Enforcement & Compliance
The prohibited anti-competitive conduct under the ICCC Act is referred to as Market Conduct Rules (MCR). The MCR plays a crucial role in regulating anti-competitive commercial arrangements and safeguarding market competition. The ICCC enforces the MCR by investigating potentially anti-competitive conduct and taking appropriate corrective actions. The corrective actions may include asking the alleged perpetrators to cease engaging in the conduct or taking legal action against them for potential breaches of the ICCC Act.
The ICCC may initiate its own investigations or upon receiving a complaint from anyone.
Any potentially anti-competitive complaints can be lodged with the ICCC for investigation and if necessary, appropriate corrective actions. Complaints can be made through phone calls, walk-in interviews, social media messages, online complaint forms on the website, or formally written correspondences. Any person – competitors, other businesses, consumers, employees, regulators, etc. – can lodge a complaint with the ICCC.
When the ICCC receives a complaint, it screens it to ensure the alleged anti-competitive conduct is likely to raise competition concerns under any of the MCR. It then registers it and undertakes a preliminary assessment to determine whether or not the complaint amounts to a prima facie case. If it doesn’t, the ICCC advises the complaint of its findings and reasons not to pursue the case. Where there is a prima facie case, the ICCC undertakes a detailed analysis to ascertain whether a breach of the ICCC Act has occurred from the alleged conduct. There is no time limit to handling a complaint, however, as a rule of thumb; complaints are dealt with as expeditious as possible.
If the issues raised in the complaint are outside of the ICCC’s competition mandate, these are referred to the relevant authorities; and the complainant is informed accordingly.
If you wish to make a complaint about an alleged breach of the ICCC Act we ask that you contact the ICCC and supply the following information.
When you lodge a complaint, ensure to supply the following key information:
1. Business/ Personal details (so that we can maintain contact with you):
- Your full name
Your full address and contact details (Postal & residential address, telephone, fax, and email details)
2. Details of the Complaint (So that we can assess the complaint quickly):
- The name of the party that you are complaining about.
- the address and contact details of the party, if known.
- full details of the complaint you wish to make in chronological order: this should include all contact you have with the concerned party and any explanation that the concerned party has given you.
- What do you think are actions or conducts that may potentially breach the ICCC Act?
3. Other helpful materials would include:
- Copies of any correspondence between you and the concerned party regarding the complaint.
- And any other information or documents that you feel could assist the ICCC in assessing your complaint.
- Audio recordings
The investigation process begins when complaints have been assessed that it is likely to raise serious competition concerns under one of the prohibited MCR. The investigation continues until the ICCC concludes whether or not the relevant provision(s) of the ICCC Act is likely to be breached.
The ICCC has strong investigative powers. It can voluntarily seek information or do so forcefully. The ICCC can summon alleged perpetrators and or a potential witness to give information. A Statutory Notice will be issued to provide a written response, and a compulsory interview can be conducted to give information and evidence on oath.
Throughout the investigation process, the ICCC collects information or evidence, conducts interviews with relevant parties, and undertakes a thorough analysis to determine the existence and extent of anti-competitive behavior. If an investigation reveals any violations of the MCR, appropriate enforcement actions are taken, such as requesting parties to cease engaging in anti-competitive conduct or take legal action against them.
The ICCC Act prescribes various maximum penalties for breaches of the MCR. The penalties are designed to reflect the seriousness of illegal commercial behavior and the harm caused by anti-competitive activities. The following is an overview of the maximum penalties:
In cases of contravention, the ICCC may initiate proceedings in the National Court to seek pecuniary penalties. These penalties can be substantial, reaching up to K10,000,000.00 for a body corporate, K500,000.00 for an individual, for each violation. The severity of these penalties reflects the seriousness of illegal commercial behavior with respect to the harm caused and profits made from such activities.
The ICCC can apply for injunctions through the Court to restrain unlawful conduct. The ICCC is not required to give an undertaking as to damages when applying for an interim injunction. An injunction can restrain a person from engaging in any of the anti-competitive conduct.
The ICCC can seek orders for divestiture of assets that have been illegally acquired under Section 69 of the ICCC Act.
The ICCC has the power to apply to the Court for banning orders, prohibiting specific individuals from being directors, promoters, or having any management association with a body corporate. These orders may apply for up to five years.
RIGHTS OF PRIVATE ACTION:
The ICCC Act also grants affected parties the right to pursue private legal action to seek redress for any loss or damage incurred due to a contravention of the ICCC Act. This recognizes the serious commercial consequences such contraventions can have on competitors, potential competitors, suppliers, or customers.
In cases where standard remedies may not be sufficient or appropriate, the ICCC may seek other orders from the Court. This allows for a flexible range of remedies for contraventions of the ICCC Act, ensuring a comprehensive and effective enforcement framework.