On 30 March, the Hong Kong Competition Commission (“the CC”) published its revised draft guidelines (“the Revised Draft Guidelines”) under the Competition Ordinance (“the Ordinance”).
The Revised Draft Guidelines set out in draft the CC’s interpretation of the First and Second Conduct Rules, as well as describing how the CC intends to approach complaints, undertake investigations and deal with applications for decisions on the applicability of the Conduct Rules.
The Revised Draft Guidelines incorporate a number of comments provided in response to the CC’s consultation on its initial draft guidelines, which were published for consultation in October last year. In total, the CC received 64 submissions from 49 separate parties (including two submissions made by Eversheds).
Among other things, the Revised Draft Guidelines:
- clarify the CC’s approach to resale price maintenance;
- provide greater clarity around those agreements and conduct deemed to restrict competition, irrespective of their actual effect;
- provide additional guidance on the application of the law to specific types of agreement, including joint ventures, franchise agreements and selective distribution systems;
- confirm the CC’s approach not to adopt market share thresholds in assessing market power and the effects of anti-competitive conduct.
The publication of the Revised Draft Guidelines is an important step towards the implementation of the Ordinance. The Revised Draft Guidelines will now be presented to the Legislative Council for consultation in late April. While not legally binding, the guidelines will assist businesses assess the likely approach the CC will take to particular types of conduct and the procedures it is likely to adopt when investigating infringements.