The Fast Track Procedure (FTP) introduced in December 2016 by the Competition and Consumer Commission of Singapore (CCCS) has been applied for the first time in a bid-rigging decision involving three water features maintenance businesses (CU Water Services, Crystalene Product (S) and Crystal Clear Contractor) (“Infringement Decision“). In exchange for admission of liability and cooperation with the CCCS in respect of their infringement of the prohibition against anti-competitive agreements under section 34 of the Competition Act (Cap. 50B), Crystalene Product (S) and Crystal Clear Contractor benefitted from a 10% reduction on their respective penalties under the FTP. This is in addition to discounts made available to them under the CCCS’s leniency regime by virtue of their leniency applications.
Notably, this Infringement Decision (see previous client update on the bid-rigging aspects of the Infringement Decision) was the first case the CCCS considered suitable for the FTP, which has been in place for four years. As a matter of principle, the CCCS considers the FTP suitable when the CCCS is reasonably satisfied that the evidentiary standard of proof has been met, based on information and evidence available, such that the CCCS may issue a proposed infringement decision or infringement decision. In determining whether the FTP is suitable, the CCCS exercises wide discretion in reviewing each matter on a case-by-case basis. Parties under investigation may also choose to proactively indicate to the CCCS their willingness to engage in an FTP discussion.
According to the Infringement Decision, the CCCS initiated the FTP prior to the issuance of its proposed infringement decision. The proposed infringement decision is a written notice setting out the facts on which the CCCS makes its assessment and its reasons for arriving at a proposed decision that a prohibition of the Competition Act (Cap. 50B) has been infringed. It is issued to assist parties under investigation with making representations for the CCCS’s consideration before the CCCS issues an infringement decision. Out of the three companies providing maintenance services for water features, only Crystalene Product (S) and Crystal Clear Contractor agreed to enter into an agreement for the FTP and to cooperate throughout the CCCS’s investigation. They further confirmed that they will not make extensive written representations or request to inspect the documents and evidence in the CCCS’s file.
It is clear from this Infringement Decision that the CCCS retains discretion in considering whether it is appropriate to proceed with the FTP even if not all parties are willing to be involved. For their participation in the FTP, Crystalene Product (S) and Crystal Clear Contractor benefitted from a 10% reduction on their respective penalties, in addition to discounts made available under the CCCS’s leniency regime, by virtue of their respective leniency applications.
For more information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.
In more detail
The FTP was introduced on 1 December 2016, to assist the CCCS in effectively and efficiently enforcing the Competition Act (Cap. 50B) by achieving procedural efficiencies in the enforcement process and allowing an infringement decision to be rendered earlier. This procedure is distinct from the CCCS’s ability to accept voluntary commitments and the CCCS’s leniency policy.
The steps in the FTP consists of the following:
- Phase 1 – Initiation: The FTP can be initiated prior to or after a provisional infringement decision but not after an infringement decision, though it is envisaged that it should be initiated prior to a proposed infringement decision being issued. While parties may proactively indicate their willingness to participate in the FTP, the CCCS retains discretion to determine whether the case is suitable for the FTP. This will usually hinge upon whether the CCCS is reasonably satisfied that information/evidence available meets the evidential standard of proof required to issue a proposed infringement decision or infringement decision.
- Phase 2 – Discussion: The CCCS and each party involved in the FTP will discuss various matters, including the scope and gravity of the anti-competitive conduct and the possible range of financial penalties, on a “without prejudice” basis. The parties will also be informed of the evidence and documents used to determine the scope of the infringement and allow the parties to ascertain their positions. The discussion phase closes when parties make a submission to the CCCS (“FTP Submission”), to express its willingness to utilize the FTP.
- Phase 3 – Agreement: The parties will sign an agreement in writing, setting out the terms of the FTP Submission and other terms discussed in the previous phases, providing for the parties’ cooperation with the CCCS (“FTP Agreement“).
- Phase 4 – Acceptance: Once the FTP Agreement is signed, the CCCS will issue a proposed infringement decision or infringement decision reflecting the content in the FTP Agreement, and the parties will have only a limited period set by the CCCS to make representations.