This presentation by the Singaporean Delegation was made during Break-out session 3: Due Process in relation to Evidence Gathering, of the discussion on “Investigative Powers in Practice” held at the 17th meeting of the OECD Global Forum on Competition on 29 November 2018. More documents and presentations on this topic can be found at oe.cd/invpw.

1. MAKING MARKETS WORK WELL
DueProcessinrelationtoEvidenceGathering
LEECheowHan|Asst.ChiefExecutive(Legal,EnforcementandConsumerProtection)
CompetitionandConsumerCommissionofSingapore
OECDGlobalForumonCompetition2018
SessionIV:InvestigativePowersinPractice

2. 2.
Due Process in
Evidence Gathering
3.
Q&A
1.
Competition Law
in Singapore

3. Statutory board under the Ministry of Trade and Industry
Commission comprising of a Chairman and members exercises the
functions and powers under the Competition Act
Commission administers and enforces the Competition Act
 Investigate: obtain information, conduct interviews or dawn raids, seize
documents
 Decide: decide whether undertaking has infringed the prohibitions under
the Competition Act
 Direct and Penalise: take actions to address adverse effects on
competition and/or impose financial penalties
Commission advises the Government, public authorities, consumer
protection organisations on competition matters and consumer
protection matters

4. Date Developments
Pre-2005
No generic competition law in Singapore, only sectoral regulators
(e.g. energy and communications)
1 Jan 2005
Competition Act (Cap. 52B) came into force
Competition Commission of Singapore (“CCS”) established as a
statutory board
1 Jan 2006
Section 34 (anti-competitive agreements) and section 47
prohibitions (abuse of dominance) came into effect
1 Jul 2007
Section 54 prohibition (mergers that substantially lessen
competition) came into effect
1 Apr 2018
CCS took over SPRING Singapore’s consumer protection functions
under the Consumer Protection (Fair Trading) Act and renamed as
the Competition and Consumer Commission of Singapore
(“CCCS”)
CompetitionLawinSingapore:2005toPresent

5. Section 47 prohibits conduct by one or more
undertakings which amounts to the abuse of a
dominant position in any market in Singapore
Section 34 prohibits agreements between
undertakings, decisions by associations of
undertakings or concerted practices which have
the object or effect of preventing, restricting or
distorting competition within Singapore
Section 54 prohibits mergers that have resulted,
or may be expected to result, in a substantial
lessening of competition within any market in
Singapore
KeyProhibitionsintheCompetitionAct

6. InvestigativeProcesses
Initiation &
Preliminary
Enquiry
Investigation,
Exercise of
Formal Powers:
Section 63, 64 &
65
Interviews &
Information
Gathering
Evidence Review
& Assessment of
Facts

7. Post-InvestigationsandDecision-Making
Proposed
Infringement
Decision
Final
Infringement
Decision
Written and Oral
Representations
/ Access to File

8. 2.
Due Process in
Evidence
Gathering
3.
Q&A
1.
Competition Law
in Singapore

9. DueProcessinEvidenceGathering
Parties have not challenged CCCS’s investigative procedures
on appeal before the Competition Appeal Board (“CAB”) or
in the High Court
CCCS ensures that due process is observed in our
investigations and decision-making processes:
Commencing investigation
Request for information/documents
Power to enter premises
Notice of proposed infringement decisions
Access to file
Representations

10. DueProcessinEvidenceGathering
The Competition Act and the Competition Regulations
provide for substantive and procedural safeguards to
ensure due process:
 Right to be informed of the scope of investigation
 Right to be informed of the consequences of failure to
co-operate
 Right to have access to legal counsel and
representation
 Right to have notice of proposed infringement
decision
 Right to have access to documents in CCCS’s file
 Right to make representations
 Right to be heard and present evidence

11. Investigations&Requestforinformation/documents
Investigations may only be commenced if there are
reasonable grounds to suspect an infringement of any
of the three prohibitions (section 62)
Requests for information or documents must be
accompanied by notices that state the subject matter
and purpose of the investigation (section 63(2))
Undertaking under investigation must be informed of
the offences for non-cooperation (section 63(2)(b))
Reasonable time provided for undertakings to obtain
legal advice (regulation 20, Competition Regulations)
CCCS Guidelines elaborate on powers of investigation
(published in the Government Gazette in accordance
with section 61(1))

12. PowertoEnterPremiseswithoutwarrant
Power to enter premises without warrant only if there
are reasonable grounds to suspect that the premises
are occupied by an undertaking under investigation
for any of the three prohibitions (section 64)
Occupier of premises to be served with a notice that
state the subject matter and purpose of the
investigation (sections 64(2))
Occupier and undertaking under investigation must
be informed of the offences for non-cooperation
(section 64(2)(c))
Reasonable time provided for undertakings to obtain
legal advice (regulation 20, Competition Regulations

13. NoticeofProposedInfringementDecision(“PID”)
A written notice of PID to be given to an undertaking if
CCCS concludes that any of the three prohibitions has
been infringed (section 68)
CCCS to inform the undertaking of the facts and
reasons for the finding of infringement and the
proposed penalties or directions (regulation 8,
Competition Regulations)
Undertaking to be informed of its right to make
written and oral representations to CCCS
Undertaking to be given reasonable opportunity to
inspect documents in CCCS’s file

14. AccesstoFile
Parties named in a PID and their legal counsels will be
given a reasonable opportunity to access CCCS’s files
(regulation 8(2)(a),Competition Regulations)
CCCS may withhold confidential information or internal
documents from the parties (regulation 8(2)(b)
Competition Regulations)
Statutory definition of “confidential information” and
“internal documents” (regulation 2, Competition
Regulations)
Access to confidential information provided to legal
counsels to make written representations via
confidentiality rings

15. Representations
Parties named in a PID have a right to make
representations to CCCS on the matters raised
in the PID (section 68(1))
Parties have a right to be given a reasonable
opportunity to make written and oral
representations to CCCS (regulations 8(1) and
8(3), Competition Regulations)
Commission will consider the written and oral
representations in its deliberations of
whether or not to issue a decision
The final Infringement Decision will
incorporate CCCS’s responses to these
representations

16. InfringementDecision(“ID”)
The final ID will be issued to
the parties and published on
CCCS’s website (section 68(2),
regulation 9, Competition
Regulations)
The ID will set out the facts
and the reasons for CCCS’s
decision
Parties will be able to file an
appeal against CCCS’s
decision, which will be heard
by the Competition Appeal
Board

17. PowersofCompetitionAppealBoard
All the powers and duties of the
Commission (section 73(1))
Powers, rights and privileges vested in
the District Court including compelling
the production of documents (section
73(2))
Power to confirm or set aside the
Commission’s decision
Power to impose, revoke or vary the
amount of financial penalty
Power to give direction or make any
decision that the Commission could itself
have made

18. 2.
Due Process in
Evidence Gathering
3.
Q&A
1.
Competition Law
in Singapore

19. A VIBRANT ECONOMY WITH
WELL-FUNCTIONING AND INNOVATIVE MARKETS
ThankYou
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