Competition Ordinance/Schedule 8

Layout 2

Consequential and Related Amendments

PART 1
Amendments to Companies Ordinance

1. Register of disqualification orders

(1) Section 168R(5) of the Companies Ordinance (Cap. 32) is amended, in the definition of “court”—

(a) in paragraph (b), by repealing “and”;

(b) in paragraph (c), by adding “and” at the end;

(c) by adding—

“(d) the Competition Tribunal established by section 134 of the Competition Ordinance (14 of 2012);”.

(2) Section 168R(5) is amended, in the definition of “disqualification order”—

(a) in paragraph (b), by repealing “or” at the end;

(b) in paragraph (c), by adding “or” at the end;

c) by adding—

“(d) section 101 of the Competition Ordinance (14 of 2012);”.

PART 2
Amendments to Companies (Disqualification Orders) Regulation

2. Officers of court to furnish particulars to Registrar

Section 3(1) of the Companies (Disqualification Orders) Regulation (Cap. 32 sub. leg. I) is amended by adding—

“(ab) if a disqualification order is made by the Competition Tribunal established by section 134 of the Competition Ordinance (14 of 2012), the Registrar of the Tribunal;”.

3. Schedule 1 amended

Schedule 1 is amended, in Form D.O. 1, by repealing item (1) and substituting—

“(1) Section of the Companies Ordinance (“CO”), the repealed Securities (Insider Dealing) Ordinance (“SIDO”), the Securities and Futures Ordinance (“SFO”) or the Competition Ordinance (“ComO”) under which the order was made^†—

Section 168E of CO
Section 168F of CO
Section 168G of CO
Section 168H of CO
Section 168J of CO
Section 168L of CO
Section 23(1)(a) of SIDO
Section 24(1) of SIDO
Section 214(2)(d) of SFO
Section 257(1)(a) of SFO
Section 258(1) of SFO
Section 303(2)(a) of SFO
Section 101 of ComO	”.

4. Schedule 3 amended

Schedule 3 is amended, in Form D.O. 3, by repealing “or the Securities and Futures Ordinance (Cap. 571)” and substituting “, the Securities and Futures Ordinance (Cap. 571) or the Competition Ordinance (14 of 2012)”.

PART 3
Amendments to Judicial Officers Recommendation Commission Ordinance

5. Judicial office

(1) Schedule 1 to the Judicial Officers Recommendation Commission Ordinance (Cap. 92) is amended by adding—

“President, Competition Tribunal

Deputy President, Competition Tribunal

Member, Competition Tribunal”

after—

“Recorder of the Court of First Instance”.

(2) Schedule 1 is amended by adding—

“Registrar of the Competition Tribunal

Senior Deputy Registrar, Competition Tribunal

Deputy Registrar, Competition Tribunal”

after—

“Assistant Registrar, High Court”.

PART 4
Amendments to Telecommunications Ordinance

6. Interpretation

(1) Section 2(1) of the Telecommunications Ordinance (Cap. 106) is amended by repealing the definitions of “associated corporation”, “associated person”, “control” and “relative”.

(2) Section 2(1) is amended, in the definition of “dominant position”, by repealing “section 7L” and substituting “section 7Q”.

(3) Section 2(1) is amended, in the definition of “telecommunications market”, by repealing “or customer equipment or services” and substituting “telecommunications services, or customer equipment”.

7. Powers of Authority in relation to services with places outside Hong Kong

Section 6B is repealed.

8. Guidelines

(1) Section 6D(2)(aa) and (2A) is repealed.

(2) Section 6D(4)(a) is amended by repealing “section 7L(2)” and substituting “section 7Q(2)”.

9. Anti-competitive practices

Section 7K is repealed.

10. Abuse of position

Section 7L is repealed.

11. Non-discrimination

Section 7N is repealed.

12. Authority may regulate changes in relation to carrier licensees

Section 7P is repealed.

13. Section 7Q added

The following is added—

“7Q. Exploitative conduct

(1) A licensee in a dominant position in a telecommunications market must not engage in conduct that in the opinion of the Authority is exploitative.

(2) A licensee is in a dominant position if, in the opinion of the Authority, it is able to act without significant competitive restraint from its competitors and customers.

(3) In considering whether a licensee is dominant, the Authority must take into account relevant matters including, but not limited to—

(a) the market share of the licensee;

(b) the licensee’s power to make pricing and other decisions;

(c) any barriers to entry to competitors into the relevant telecommunications market;

(d) the degree of product differentiation and sales promotion;

(e) any other relevant matters specified in guidelines issued under section 6D for the purposes of this section.

(4) Without limiting subsection (1), the Authority may consider the following conduct to be exploitative—

(a) fixing and maintaining prices or charges at an excessively high level; and

(b) setting unfair trading terms and conditions,

for or in relation to the provision of interconnection of the type referred to in section 36A(3D).”.

14. Part VC heading amended

The heading of Part VC is amended by repealing “7K, 7L, 7M, 7N and 7P” and substituting “7M and 7Q”.

15. Interpretation

(1) Section 32L is amended, in the definition of “appeal”, by repealing “, (1A), (1B) or (1C)”.

(2) Section 32L is amended, in the definition of “appeal subject matter”, in paragraph (a)(i), by repealing “7K, 7L, 7M or 7N” and substituting “7M or 7Q”.

(3) Section 32L is amended, in the definition of “appeal subject matter”, by repealing paragraph (b).

16. Appeals to Appeal Board

(1) Section 32N(1)(a)(i) is amended by repealing “7K, 7L, 7M or 7N” and substituting “7M or 7Q”.

(2) Section 32N(1A), (1B) and (1C) is repealed.

(3) Section 32N(3) is amended by repealing “subsection (1A), (1B) or (1C) or”.

17. Procedure and powers of Appeal Board, etc.

Section 32O(2) is amended by repealing “, or before the opinion, direction or decision referred to in section 32N(1A), (1B) or (1C) was formed, issued or made, as the case may be”.

18. Remedies

Section 39A(1) is amended by repealing “7K, 7L, 7M or 7N” and substituting “7M or 7Q”.

19. Matters to be taken into account by Authority

Schedule 2 is repealed.

20. Specified amount

Schedule 3 is repealed.

PART 5
Amendments to Prevention of Bribery Ordinance

21. Public bodies

Schedule 1 to the Prevention of Bribery Ordinance (Cap. 201) is amended by adding—

“123. Competition Commission.”.

PART 6
Amendments to Broadcasting (Miscellaneous Provisions) Ordinance

22. Interpretation

(1) Section 2 of the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391) is amended, in the Chinese text, in the definition of “廣播投訴委員會”, by repealing “會。” and substituting “會；”.

(2) Section 2 is amended by adding—

““Commission” (競委會) means the Competition Commission established by section 129 of the Competition Ordinance (14 of 2012);”.

23. Consideration of complaints by the Complaints Committee

Section 11(2)(a) is repealed and the following substituted—

“(a) any matter in respect of which the Authority may, under Part 11 of the Competition Ordinance (14 of 2012), perform concurrently with the Commission the functions of the Commission under that Ordinance; or”.

24. Consideration of complaint that a licensee has contravened section 13(1) or 14(1) of Broadcasting Ordinance

Section 11A is repealed.

PART 7
Amendments to The Ombudsman Ordinance

25. Organizations to which this Ordinance applies

Part I of Schedule 1 to The Ombudsman Ordinance (Cap. 397) is amended by adding—

“Competition Commission.”.

PART 8
Amendments to Broadcasting Ordinance

26. Interpretation

Section 2(1) of the Broadcasting Ordinance (Cap. 562) is amended by repealing the definition of “dominant position”.

27. Guidelines

Section 4(2)(c) and (3) is repealed.

28. Prohibition on anti-competitive conduct

Section 13 is repealed.

29. Prohibition on abuse of dominance

Section 14 is repealed.

30. Provisions supplementary to sections 13 and 14

Section 15 is repealed.

31. Notice to licensee to cease certain conduct

Section 16 is repealed.

32. Confidential matter to be safeguarded

(1) Section 27(1) is amended by repealing “subsection (2)” and substituting “subsections (1A) and (2)”.

(2) Section 27 is amended by adding—

“(1A) Subsection (1) does not apply to any information that is furnished, or any data, book, document or record that is produced, to the Authority under the Competition Ordinance (14 of 2012).”.

33. Licensee to pay financial penalty

Section 28(4) is repealed.

34. Suspension of licence

Section 31(2)(a)(ii)(A) is repealed.

35. Revocation of licence

Section 32(4)(a)(ii)(A) is repealed.

36. Regulations

Section 42(4) is repealed.

PART 9
Amendments to Communications Authority Ordinance

37. Functions of Authority

Section 4 of the Communications Authority Ordinance (Cap. 616) is amended by adding—

“(1A) The Authority has all the functions conferred on it by or under Part 11 of the Competition Ordinance (14 of 2012).”.