Agreements that do not have the “objective” of affecting competition would continue to be prohibited if they had anti-competitive “effects”. Such agreements have negative effects on one or more of the competitive parameters in the market, including (i) price; (ii) production; (iii) the quality of the product; (iv) product diversity or (v) innovation. The Competition Commission (Commission) is the main competition authority responsible for the application of the Regulation in the context of enforcement proceedings before the Competition Tribunal. Decisions of the Tribunal and other tribunals are also important sources of law for the competition regime in Hong Kong. In particular, the above policies and enforcement measures all refer to the rule of first conduct. Since the entry into force of the Regulation, the proceedings initiated by the Commission concerned infringement of the rule of first conduct. However, this trend was broken by a groundbreaking lawsuit brought by the Commission in December 2020 against Linde HKO Limited (Linde), Tse Chun Wah and Linde GmbH under the second rule of conduct. Linde abused its significant market power in the medical gas supply market by engaging in predatory acts that had the effect of impeding competition in Hong Kong. This measure by the Commission shows that it is starting to strengthen its enforcement not only by focusing on a particular code of conduct, but by extending its application to other rules, so that in the future we can expect further enforcement measures under the second code of conduct and even the merger rule. The Commission also actively publishes other publications, such as leaflets and brochures, to promote compliance with competition law. The Commission has the power to investigate alleged breaches of the Code of Conduct, both on its own initiative and on the basis of complaints.

The Commission has broad powers to obtain relevant documents and information during an investigation, including the power to enter and search premises (if a search warrant has been obtained) and to seize documents. Obstructing the Commission`s investigation is a criminal offence. If the Commission finds a possible infringement, it may: The second code of conduct prohibits the abuse of a significant degree of market power where the conduct has as its object or effect the prevention, restriction or distortion of competition in Hong Kong. The draft Guideline provides that, in general, a market share analysis can be useful as a first filtering tool for assessing whether an undertaking has a significant level of market power and that undertakings are more likely to have a significant level of market power if they hold high market shares. However, the Commission does not provide guidance on a specific market share, safe harbour or presumed threshold above which a significant level of market power could be presumed. The Competition Regulation stipulates that the following issues (among other relevant issues) may be taken into account in the decision: The Court was established on 1 August 2013. It is a special court set up within the High Court to hear competition cases. All judges of the High Court are legally members of the Tribunal. The judiciary gave the 16th. In July 2013, he announced the appointment of the Honourable Justice Godfrey Lam Wan-ho as President of the Tribunal and the Honourable Justice Queeny Au-Yeung Kwai-yue as Vice-Chair for three years each, effective August 1, 2013. The court has the power to hear competition cases and make decisions on infringements, sanctions and other remedies.

The General Court has the power to issue interim measures pending a final decision by the Commission or the General Court. The General Court will also rule on appeals relating to the Commission`s exemption, exclusion and implementation decisions. The decisions of the Court may be appealed to the Court of Appeal and, where appropriate, to the Court of Appeal of last instance. There are no independent rights of action. However, persons who have suffered damage as a result of anti-competitive conduct may bring actions for damages and other remedies before the court. The long-awaited Competition Regulations (Cap. 619) (the “Regulations”) published in June 2012 entered into force in Hong Kong on December 14, 2015. The importance of the regulation lies in the fact that it establishes the first cross-sectoral competition law in Hong Kong.

While this is a very welcome development, we are far behind the international community and other major economies in the region – Singapore introduced a full competition regime in 2006, while China`s antimonopoly law came into force in 2008. Both codes of conduct expressly apply to agreements and practices that have the object or effect of preventing, restricting or distorting competition in Hong Kong, even if the companies are located outside Hong Kong and the agreements or practices take place in whole or in part outside Hong Kong. The merger rule is also extraterritorial, examining whether the concentration significantly restricts competition in a Hong Kong market. [1] The draft guideline was submitted by the Commission for public comment on October 31, 2014. The Commission is expected to finalise the guidelines in the first half of 2015. [2] The Commission has undertaken to publish guidelines on the rights and obligations of small and medium-sized enterprises, which should contain guidelines for the de minimis exemption. .