Chillin'Competition

[As Nico mentioned on his last post, he’ll soon be travelling to Hong Kong to participate at a conference on 21st century competition authorities. The timing is not accidental: at the beginning of the summer Hong Kong adopted its first comprehensive competition law. We have invited a friend of this blog, Sandra Marco Colino, currently an Assistant Professor at The Chinese University of Honk Kong to share her views on this new law. Sandra has a PhD on competition law issues from the EUI, and prior to moving to Hong Kong was a lecturer at the University of Glasgow. We leave you with her post on caffeine and competition law in Hong Kong].

It was close to midnight on June 14, 2012 when Hong Kong’s Legislative Council finally adopted the region’s first ever cross-sector Competition Ordinance (hereinafter ‘the Ordinance’). Rather geekishly, I remember exactly where I was the following morning when I first heard the long-awaited news: sipping my first espresso “ristretto” of the day at a café in the heart of the city’s financial district (strong coffee is a delightfully resilient habit I picked up in Florence). The news came almost two years after the Bill was originally tabled, and the debate
surrounding the legislative proposal has not been for the faint-hearted. Although preliminary studies indicated that the local community would welcome the introduction of the law, businesses and stakeholders repeatedly voiced their concerns about the threat it could pose to Hong Kong’s open economy. For many years, initiatives to regulate competition seemed to be frustrated before they even developed into concrete proposals as a consequence of a predominant mistrust towards any form of market intervention.

As I read through the text of the new Ordinance while enjoying my coffee, I couldn’t help wondering whether the twists and turns of the lingering ‘to antitrust, or not to antitrust’ discussion would have left a decaf taste on the law. As originally drafted in the summer of 2010, the Ordinance does indeed tackle anti-competitive agreements (the ‘first conduct rule’) and the abuse of a substantial degree of market power (the ‘second conduct rule’). For the time being, only anti-competitive mergers in the telecommunications industry may fall within the scope of the legislation. As regards institutional enforcement, an independent Competition Commission and Competition Tribunal will be set up to conduct investigations and decide whether there has been a breach.

Overall therefore, the general framework of the new legislation follows long-established principles of modern antitrust regimes.  But when fleshing out the nitty-gritty, already in October 2011 the government had been forced to water down the original text of the Bill to respond to critics. For instance, it vowed distinguish between ‘hardcore’ and ‘non-hardcore’ violations
under the first conduct rule, the former comprising those restrictions of competition that are considered anti-competitive by object under Article 101(1) TFEU (price fixing, market sharing, output restrictions). In addition, it agreed to reduce the maximum pecuniary penalty to 10 percent of local turnover for each year of infringement, up to a maximum of three years. Moreover, the Competition Commission’s ability to impose fines in the original infringement notice would be removed from the Bill. The government also promised to introduce a de minimis threshold for the application of the first conduct rule for all agreements among undertakings with an aggregate turnover of HKD 100 million or less in the preceding financial year. Importantly, it gave consideration to the possibility of precluding private parties from bringing claims before the Competition Tribunal altogether.

The Ordinance, as adopted in June, includes most of these mitigating alterations, with two clarifications: the de minimis threshold (set at a combined worldwide turnover of HKD 200 million) will only be applicable in the absence of ‘serious anticompetitive conduct’; and ‘follow-on’ private rights of action have finally been granted to those who have suffered loss or damage as a consequence of an antitrust violation, once a breach of the Ordinance has been established.

My initial thoughts? Clearly, some concerns do spring to mind associated to the devil that might be in the detail. Nonetheless, with the adoption of the Ordinance Hong Kong has certainly taken a colossal and much-needed step towards the building of a palisade against the dangers of unrestrained market power. The strength of that palisade will, of course, very much depend on the implementation of the rules, unlikely to materialise before the end of 2013. For the time being, it appears that the Ordinance may indeed have sufficient caffeine to awaken competition in Hong Kong.