Overview
On 22 February 2023, the Ministry of Commerce (“MOC”) issued a new regulation on the Forms and Procedures for Issuance of Temporary Suspension Measures and/or Decisions by the Cambodia Competition Commission (“CCC”) to strengthen the enforcement of the Law on Competition (“Competition Law”) in Cambodia.
Thereafter, on 24 February 2023, the MOC issued an additional decision on the Formalities and Procedures for the Calculation of Pecuniary Penalties under the Law on Competition to ensure that the calculation of pecuniary penalties is transparent and effective. Additionally, on 29 March 2023, the Ministry of Economy and Finance and the MOC issued a Joint Prakas regarding the Fines for Persons Violating the Provisions of the Competition Law.
Issuance of Interim Decisions and Appeal Process
Where an investigating officer has reasonable basis to believe that the substantive provisions of the Competition Law have or are likely to be violated, a request may be made to the CCC for issue of an interim measure. If the CCC considers it necessary as a matter of urgency to prevent severe and/or irreparable damage to the economy or any person or to protect the public interest in cases of emergency, it may issue an order to suspend the effect of, and/or desist from acting on, any agreements which are suspected of violating Article 7, Article 8, Article 9, and Article 11 of the Competition Law. The CCC may withdraw an interim measure at any time, otherwise it will terminate once a final decision is issued or one year from the date of its issue or re-issue.
The CCC may issue a decision with respect to a potential violation after receiving a request from an investigating officer at the conclusion of an investigation. Decisions are issued to the person subject to the decision only and must be made public. Additionally, the decision must specify, among others, the basis in determining that the Competition Law has been violated, the name and address of the relevant parties and/or their legal representative, confirmation of the deadline and details related to the payment of penalties, and the reason for the CCC’s decision.
Such persons may submit an appeal within 15 days from the date of receipt of the CCC’s decision and/or notification of interim measures (if any) to the CCC and the CCC has 30 days to respond. If the CCC rejects the initial appeal, such persons may further appeal to the competent court within 30) days of the CCC’s notice regarding the rejection.
The interim measure or decision is still effective even if there is a pending appeal. If the terms of an interim measure or decision are not complied with, the CCC may seek assistance from a competent court.
Calculation of Penalties
Despite the general range provided below, the calculation of the monetary penalties by the CCC must be based on the following steps:
- Calculation of statutory penalty: which is the minimum and maximum pecuniary penalties provided by law or regulation.
- Calculation of base penalty: which is a result of multiplying a percentage rate determined by the CCC with the violator’s relevant turnover and multiplied by the period of infringement.
- Adjustment of base penalty with the aggravating and mitigating circumstances: specific circumstances of the violation may be considered resulting in an increase or decrease of the penalty, including, the degree of organization, role of the person involved in the infringement, and size of the business of the violator.
- Adjustment of base penalty with the statutory penalties: the penalty must be further adjusted against the range of the statutory penalties.
- Final adjustment: in the event that the violator has successfully negotiated a settlement pursuant to the CCC’s regulations, the final penalty can be decreased further in accordance with the agreed percentage. For more information regarding negotiated settlements, please refer to our alert.
Range of Penalties
A fine of between 3% to 10% of the violator’s revenue earned during the period of infringement (not exceeding three years) will be applied to any person who has violated Article 8 (Vertical Anti-Competitive Agreements), Article 9 (Abuse of Dominant Market Position), and Article 11 (Anti-Competitive Business Combinations) of the Competition Law.
For violation of Article 7 (Horizontal Anti-Competitive Agreements), the Competition Law provides that natural persons could be subject to a term of imprisonment from one (1) month to two (2) years, in addition to a fine of between KHR 5,000,000 (approximately USD 1,250) to KHR 100,000,000 (approximately USD 25,000). Whereas a legal entity could be subject to a fine of between 100,000,000 (approximately USD 25,000) to KHR 2,000,000,000 (approximately USD 500,000).
With the introduction of the above regulations, the CCC has sufficient legal framework to impose fines on violators of the Competition Law. It is important that you seek legal advice in a timely manner should you have doubt whether your business arrangements comply with the Competition Law.
Should you have any concerns or queries on the matters mentioned above, please feel free to contact us at [email protected].
