Competition Ordinance/Schedule 5

Layout 2

Competition Commission

PART 1
Interpretation

1. Interpretation

In this Schedule—

“auditor” (核數師) means the auditor appointed under section 24 of this Schedule;

“Chairperson” (主席) means the Chairperson of the Commission appointed under section 8 of this Schedule;

“Chief Executive Officer” (行政總裁) means the Chief Executive Officer of the Commission appointed under section 10 of this Schedule;

“financial year” (財政年度) means the financial year of the Commission as defined in section 20 of this Schedule;

“statement of accounts” (帳目報表) means the statement of the accounts of the Commission required to be prepared by section 23 of this Schedule.

PART 2
Members of Commission

2. Composition of Commission

(1) The Commission is to consist of not less than 5 and not more than 16 members appointed by the Chief Executive.

(2) In considering the appointment of a person as a member of the Commission, the Chief Executive may have regard to that person’s expertise or experience in industry, commerce, economics, law, small and medium enterprises or public policy.

(3) Subject to this Schedule, a member holds office for the period, not exceeding 3 years, that is specified in the member’s letter of appointment, but is eligible for re-appointment.

(4) The Chief Executive must publish a notice in the Gazette of all appointments made under this section.

3. Terms of appointment

(1) A member is entitled to such terms (including remuneration and allowances) as the Chief Executive may determine.

(2) The remuneration and allowances of a member are to be paid out of the funds of the Commission.

4. Resignation of member

(1) A member may, at any time, resign from office by giving written notice of resignation to the Chief Executive.

(2) A notice of resignation is not effective unless it is signed by the member concerned.

(3) A notice of resignation takes effect—

(a) on the date on which the notice is received by the Chief Executive; or

(b) if a later date is specified in the notice, on that later date.

5. Removal from office

(1) The Chief Executive may remove a member from office if the member—

(a) fails to attend 3 consecutive meetings of the Commission without (in the opinion of the Chief Executive) sufficient cause;

(b) fails to comply with a conflict of interest disclosure obligation set out in any rules made by the Commission under section 34 of this Schedule;

(c) becomes bankrupt or is for the time being bound by a voluntary arrangement with his or her creditors;

(d) is, under the Mental Health Ordinance (Cap. 136), found by the Court of First Instance (or any judge of the Court of First Instance) to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs;

(e) has been found by the Tribunal or another court to have contravened a competition rule;

(f) is an officer of an undertaking that has been found by the Tribunal or another court to have contravened a competition rule;

(g) has made a commitment with the Commission under this Ordinance, or is an officer of an undertaking that has made such a commitment;

(h) becomes a member of the Tribunal or a judge of another court;

(i) is appointed by the Tribunal as an assessor under section 141; or

(j) is otherwise, in the opinion of the Chief Executive, unable or unfit to perform the functions of a member.

(2) If a member is removed from office under this section, the Chief Executive must give that member notice in writing informing the member of his or her removal from office.

(3) In this section—

“officer” (高級人員) means—

(a) in relation to a corporation, a director, manager or company secretary of the corporation, and any other person involved in the management of the corporation; and

(b) in relation to an undertaking (other than a corporation or partnership), any member of the governing body of that undertaking.

6. Vacancy in office of member

The office of a member becomes vacant if the member—

(a) dies;

(b) completes a term of office and is not reappointed;

(c) resigns from office by written notice of resignation given to the Chief Executive; or

(d) is removed from office by the Chief Executive under section 5 of this Schedule.

7. Filling of vacancy

(1) If the office of a member becomes vacant, the Chief Executive may appoint a suitable person to fill the vacancy.

(2) A person appointed to fill a vacancy under this section holds office for the term that is specified in the member’s letter of appointment and that term may extend beyond the remainder of the term of the member whose office became vacant.

8. Chairperson

(1) The Chief Executive is to appoint one of the members of the Commission (other than a member who is a public officer) to be the Chairperson of the Commission.

(2) The Chairperson may, at any time, resign from that office by giving written notice of resignation to the Chief Executive.

(3) A notice of resignation is not effective unless it is signed by the Chairperson.

(4) A notice of resignation takes effect—

(a) on the date on which the notice is received by the Chief Executive; or

(b) if a later date is specified in the notice, on that later date.

(5) The resignation of a person from the office of Chairperson does not affect that person’s term of office as a member.

(6) If the Chairperson ceases to be a member, he or she also ceases to be the Chairperson.

9. Acting chairperson

If the Chairperson is temporarily unable to perform the functions of the office of Chairperson because of illness or absence from Hong Kong or for any other cause or if the office of Chairperson becomes vacant, the Chief Executive may appoint another member to act in place of the Chairperson and perform the functions of the office of Chairperson.

PART 3
Chief Executive Officer, Staff, etc.

10. Chief Executive Officer

(1) The Commission is, with the approval of the Chief Executive, to appoint a Chief Executive Officer of the Commission on such terms as, subject to subsection (3), the Commission may determine.

(2) The Chief Executive Officer is responsible for—

(a) managing the administrative affairs of the Commission; and

(b) performing any other functions that may be assigned or delegated to the Chief Executive Officer by the Commission.

(3) The Chief Executive Officer is to be paid out of the funds of the Commission such remuneration, benefits and expenses as the Commission, with the approval of the Chief Executive, may determine.

11. Power to employ staff etc.

(1) The Commission may employ such staff and engage on contract for services such other persons as it considers necessary to perform its functions.

(2) The Commission may determine the remuneration and other conditions of employment of its staff and persons engaged on contracts for services.

(3) The Commission may provide and maintain schemes (whether contributory or not) for the payment of retirement benefits, gratuities or other allowances to its employees or former employees and their dependants.

PART 4
Meetings

12. General procedure for meetings of Commission

(1) Meetings of the Commission are to be held as often as necessary to enable the Commission to perform its functions.

(2) A meeting of the Commission may be convened by the Chairperson.

(3) The Chairperson must convene a meeting of the Commission on being given a notice for that purpose by 2 or more other members.

(4) The procedure for convening meetings of the Commission and for the conduct of business at those meetings is, subject to this Schedule and to any rules made under section 34 of this Schedule, to be determined by the Commission.

13. Quorum for meetings of Commission

(1) The quorum for a meeting of the Commission is a majority of its members.

(2) A member who participates in the meeting by telephone, video conferencing or other electronic means is to be regarded as being present at the meeting if—

(a) that member is able to hear the other members who are actually present at the meeting; and

(b) the members who are actually present at the meeting are able to hear that member.

14. Presiding member at meetings of Commission

A meeting of the Commission is to be presided over by—

(a) the Chairperson; or

(b) in the absence of the Chairperson, the acting chairperson.

15. Voting at meetings of Commission

(1) Subject to subsection (2), each member who is present at a meeting of the Commission has one vote at the meeting.

(2) The member presiding at a meeting of the Commission has a deliberative vote and also has a casting vote if the number of votes for and against a motion is equal.

(3) Voting must not be carried out by secret ballot. The member presiding at a meeting of the Commission must ask each member to indicate how he or she has voted, and the result of the vote, showing which way each member has voted, must be recorded in the minutes.

(4) A decision supported by a majority of the votes cast at the meeting of the Commission at which a quorum is present is the decision of the Commission.

16. Minutes

The Commission must cause minutes of the proceedings, including a record of all decisions made, at each meeting of the Commission to be recorded and preserved.

17. Written resolutions

(1) A resolution is a valid resolution of the Commission, even if it is not passed at a meeting of the Commission, if—

(a) it is in writing;

(b) proper notice of it is given to all members; and

(c) it is signed, or assented to, by a majority of the members by letter, fax or other electronic transmission.

(2) Subject to subsection (3), the date of a resolution referred to in this section is the date on which the last of the members constituting a majority of the members signs or assents to the resolution.

(3) If any member requests, by notice in writing addressed to the Chairperson, that a resolution proposed to be made under subsection (1) be referred to a meeting of the Commission for consideration, the proposed resolution must be referred to a meeting of the Commission.

(4) A request under subsection (3) must be made within 14 days after the day on which the notice referred to in subsection (1)(b) is given.

18. Decisions not invalidated by defects in appointment etc.

Decisions of the Commission are not invalidated solely by—

(a) any defect in the appointment of a member;

(b) a vacancy amongst its members;

(c) the absence of a member from the meeting at which the decision was taken; or

(d) any irregularity in the procedures adopted by the Commission that does not affect the decision taken.

PART 5
Financial Provisions

19. Commission to submit estimates

The Commission must, not later than 31 December in each financial year, submit to the Chief Executive estimates of its income and expenditure for the next financial year.

20. Financial year

The financial year of the Commission is the period—

(a) beginning on the day on which this Schedule comes into operation and ending on the next 31 March; and

(b) the period of 12 months ending on 31 March in each subsequent year.

21. Funds of Commission

The funds of the Commission consist of—

(a) all money paid by the Government to the Commission and appropriated for that purpose by the Legislative Council;

(b) all other money and property, including fees, interest and accumulations of income, received by the Commission.

22. Commission is exempt from taxation

(1) The Commission is exempt from taxation under the Inland Revenue Ordinance (Cap. 112).

(2) To avoid doubt, subsection (1) does not apply to or in relation to any remuneration, benefits or expenses paid out of the funds of the Commission to a member of the Commission.

PART 6
Accounts, Audit and Account Report

23. Accounts

(1) The Commission must—

(a) keep accounts and other records that accurately record and explain its financial transactions and its financial position; and

(b) ensure that a statement of accounts is prepared as soon as practicable after the end of each financial year.

(2) The statement of accounts must give a true and fair view of—

(a) the state of affairs of the Commission as at the end of that financial year; and

(b) the results of the operations and cash flows of the Commission in that financial year.

24. Commission to appoint auditor

(1) As soon as practicable after the commencement of this section, the Commission must appoint an auditor to audit its statement of accounts.

(2) The auditor must, as soon as practicable after the end of each financial year—

(a) audit the accounts and statement of accounts required under section 23 of this Schedule; and

(b) submit a report on the statement of accounts to the Commission.

25. Annual report

(1) As soon as practicable, and in any case within 6 months after the end of each financial year, the Commission must prepare a report dealing with its activities in the preceding financial year.

(2) The report must contain the following information in relation to the financial year—

(a) an outline of the investigations carried out by the Commission;

(b) a summary of complaints received; and

(c) an outline of all proceedings brought before the Tribunal.

26. Annual report and audited accounts to be laid on table of Legislative Council

As soon as practicable, and in any case within 6 months after the end of a financial year, the Commission must give a copy of—

(a) its annual report, prepared under section 25 of this Schedule;

(b) its statement of accounts; and

(c) the auditor’s report on the statement of accounts,

to the Chief Executive who must arrange for them to be laid on the table of the Legislative Council.

27. Director of Audit’s examination

(1) The Director of Audit may, in respect of any financial year of the Commission, conduct an examination into the economy, efficiency and effectiveness with which the Commission has used its resources in performing its functions.

(2) For the purpose of conducting an examination under this section, the Director of Audit is entitled, at all reasonable times—

(a) to have full and free access to all accounts, records and documents in the custody or under the control of the Commission;

(b) to make a copy of the whole or any part of those accounts, records and documents; and

(c) to require any person who holds or is accountable for the accounts, records or documents to give any information or explanation that the Director of Audit considers necessary.

(3) The Director of Audit may report to the President of the Legislative Council the results of an examination conducted under this section.

(4) Subsection (1) does not operate to entitle the Director of Audit to question the merits of the policy objectives of the Commission.

PART 7
Committees

28. Commission may establish committees

(1) The Commission may establish one or more committees—

(a) to advise the Commission on such matters (within the scope of the Commission’s functions) as the Commission refers to it; and

(b) to perform such functions of the Commission as the Commission delegates to it.

(2) A committee may consist of such persons, whether members of the Commission or not, as the Commission determines.

(3) The Commission may appoint a member of the Commission who is also a member of a committee to be the chairperson of that committee.

(4) When the Commission establishes a committee under this section, it must specify, in writing, its terms of reference.

(5) The Commission may, by notice in writing, amend the terms of reference of a committee.

(6) A committee is subject to the control of the Commission and may be discharged or reconstituted at any time by the Commission.

(7) Subject to any directions that may be given by the Commission, a committee may regulate its own procedure, including the determination of its quorum.

PART 8
Register and Disclosure of Interests

29. Register of interest

(1) A member of the Commission, or a member of a committee established by the Commission, must disclose to the Commission any interest that the member has which is of a class or description determined by the Commission under subsection (2)—

(a) in the case of a member of the Commission, on the member’s first appointment to the Commission;

(b) in the case of a member of the committee who is not also a member of the Commission, on the member’s first appointment to the committee;

(c) at the beginning of each calendar year after the member’s appointment;

(d) on becoming aware of the existence of an interest not previously disclosed under this subsection; and

(e) after the occurrence of any change to an interest previously disclosed under this subsection.

(2) The Commission may, for the purposes of this section—

(a) determine the class or description of the interest required to be disclosed;

(b) determine the details of the interest required to be disclosed and the manner in which such interest is to be disclosed; and

(c) from time to time change any matter determined under paragraph (a) or (b).

(3) The Commission is to establish and maintain a register relating to any disclosure required to be made under subsection (1) (the “register”).

(4) If a person makes a disclosure as required by subsection (1), the Commission must cause the person’s name and the particulars of the disclosure to be recorded in the register, and if a further disclosure is made, the Commission must cause the particulars of the further disclosure to be recorded in the register.

(5) The Commission must make the register available for inspection by any person—

(a) at the offices of the Commission during ordinary business hours;

(b) through the Internet or a similar electronic network; and

(c) in any other manner the Commission considers appropriate.

30. Disclosure of interests

(1) If a member of the Commission has—

(a) a pecuniary interest, whether direct or indirect; or

(b) a personal interest greater than that which the member has as a member of the general public,

in any matter under discussion at a meeting of the Commission, the member must disclose the nature of the interest at the meeting.

(2) The following provisions apply for the purposes of a disclosure under subsection (1)—

(a) the disclosure must be recorded in the minutes;

(b) if the disclosure is made by the member presiding, the member must vacate the chair during the discussion;

(c) the member (including one who has vacated the chair under paragraph (b)) must, if so required by the majority of the other members present, withdraw from the meeting during the discussion and must not in any case, except as otherwise determined by the majority of the other members present, vote on any resolution concerning the matter under the discussion or be counted for the purpose of establishing the existence of a quorum.

(3) When a matter is being dealt with by way of the circulation of written resolutions under section 17 of this Schedule, and a member of the Commission has—

(a) a pecuniary interest in the matter, whether direct or indirect; or

(b) a personal interest in the matter greater than that which the member has as a member of the general public,

the member must disclose the nature of the interest by attaching to the resolutions being circulated a note recording the disclosure.

(4) If a member has made a disclosure under subsection (3), the member’s signature (if any) is not to be counted for the purpose of section 17(1) of this Schedule unless the Chairperson directs otherwise.

(5) If the member making a disclosure in respect of a matter under subsection (3) is the Chairperson, section 17 of this Schedule ceases to apply to the matter.

(6) The validity of any proceeding of the Commission is not affected by the failure by a member of the Commission to comply with this section.

(7) Subsections (1), (2) and (6) apply to a member of a committee established by the Commission, as if any reference to the Commission in subsections (1) and (6) were a reference to the committee.

PART 9
Delegation

31. Delegation by Commission

(1) Subject to subsection (2), the Commission may delegate any of the functions of the Commission to—

(a) a person who is a member of the Commission;

(b) a committee established by the Commission;

(c) the Chief Executive Officer;

(d) an employee of the Commission by name; or

(e) the holder of any office in the Commission, designated by the Commission.

(2) Despite subsection (1), the Commission may not delegate any of the following functions—

(a) subject to sections 32 and 33 of this Schedule, its power to delegate the Commission’s functions under subsection (1);

(b) the power to issue a block exemption order under section 15;

(c) the power to vary or revoke a block exemption order under section 20;

(d) the power to issue an infringement notice under section 67;

(e) the power to appoint the Chief Executive Officer and to determine that officer’s terms of employment, under section 10 of this Schedule;

(f) the duty to give a copy of its annual report, its statement of accounts, and the auditor’s report on the statement of accounts, to the Chief Executive under section 26 of this Schedule;

(g) the power to establish any committee under section 28 of this Schedule;

(h) the power to refer any matter to a committee;

(i) the power to appoint any person to be the chairperson or a member of a committee (or to revoke any such appointment) under section 28 of this Schedule;

(j) the power to amend the terms of reference of a committee under section 28 of this Schedule;

(k) the power to discharge or reconstitute a committee under section 28 of this Schedule;

(l) the duty to submit the Commission’s estimates of income and expenditure to the Chief Executive under section 19 of this Schedule;

(m) the duty to ensure that an annual statement of accounts is prepared, under section 23 of this Schedule;

(n) the duty to prepare and issue guidelines under this Ordinance;

(o) the power to make any application to the Tribunal, under this Ordinance other than an application for an interim order under section 95 or 98;

(p) the power to appeal to the courts;

(q) the power to borrow money under section 131 with the approval of the Financial Secretary;

(r) the power to invest funds of the Commission, in a manner approved by the Financial Secretary, under section 131; or

(s) the power to authorize a person to authenticate the application of the seal of the Commission under section 35 of this Schedule.

(3) A person purporting to act under an authorization granted under subsection (1) is to be regarded, unless the contrary is proved, to have been lawfully authorized under this section.

32. Subdelegation

(1) When the Commission delegates a function under section 31 of this Schedule, it may, subject to any condition it considers appropriate, authorize the delegate to subdelegate the performance of that function, in whole or in part, to any person.

(2) A person purporting to act under an authorization granted under subsection (1) is to be regarded, unless the contrary is proved, to have been lawfully authorized under this section.

33. Delegation of power to obtain documents and information

Despite section 31 (Delegation by Commission) of this Schedule and section 32 (Subdelegation) of this Schedule, the Commission may delegate its power under section 41 (Powers to obtain documents and information) only to a member of the Commission, and that member may not subdelegate that power.

PART 10
Miscellaneous

34. Rules

The Commission may make rules—

(a) regulating the procedure to be followed at meetings of the Commission and at meetings of its committees;

(b) regulating the administration of the Commission; and

(c) regarding conflict of interest.

35. Seal of Commission

(1) The Commission must provide itself with a seal.

(2) The application of the seal must be authenticated by the Chairperson, or by some other member of the Commission authorized by the Commission for this purpose.

(3) Judicial notice is to be taken of the seal of the Commission and any document sealed with the seal is—

(a) admissible in evidence; and

(b) presumed to have been properly sealed unless the contrary is proved.