The Hong Kong Competition Commission (the Commission) published yesterday the final version of the guidelines under the Competition Ordinance (the Guidelines), in preparation for the imminent entry into full force of the Competition Ordinance (the Ordinance). In a press statement accompanying the publication, Ms. Anna Wu, the Commission’s Chairperson, described the release of the final Guidelines as a “major milestone on the road to the full commencement of the competition law”.

The Hong Kong Competition Commission (the Commission) published yesterday the final version of the guidelines under the Competition Ordinance (the Guidelines), in preparation for the imminent entry into full force of the Competition Ordinance (the Ordinance). In a press statement accompanying the publication, Ms. Anna Wu, the Commission’s Chairperson, described the release of the final Guidelines as a “major milestone on the road to the full commencement of the competition law”.

The Guidelines explain how the Commission intends to interpret and administer both the procedural and the substantive aspects of the Ordinance.

In terms of substantive rules, the Guidelines address  how the Commission will interpret:

  • the First Conduct Rule, which prohibits anti-competitive agreements and concerted practices;
  • the Second Conduct Rule, which prohibits the abuse of substantial market power; and
  • the Merger Rule, which prohibits mergers and acquisitions involving telecommunication carrier licensees that substantially lessen competition in Hong Kong.

In terms of procedural issues, the Guidelines address:

  • how complaints shall be made to the Commission about alleged anti-competitive conduct;
  • how the Commission will conduct investigations; and 
  • whether and, if so, how companies can apply to the Commission for exemption decisions.

The Guidelines are largely identical to the revised draft guidelines published in March 2015 for consultation, with the exception of a few minor changes and clarifications. One interesting difference is that, in the Guideline on the Second Conduct Rule, the Commission has removed a statement that “[it] is of the view that most conduct falling within scope of the Second Conduct Rule will be assessed by reference to the conduct’s actual or likely anti-competitive effects in the market”. Although this amendment does not necessarily suggest a change in enforcement priorities, it could suggest that the Commission wants to retain a broader margin of discretion when qualifying conduct which it considers to fall within the scope of the Second Conduct Rule, to avoid having to engage in a complex analysis of the effects of the conduct on the market. 

The Ordinance is scheduled to come into full effect on 14 December 2015. (The date is still subject to a negative vetting period in the Legislative Council which will begin on 14 October 2015.) The Commission previously announced that a leniency policy and a statement on enforcement priorities will be released before the Ordinance comes into full operation.

Follow this link to the Commission’s website for a copy of the Guidelines.