PART III
APPLICATIONS TO COMMISSION
Person who is to make application
4.—(1)  An application shall be made (jointly or otherwise) by the following persons, and no others:
(a)where the applicant is an individual, by the individual;
(b)where the applicant is a body corporate, by an officer of that body corporate;
(c)where the applicant is a partnership, by a partner of that partnership; or
(d)where the applicant is an unincorporated association (other than a partnership), by an officer of that association or a member of its governing body.
(2)  In paragraph (1), “officer” —
(a)in relation to a body corporate, means any director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body; or
(b)in relation to an unincorporated association (other than a partnership), means the president, the secretary or any member of the governing body of the unincorporated association, or any person holding a position analogous to that of president, secretary or member of the governing body.
(3)  If a joint application is made, the application shall be regarded as being made to the Commission by or on behalf of all the applicants, and a joint representative shall be appointed as authorised to act on behalf of all the joint applicants for the purposes of these Regulations, unless excepted by the Commission.
Person making application to notify other parties
5.—(1)  Where a party to an agreement wishes to make or makes an application for guidance under section 43 of the Act or for a decision under section 44 of the Act, he shall give notice to all other parties to the agreement of whom he knows —
(a)that the application will be or has been made; and
(b)as to whether the application will be or is for guidance or for a decision.
(2)  Where a person wishes to make or makes an application for guidance under section 50 of the Act or for a decision under section 51 of the Act in respect of his conduct, being conduct involving one or more other persons, he shall give notice to all other persons who are engaged in the conduct of whom he knows —
(a)that the application will be or has been made; and
(b)as to whether the application will be or is for guidance or for a decision.
(3)  Where a party to an anticipated merger wishes to make or makes an application under section 57 of the Act, he shall give notice to all other parties to the anticipated merger of whom he knows that the application will be or has been made.
(4)  Where a party involved in a merger wishes to make or makes an application under section 58 of the Act, he shall give notice to all other parties involved in the merger of whom he knows that the application will be or has been made.
(5)  Notices under paragraphs (1) to (4) shall be given —
(a)in the case of paragraphs (1) and (2), no later than 7 working days from the date on which the applicant submits the form referred to in regulation 6(1)(a); and
(b)in the case of paragraphs (3) and (4), no later than 2 working days from the date on which the applicant submits the form referred to in regulation 6(1)(b).
(6)  The applicant shall provide a copy of any notice given under paragraph (1), (2), (3) or (4) to the Commission —
(a)where the notice is given before the applicant submits the form referred to in regulation 6(1)(a) or (b), on the date of the submission of the form; and
(b)where the notice is given on the same date as the date on which the applicant submits the form referred to in regulation 6(1)(a) or (b), or (subject to paragraph (5)) on a date subsequent thereto, within 2 working days from the date of the notification.
(7)  If the applicant is unable, despite the exercise of due diligence, to contact the other parties or persons as required under this regulation, the Commission may, if it considers appropriate, require the applicant to notify such other parties or persons in such mode and manner as the Commission may specify.
Applications: general
6.—(1)  An application shall be made to the Commission by the person specified in regulation 4 —
(a)in Form 1 where the application is made under section 43, 44, 50 or 51 of the Act; and
(b)in Form M1 where the application is made under section 57 or 58 of the Act.
(2)  Subject to regulation 7(3), an application is made, and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, is given, on the date on which Form 1 or Form M1, as the case may be, is submitted to the Commission.
(3)  Where the Commission requests an applicant to provide —
(a)Form 2 or Form M2, as the case may be, under regulation 7(1); or
(b)any additional information under regulation 7(7),
Form 2, Form M2 or such other information, as the case may be, shall form part of the application.
(4)  The Commission may, by giving notice to the applicant, dispense with the obligation to submit any particular information or document (including any supporting document forming part of Form 1 or Form M1 or, where applicable, Form 2 or Form M2), if it considers that such information or document is unnecessary for the examination of the agreement, the consideration of the conduct, or the consideration of the anticipated merger or merger, which is the subject of the application.
(5)  Paragraph (4) shall not prejudice the Commission’s powers under regulation 7(1), (2) or (7) to give notice to the applicant to require the information or document previously dispensed with, if it subsequently considers that such information or document is necessary for the examination of the agreement, the consideration of the conduct, or the consideration of the anticipated merger or merger, which is the subject of the application.
(6)  Where strict compliance with any part of the application is not possible, the Commission may allow that part of the application to be complied with in such other manner as it thinks fit.
(7)  Notwithstanding paragraph (6), the Commission may refuse to accept an application submitted to it if it does not comply with any requirement under the Act or these Regulations.
(8)  Every application shall be submitted in as many copies, and in such manner, as the Commission may require.
Applications: Commission may request outstanding or additional information and documents
7.—(1)  The Commission may, at any time after receiving Form 1 or Form M1, as the case may be, give notice to the applicant —
(a)requiring the applicant to submit to the Commission —
(i)Form 2 where the application is made under section 43, 44, 50 or 51 of the Act; and
(ii)Form M2 where the application is made under section 57 or 58 of the Act; and
(b)specifying such time limit as the Commission considers appropriate for Form 2 or Form M2, as the case may be, to be submitted to the Commission.
(2)  Where the Commission finds that the information submitted in Form 1, Form M1, Form 2 or Form M2, as the case may be, is incomplete, it may give notice to the applicant specifying —
(a)what information is outstanding; and
(b)such time limit as the Commission considers appropriate for the outstanding information to be submitted to the Commission.
(3)  Where an applicant submits outstanding information in respect of Form 1 or Form M1, as the case may be, to the Commission under paragraph (2), the application shall, notwithstanding regulation 6(2), be deemed to be made (and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, shall be deemed to be given) on the date on which the Commission receives the outstanding information.
(4)  If, in relation to Form 1 or Form M1, the Commission does not receive the outstanding information referred to in paragraph (2)(a) before the end of the time limit referred to in paragraph (2)(b) or of such further period, if any, as the Commission considers appropriate, the application shall be deemed not to have been made and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, shall be deemed not to have been given.
(5)  If, in the case of an application under section 43 or 44 of the Act, the Commission does not receive —
(a)Form 2 before the end of the time limit referred to in paragraph (1)(b) or of such further period, if any, as it considers appropriate; or
(b)the outstanding information referred to in paragraph (2)(a) in relation to Form 2 before the end of the time limit referred to in paragraph (2)(b) or of such further period, if any, as it considers appropriate,
the application shall be deemed not to have been made and the notification for the purpose of section 43 or 44 of the Act, as the case may be, shall be deemed not to have been given.
(6)  If, in the case of an application under section 50, 51, 57 or 58 of the Act, the Commission does not receive —
(a)Form 2 or Form M2, as the case may be, before the end of the time limit referred to in paragraph (1)(b) or of such further period, if any, as it considers appropriate; or
(b)the outstanding information referred to in paragraph (2)(a) in relation to Form 2 or Form M2, as the case may be, before the end of the time limit referred to in paragraph (2)(b) or of such further period, if any, as it considers appropriate,
the Commission may determine the application by not giving guidance or a decision, as the case may be.
(7)  Where, for the purpose of any application, the Commission requires any additional information that does not form part of Form 1 or Form M1 or, where applicable, Form 2 or Form M2, as the case may be, it may give notice to the applicant specifying —
(a)the additional information which it requires; and
(b)such time limit as the Commission considers appropriate for the additional information to be submitted to the Commission.
(8)  If the Commission does not receive the additional information referred to in paragraph (7)(a) before the end of the time limit referred to in paragraph (7)(b) or of such further period, if any, as it considers appropriate, the Commission may determine the application by not giving guidance or a decision, as the case may be.
(9)  Supporting documents submitted as part of Form 1 or Form M1 and, where applicable, Form 2 or Form M2, as the case may be, shall be either originals or true copies, and the applicant shall certify that each copy submitted is a true copy of the original.
(10)  Notwithstanding paragraph (2), the Commission may refuse to accept an application submitted to it if Form 1 or Form M1, as the case may be —
(a)is incomplete or is not accompanied by the relevant supporting documents; or
(b)is not substantially in the prescribed form,
whereupon the application shall be deemed not to have been made and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, shall be deemed not to have been given.
Applications: confidential information
8.—(1)  If the applicant considers any part of the information in Form 1, Form M1, Form 2, Form M2 or any document or correspondence to be submitted by the applicant to the Commission to be confidential information, the applicant shall, at the time of submitting that form, document or correspondence, submit to the Commission —
(a)a confidential version of that form, document or correspondence, containing and clearly identifying the confidential information;
(b)a non-confidential version of that form, document or correspondence, in which the confidential information has been removed in the manner specified by the Commission; and
(c)a written statement explaining why the information is confidential information.
(2)  The Commission may dispense with the obligation to submit a non-confidential version of any form, document or correspondence if it considers that such version is unnecessary for the examination of the agreement, the consideration of the conduct, or the consideration of the anticipated merger or merger, which is the subject of the application.
(3)  The Commission may at any time give notice to the applicant —
(a)requiring the applicant to revise any non-confidential version of any form, document or correspondence submitted under paragraph (1)(b) so as to include any information which has been removed; and
(b)specifying such time limit as the Commission considers appropriate for the revised non-confidential version of the form, document or correspondence to be submitted to the Commission.
(4)  The acceptance by the Commission of the non-confidential version of any form, document or correspondence submitted under paragraph (1)(b) shall not prejudice the Commission’s ability to issue a notice under paragraph (3) at a later point in time, where the Commission deems that disclosure of any information omitted from the non-confidential version is necessary.
(5)  If, in respect of Form 1 or Form M1, the applicant identifies any information therein to be confidential information but does not provide the Commission with a non-confidential version of the form or the written statement referred to in paragraph (1) at the time he submits Form 1 or Form M1, as the case may be, or before the end of such further period, if any, as the Commission considers appropriate, the application shall be deemed not to have been made and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, shall be deemed not to have been given.
(6)  If —
(a)in respect of Form 2 or Form M2 or any document or correspondence submitted by the applicant to the Commission, the applicant identifies any information therein to be confidential information but does not provide the Commission with a non-confidential version of the form, document or correspondence, or the written statement, referred to in paragraph (1) at the time he submits Form 2 or Form M2, the document or the correspondence, as the case may be, or before the end of such further period, if any, as the Commission considers appropriate; or
(b)the Commission does not receive the revised non-confidential version of any form, document or correspondence referred to in paragraph (3)(a) before the end of the time limit referred to in paragraph (3)(b) or of such further period, if any, as the Commission considers appropriate,
the Commission may determine the application by not giving guidance or a decision.
(7)  For the avoidance of doubt, nothing in this regulation shall be construed as preventing the Commission from having regard to any information which is, or any document containing information which is, confidential information, or any part thereof, in its determination of any application.
Applications: fees
9.—(1)  No person shall make an application under regulation 6(1) unless —
(a)in the case of an application under section 43, 44, 50 or 51 of the Act, it is accompanied by the appropriate initial fee; or
(b)in the case of an application under section 57 or 58 of the Act, it is accompanied by the appropriate merger fee.
(2)  Notwithstanding that an application may have been accepted by the Commission, the application shall be deemed not to have been made, and the notification for the purpose of section 43, 44, 50, 51, 57 or 58 of the Act, as the case may be, shall be deemed not to have been given, if the cheque or authorisation for payment of the appropriate initial fee or appropriate merger fee, as the case may be, is subsequently dishonoured.
(3)  The Commission may, if it thinks fit, within 2 months from the date of filing of Form 2 by an applicant, give notice to the applicant —
(a)requiring the applicant to pay the appropriate further fee; and
(b)specifying the time limit as the Commission considers appropriate for such further fee to be paid to the Commission.
(4)  If —
(a)the Commission does not receive the appropriate further fee within the time limit specified in paragraph (3)(b) or within such further period, if any, as the Commission considers appropriate; or
(b)the cheque or authorisation for payment of such further fee is subsequently dishonoured,
the Commission may determine the application by not giving guidance or a decision, as the case may be.
Proposed infringement decisions: Commission to notify
10.—(1)  If, in relation to an application under section 44 or 51 of the Act, the Commission proposes to make a decision that any agreement or conduct has infringed the section 34 prohibition or the section 47 prohibition, as the case may be, the Commission shall give notice of this —
(a)where the application was made under section 44 of the Act, to the applicant and those persons whom the applicant identified in the application as being the other parties to the agreement; and
(b)where the application was made under section 51 of the Act, to the applicant and the other persons, if any, whom the applicant identified in the application as engaging in the conduct.
(2)  If, in relation to an application under section 57 or 58 of the Act, the Commission proposes to make a decision that an anticipated merger, if carried into effect, will infringe the section 54 prohibition, or a decision that a merger has infringed the section 54 prohibition, the Commission shall give notice of this to the applicant and those persons whom the applicant identified in the application as being the other parties to the anticipated merger or the other parties involved in the merger, as the case may be.
(3)  Regulation 11 shall apply to a notice given by the Commission under this regulation.
Proposed infringement decisions: notices, access to file and representations
11.—(1)  Every notice referred to in regulation 10 shall state —
(a)the facts on which the Commission relies and its reasons for the proposed decision;
(b)the period within which a relevant person may make representations to the Commission, which shall be in the form of a written statement, identifying the information contained in the notice which that relevant person considers the Commission should treat as confidential information and explaining why he considers the Commission should treat such information as confidential information;
(c)the period within which a relevant person may submit a written statement to the Commission on the matters referred to in the notice; and
(d)in relation to an application made under section 57 or 58 of the Act, that the party who applied for the anticipated merger or merger to be considered may apply to the Minister within 14 days of the date of the notice for the anticipated merger or merger, as the case may be, to be exempted from the section 54 prohibition on the ground of any public interest consideration.
(2)  The Commission shall give a relevant person a reasonable opportunity to inspect the documents in the Commission’s file that relate to the matters referred to in the notice given to that relevant person, except that the Commission may withhold any document —
(a)to the extent that it contains confidential information; or
(b)which is an internal document.
(3)  Where, in his written statement on the matters referred to in a notice given to a relevant person, that relevant person requests to make oral representations to the Commission on such matters, the Commission may give that relevant person a reasonable opportunity to make such oral representations.
(4)  Where, at the end of the period referred to in paragraph (1)(c), no written statement on the matters referred to in a notice given to a relevant person have been made by that relevant person, the Commission may proceed with its proposed decision in the absence of such statement.
(5)  Where the Commission has given a relevant person a reasonable opportunity to make oral representations under paragraph (3) but no oral representations have been made, the Commission may proceed with its proposed decision in the absence of such representations.
(6)  Nothing in paragraph (1)(b) shall be construed as restricting the application of regulation 20(2), (3), (5) and (6).
(7)  In this regulation —
“internal document” means —
(a)a document —
(i)produced by the Commission or any other public authority; or
(ii)exchanged —
(A)between the Commission and any other public authority; or
(B)between such other public authorities; or
(b)a document produced by any person from time to time retained under a contract for services by the Commission or any other public authority in connection with such a contract;
“public authority” includes —
(a)a court or tribunal and any person or body exercising functions of a public nature; and
(b)in any country or territory outside Singapore, a court or tribunal and any person or body which appears to the Commission to be exercising functions of a public nature;
“relevant person” means a person to whom notice is required to be given under regulation 10.
Change in information provided to Commission
12.  Where, before the Commission gives guidance or a decision on any application, or determines an application by not giving guidance or a decision, there is any material change to the information contained in the application or any information submitted to the Commission, the applicant shall give notice of that change to the Commission without delay.