This Memorandum highlights the views and comments of the JEC and its member organisations, including the MCCI, with regard to the Competition Bill 2001 (draft of 5 November 2001).

The Private Sector believes that the objectives of the Competition Bill will be achieved only if the conditions mentioned below are in place.

2. Independence of the Office of Fair Trading and appointment of the Director of Fair Trading (section 4)

The independence of the Office of Fair Trading is a critical factor in the successful implementation of the competition legislation. The Director of the Office of Fair Trading should not be tied to the Minister. The entire Bill should be reviewed to allow the Director to exercise his/her powers independently of the Minister.

We note that the draft Bill is silent about the procedures to be followed for the appointment of the Director of Fair Trading. We therefore propose that the Director be appointed by the Public Service Commission. Moreover, a mechanism should be established to enable the Private Sector to be also involved in the selection of the Director.

3. Functions of Director and prima facie evidence (section 5)

In order to prevent any abuse of powers under this legislation, there should be strong prima facie evidence before any investigation in any suspected/alleged abuse of monopoly situation or other restrictive business practices is undertaken.

Hence, we strongly suggest that section 5(1) be modified by adding "Provided that he is in possession of a strong prima facie case, the Director shall, subject to the other provisions of the Act …".

4. Proceedings of the Competition Tribunal (section 7)

Mention should be made of a time frame within which the Tribunal should submit its directions.

5. Monopoly situation (section 10)

The thresholds for monopoly situations in sections 10(1)(a) and (b) are too low. The specificities of Mauritius, in particular that of a small market size, have not been taken into consideration.

We also propose that, under section 10(1)(a), "same description" be replaced by "similar description".

More clarification is needed as regard to the term "nearby competitors" under section 10(2).

6. The inclusion of public utilities (section 10(3) and the Second Schedule)

The Competition Bill should not be restricted to the Private Sector only. The Office of Fair Trading should also be able to investigate abuse of monopoly situation and other restrictive business practices by public utilities. Section 10(3) as well as the Second Schedule of the Bill should thus be deleted.

7. Competition Tribunal as a last resort (section 15)

We believe that the Director of Fair Trading should, in the first instance, explore all possible avenues with the enterprise concerned to mutually agree on an undertaking to prevent or terminate any restrictive business practices. Matters should be referred to the Tribunal only as a last resort when all possible avenues for conciliation have been exhausted and no agreement has been reached.

8. Powers of Minister (section 17)

We propose that, under section 17(2), "public interest" be replaced by "national interest".

9. A competitive environment

In order to enhance the overall competitive environment, an anti- dumping legislation should be introduced together with the Competition Bill.

Moreover, with the enactment of the Competition Bill, there should at the same time be a mechanism in place for the phasing out of price control. A competition legislation and price control cannot live side by side.

10. Strengthening of existing and setting up of new regulatory bodies

There should be strong regulatory frameworks in place in all areas of activity before the enactment of the Competition Bill. Regulatory bodies should be established in certain specific sectors (for example, in the electricity sector) or strengthened in other cases (for example, in the telecommunications sector).

Above all, and in conclusion, the competition legislation should not be an obstacle to the growth and expansion of the Private Sector in Mauritius.