Competition Ordinance/Part 5

Layout 2

PART 5
Review by Tribunal

83. Interpretation

In this Part—

“reviewable determination” (可覆核裁定) means—

(a) a decision regarding an agreement, made by the Commission under section 11;

(b) a rescission of a decision regarding an agreement, made by the Commission under section 14;

(c) a decision relating to the issue of a block exemption order, made by the Commission under section 15;

(d) a decision relating to the variation or revocation of a block exemption order, made by the Commission under section 20;

(e) a decision regarding specific conduct, made by the Commission under section 26;

(f) a rescission of a decision regarding specific conduct, made by the Commission under section 29;

(g) a decision relating to the variation of a commitment, made by the Commission under section 62;

(h) a decision relating to the release of a person from a commitment, made by the Commission under section 62;

(i) a decision relating to the termination of a leniency agreement, made by the Commission under section 81;

(j) a decision regarding a merger or proposed merger, made by the Commission under section 13 of Schedule 7; or

(k) a rescission of a decision regarding a merger or proposed merger, made by the Commission under section 15 of Schedule 7.

84. Review of reviewable determination

(1) An application may be made to the Tribunal by any person or undertaking specified or referred to in section 85 for a review of a reviewable determination.

(2) An application under subsection (1) may only be made with the leave of the Tribunal.

(3) Leave may not be granted under subsection (2) unless the Tribunal is satisfied that—

(a) the review has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the review should be heard.

85. Who may apply for review

(1) An application for a review under this Part may be made—

(a) in the case of a decision or a rescission of a decision, by the undertaking that applied for the decision;

(b) in the case of a decision relating to the variation of a commitment or the release of a person from a commitment, by the person who made the commitment; or

(c) in the case of a decision relating to the termination of a leniency agreement, by a party to the agreement.

(2) A person who does not fall under subsection (1) may also apply to the Tribunal for a review of a reviewable determination, other than a decision regarding a merger or proposed merger, if the Tribunal is satisfied that the person has a sufficient interest in the reviewable determination.

86. Tribunal may state case for Court of Appeal

(1) Before or after the determination of an application for review made under section 84, the Tribunal may, either of its own motion or on application, refer any question of law arising in, or that has arisen in, the review to the Court of Appeal for determination by way of case stated.

(2) The Tribunal may only refer a question of law to the Court of Appeal under subsection (1) if it is satisfied—

(a) that the party who has applied for the question of law to be referred has a reasonable prospect of success; or

(b) that there is some other reason in the interests of justice why the question of law should be referred.

(3) On the hearing of the case, the Court of Appeal may—

(a) determine the question stated;

(b) amend the case or require the Tribunal to amend the case in any manner the Court specifies; or

(c) remit the case to the Tribunal for reconsideration in the light of the decision of the Court.

87. Decision of Tribunal on application for review

In determining an application for a review, the Tribunal may—

(a) confirm or set aside the whole or part of the determination to which it relates; and

(b) where it sets aside the whole or part of a determination, refer the matter back to the Commission with a direction to reconsider and make a new determination in accordance with the decision of the Tribunal.

88. Time limit for applying for review

(1) An application for the review of a reviewable determination must be made within 30 days after the day on which the determination was made.

(2) Despite subsection (1), the Tribunal may extend the time referred to in that subsection if it is satisfied that—

(a) there is a good reason for doing so; and

(b) no injustice would be caused as a result of the extension.

(3) Despite subsection (2), an application for a review of a reviewable determination may not be made more than 3 years after the day on which the determination was made.

89. Stay of execution of reviewable determination

(1) The making of an application for review does not by itself operate as a stay of execution of the determination to which the application relates.

(2) A person or undertaking that has made an application for review may, at any time before the application is determined by the Tribunal, apply to the Tribunal for a stay of execution of the determination to which the application relates.

(3) When an application is made under subsection (2), the Tribunal must, as soon as reasonably practicable, conduct a hearing to determine the application, and may, where it considers it appropriate, order a stay of execution of the determination to which the application relates.

(4) An order for a stay of execution under this section may be made subject to such conditions as to costs, payment of money into the Tribunal or otherwise as the Tribunal considers appropriate.