Administrative Procedures

The ICCC has two main administrative procedures to review and make decisions concerning companies engaging in restrictive trade practices. They are clearance and authorisation procedures. Respective review processes are triggered by an application to the ICCC.

ICCC Act provides for an authorisation application for restrictive trade practices, except for "Taking Advantage of Market Power".

Authorisation application

Authorisation applications relate to both restrictive trade practices and proposed business acquisitions. The administrative processes are very much the same. There are 5 main steps in the ICCC's administrative procedure:

1)	Relevant applications made and received by the ICCC;
2)	Application screening and Registration, if all in order;
3)	First round of Public Consultation;
4)	Issue of Draft Determination and start of second round of public consultation (Pre-Decision Conference may be held if one is called); and
5)	The release of Determination.

In step 1, the applicant completes an application using the correct form and submits to the ICCC. The applicant is required to pay an application fee as part of its application. The application fee differs for an application for a restrictive trade practice and a business acquisition. For a restrictive trade practice, the authorisation application fee is K5, 000 if the applicant is a registered company or statutory company and K1, 000 where the applicant is a natural person or partnership. For applications for a business acquisition, the application fee is K35, 000. The applicant when making a submission must address competition and public benefit issues.

The applicant must also indicate clearly in the application, as to which information in their submission is confidential, for the ICCC to consider. After decisions on the confidential information are made, the applicant must be made aware of the decisions.

In step 2, the application is checked and registered if all requirements have been met. If not, the ICCC may request the applicant to complete the application or reject the application. The decisions are relayed to the applicant accordingly.

Step 3 involves a first round of consultation, where the ICCC invites, from relevant stakeholders, comments and submissions on the application. Except confidential information and documents, all copies of the application and submissions are put on the Public Register for public inspection and comments. The applicant's proposals to address potential competition issues and likely public benefits are all tested publicly in this process. All relevant comments and submissions received are considered in the ICCC's assessment of the application and a Draft Determination is prepared by the ICCC.

Step 4 a Draft Determination is handed down and is circulated to the applicant first; and then to other relevant stakeholders for further comments and submissions on the ICCC's proposed decision. This is the second round of consultation where parties may also call a pre-decision conference within 10 days. All comments from the Draft Determination and conference, if one was called and held, are taken into consideration and a final Determination is prepared.

Step 5 involves the issuing of a Determination where the ICCC hands down its final decision. The Determination is issued first to the applicant, and then to other stakeholders. All public versions of the submissions and Determination are put on the Public Register for public viewing.

The main differences between restrictive trade practice and proposed business acquisition authorisation applications are as follows:

• While there is no statutory timeframe set where the ICCC is required to deliver a decision for a restrictive trade practice application, the ICCC has a 72 days statutory timeframe to deliver a decision for applications for proposed business acquisitions;

• The amount for application fees are different; and

• The applications are filed using different forms.

Clearance for a Business Acquisition

For an application for clearance regarding a proposed business acquisition, the processes are pretty much similar to applications for authorisation. The main difference is that there is no Draft Determination issued for clearance applications. The ICCC is required to make its decision within 20 days after the date of registration of the clearance application, otherwise the clearance is deemed to be granted. This time frame can be extended by agreement, and/or by the time taken by the applicant to provide any further information requested by the ICCC.

While authorisation procedure requires the ICCC to evaluate both the competition implications and the public benefits likely to come about as a result of engaging in the proposed conduct, the clearance processes only requires the assessment of competition implications.

Both a clearance and authorisation give complete protection to the parties against infringement charges under the ICCC Act.

It should be noted that the ICCC does not give informal clearances outside the formal, statutory process. As such, any views expressed by the ICCC in such circumstances would provide no legal protection for the acquirer and would thus be of no use.

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