The case of IPP Financial Advisers Pte Ltd v Competition Commission of Singapore  SGCAB 1 involved anti-competitive behavior in the insurance industry. The case is a reminder that anti-competitive conduct will be taken seriously and that financial penalties that have a deterrent effect will be imposed.
The appellant is a licensed financial adviser and, among other things, distributes the investment and insurance products of multiple insurance companies (Insurers). iFAST Corporation Limited (iFAST) operates an online business-to-consumer platform known as “Fundsupermart”, as well as an online business-to-business platform. The appellant, as well as other financial advisers like it, was a customer of iFAST, using its business-to-business platform.
On 30 April 2013, iFAST began to offer Insurers’ individual life insurance products on the Fundsupermart website. It offered to pass on half the commission it received from the Insurers to policyholders that signed up through it. The appellant, along with nine other financial advisers, was deeply unhappy with this offer. Together with the nine other financial advisers, it contacted iFAST and made known its unhappiness. Two days later, the offer was withdrawn from the Fundsupermart website.
The Competition Commission of Singapore (CCS) investigated the withdrawal. After investigations, it concluded that the financial advisers, including the appellant, had engaged in an anti-competitive agreement or concerted practice contrary to section 34 of the Competition Act. It imposed financial penalties on the financial advisers totaling SGD909,302. The appellant received the second highest financial penalty, which amounted to SGD239,851.
The appellant appealed the decision. It argued that the CCS has wrongly applied the principles set out in the CCS Guidelines on the Appropriate Amount of Penalty (CCS Penalty Guidelines).
The CCS Penalty Guidelines explain that a financial penalty imposed by the CCS will be calculated taking into consideration the following:
- The seriousness of the infringement;
- The turnover of the business of the undertaking in Singapore for the relevant product and relevant geographic markets affected by the infringement in the undertaking’s last business year;
- The duration of the infringement;
- Other relevant factors, e.g. deterrent value; and
- Any further aggravating or mitigating factors.
The appellant argued, among other things, that in determining the turnover of the business, the CCS should not include turnover arising from existing policies entered into before the relevant business year but only turnover arising from new policies entered into in that year. It also argued that the CCS should have pro-rated this sum to further reflect the fact that the infringing conduct had only taken place over two days.
The Competition Appeal Board (CAB) dismissed the appeal. The decision sets out useful observations on the relevant principles that will be applied to determining the quantum of the financial penalties.
The CAB ruled that the relevant turnover of the business of the undertaking was the appellant’s entire turnover from the distribution of Insurers’ individual life insurance products in Singapore in the relevant year. This included the business from all the policies in force in FY2014, and not just the policies entered into in that year. This was because the market was not subdivided based on the year that the insurance policies were entered into: an existing policyholder could be sufficiently attracted by iFast’s offer to make a switch to it.
In this regard, the CAB noted that as a matter of policy the objectives of imposing of any financial penalty are to reflect the seriousness of the infringement and to deter both the undertakings in question and other like-minded undertakings from engaging in similar anti-competitive practices. It further noted that anti-competitive practices are generally covert and difficult to detect, and there is a real potential for large profits to be made for an indefinite period until the conduct is exposed. If the penalty imposed were insignificant, undertakings might be tempted to engage in anti-competitive practices, and to simply factor in the risk of a low penalty into its pricing structure as part of its “business cost”. A sufficiently high penalty must be imposed so that an undertaking, acting rationally and in its own interest, will not be prepared to treat the risk of the penalty as part of its business cost.
As regards the duration of the infringement, the CAB noted that the CCS Penalty Guidelines stated that an infringement over a part of a year may be treated as a full year for the purpose of calculating the duration of the infringement. It noted, however, that the duration of a full year would be reduced to less than one if there were evidence of genuine contrition and a desire to terminate the infringing conduct as soon as is practicable. On the other hand, where the reason for the short duration of the infringing conduct was due to other factors, such as early detection and intervention by the authorities, this would not be credited to the undertakings in the form of a reduced duration.
In this case, the reason for the short duration of the infringing conduct was the quick acquiescence of the competitor to remove its offer from the market. To credit the appellant for the short duration of its infringing conduct would be to reward it for its fast and effective anti-competitive behavior. In addition, the longer period would reflect the enduring effect the appellant’s anti-competitive conduct had had on the level of competition in the market: iFast did not reintroduce the product until two years later, and even then only in a modified form.
The CAB therefore upheld the full amount of the financial penalty imposed by the CCS.