendment Act provided that directors or managers who caused or knowingly acquiesced in a firm engaging in cartel conduct will be personally liable to a fine not exceeding ZAR 500,000 (US$ 28.883,37) or imprisonment for a period not exceeding 10 years, or both. On 22 April 2016, the reform was finally given effect through presidential proclamation. Since 1 May 2016, any director of a firm …

Criminal sanctions

   According to Section 58 of the Competition Act, the Competition Tribunal may adopt any appropriate order in relation to a anticompetitive practice, including the cessation of anticompetitive practices, declaring the whole or any part of an agreement to be void; ordering access to an essential facility on terms reasonably required, ordering a party to supply or distribute goods or services to another party on terms reasonably required to end a prohibited practice. For a Complex Monopoly (Chapter 2A, Section 10A), the Competition Tribunal may issue a declaratory order against two or more firms (i) if at least one of the firm has at least 20% of the relevant market and (ii) they are engaged in complex monopoly conduct and their conduct has resulted in high entry barriers, exclusion of other firms from the market, excessive pricing within that market, refusal to supply other firms within that market or other market characteristics that indicate coordinated conduct. The order may consist in requiring, prohibiting or setting conditions upon any particular conduct by the firm, to the extent justifiable to mitigate or ameliorate the effect of the complex monopoly conduct on the market.

Cease and desist orders

The Competition Tribunal may impose a fine (administrative penalty) on persons convicted of anticompetitive practices. A fine may also be incurred in case of failure to respect an injunction ordered by the Competition Tribunal or the Competition Appeal Court. The fine may be up to 10% of the firm's annual turnover in the Republic and its exports from the Republic during the firm's preceding financial year. The Competition Tribunal must considerer such factors as the nature, duration, gravity and extent of the contravention, the behavior of the respondent, market circumstances, the level of profit derived from the contravention, the degree to which the respondent has cooperated with the Competition Commission and the Competition Tribunal and recidivism.

In May 2015, the Competition Commission issued Guidelines for the Determination of Administrative Penalties for Prohibited Practices which present the general methodology that the Commission will follow in determining administrative penalties for the purposes of concluding consent orders and settlement agreements and recommending an administrative penalty in a complaint referral before the Tribunal. The Guidelines define a six-step methodology (developed by the Competition Tribunal's case law) for the calculation of the administrative penalty that undertakings will be liable to pay for competition law infringements, namely:

- Step 1: Determination of the affected turnover in the base year;

- Step 2: Calculation of the base amount being that proportion of the affected turnover relied upon;

- Step 3: Multiplying the amount obtained in step 2 by the duration of the contravention;

- Step 4: Rounding off the figure obtained in step 3 if it exceeds the cap provided for by Section 59(2) of the Act (10% of the firm's annual turnover);

- Step 5: Considering factors that might mitigate and/or aggravate the amount reached in step 4, by way of a discount or premium expressed as a percentage of that amount that is either subtracted from or added to it; and

- Step 6: Rounding off this amount if it exceeds the cap provided for in Section 59(2) of the Act.

The Guidelines specify that where appropriate, the amount calculated in terms of the above methodology may be further adjusted by application of settlement discounts and, in exceptional circumstances, the firm's inability to pay.

Before the Competition Amendment Act of 2018, certain “first time” offenders were exempted from fines. The amended provisions repealed that so-called “yellow card” system and also raised the ceiling of the fine for repeat offenders from up to 10 to up to 25% of their annual turnover.

Fines

The Competition Tribunal recognizes the power of the Competition Commission to grant immunity, which is set out in its “Corporate Leniency Policy”. It is aimed at encouraging parties to an anticompetitive practice to freely report their practices. In practice, immunity means that the Commission would not subject the successful applicant to adjudication before the Tribunal for its involvement in the cartel activity if it denounces the others. Immunity is conditional: the Competition Commission will give the applicant total immunity after it has completed its investigation and referred the matter to the Tribunal and once a final determination has been made by the Tribunal or the Appeal Court provided the applicant has met the conditions set forth by the Commission on a continuous basis throughout the proceedings. Those conditions principally concern the provision of information and cooperation during the investigation, and the cessation of the unlawful practices.

Under Section 49E,  the Competition Commission must develop, and publish in the Gazette, its policy on leniency, including the types of leniency that may be granted, criteria for granting leniency, the procedures for application and the possible conditions that may be attached to a decision to grant leniency. The Competition Commission may grant leniency, with or without conditions,according to its leniency policy.

Leniency

The 2009 Amendment Act provided that directors or managers who caused or knowingly acquiesced in a firm engaging in cartel conduct will be personally liable to a fine not exceeding ZAR 500,000 (US$ 28.883,37) or imprisonment for a period not exceeding 10 years, or both. On 22 April 2016, the reform was finally given effect through presidential proclamation. Since 1 May 2016, any director of a firm or person engaged or purporting to be engaged by a firm in a position having management authority within the firm, who caused said firm to engage in a prohibited practice in terms of Section 4(1)(b) or who knowingly acquiesced in the firm engaging in a prohibited practice in terms of section 4(1)(b) may face the aforementioned criminal sanctions. The authority in charge of the enforcement of the criminal provisions of the Competition Act is the National Prosecuting Authority (NPA). However the Competition Commission may make submissions for the lenient treatment of certain individuals which are not binding on the NPA (Section 73A(4)(b)).

Global Competition Law

1259. Criminal sanctions

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Les notions juridiques connexes

1259. Criminal sanctions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise