In late November, the Hong Kong Competition Commission (HKCC) released an Enforcement Policy and Leniency Policy to supplement the much-anticipated Hong Kong Competition Ordinance, which is expected to take full effect on 14 December 2015. The Leniency Policy comes after consultation with stakeholders regarding the draft policy came to a close in October (see our post and KWM’s detailed note).
The Enforcement Policy outlines the HKCC’s core investigation principles and the three key issues the HKCC will consider in individual cases. These issues are:
- compliance focus;
- severity factors; and
- effective and appropriate remedies.
Similar to some of the ACCC’s 2015 priorities, the HKCC’s Enforcement Policy states that cartel conduct, anti-competitive agreements and abuse of substantial market power will form the HKCC’s compliance priorities. While these priorities are not as expansive as the ACCC’s set of priorities, perhaps due to HKCC’s limited resources and more confined initial role, the HKCC says directing resources to these three priorities will allow it to focus on investigations providing the greatest overall benefit to competition and consumers in Hong Kong.
The Leniency Policy is by and large similar to the draft policy released in September 2015 (see the KWM analysis here) but contains some clarifications. The policy will apply only to cartels, in line with the HKCC’s enforcement priorities, and possesses many similarities to the processes put in place by the ACCC such as:
- a leniency hotline, like the ACCC’s Immunity hotline, is the only valid way to make an application or request a marker for leniency; and
- a marker system such as the ACCC’s will be used to determine who is “first-in”, as only they will be offered leniency.
Parties who are not “first-in”, can cooperate with the HKCC to receive “a lower level of enforcement action” (rather than “favourable treatment” as originally used in the draft policy and also seen in the EU leniency regime). The HKCC has also now clarified its policy with examples of relevant cooperation factors that will be taken into account, all of which are similar to the ACCC’s policy on cooperation in cartels.
As with the ACCC’s immunity policy, applicants for leniency in Hong Kong will be expected to provide details of other jurisdictions where they have sought immunity/leniency and may be asked to authorise the HKCC to exchange confidential information with authorities in other jurisdictions.
It is helpful to see that HKCC’s new policies have some similarities with Australia and other familiar competition jurisdictions. The release of the two policies will provide important guidance to businesses and practitioners ahead of the imminent commencement of the Hong Kong Competition Ordinance next week, and will assist with what is hoped to be the seamless introduction of a new regime.