The Competition Ordinance (Ordinance) provides for certain exclusions and exemptions which, if applicable, will mean that the First Conduct Rule and/or the Second Conduct Rule do not apply.
Agreements or conduct falling within the scope of an exclusion or exemption will not contravene the Ordinance and there is no requirement to apply to the Competition Commission (Commission) for a decision to secure the benefit of a particular exclusion or exemption.
However, undertakings wishing to confirm whether or not an agreement or conduct is excluded or exempt from the First Conduct Rule and/or the Second Conduct Rule may choose to apply to the Commission for a decision under section 9 and/or section 24 of the Ordinance.
Undertakings or associations of undertakings may also apply to the Commission for a block exemption order confirming that a particular category of agreement falls within the scope of the exclusion for agreements enhancing overall economic efficiency. Please refer to our Applications for a Block Exemption Order page and Policy Documents for further details.
General guidance on such applications is available in the Commission’s Guideline on Applications for a Decision under Sections 9 and 24 (Exclusions and Exemptions) and Section 15 Block Exemption Orders. Decisions in respect of past Applications may also be a useful reference. The Register of Block Exemption Orders sets out all the block exemption orders issued by the Commission.
Applicants may approach the Commission for an Initial Consultation prior to making an application. They are encouraged to seek independent legal advice before doing so.
Enquiries regarding applications to the Commission for a decision or for arranging an Initial Consultation can be made by email at [email protected].
Applicants should note that the Annex to Form AD need only be completed in respect of applications for a Commission decision that a particular agreement is excluded from the application of the First Conduct Rule by or as a result of section 1 (Agreements enhancing overall economic efficiency) of Schedule 1 to the Ordinance.
It may not be possible for the Commission to make a decision if the information provided in an application is insufficient. Applicants should discuss with the Commission during the Initial Consultation the scope of information required for the purposes of completing Form AD.
Completed applications should be submitted by sending the following to the office of the Commission:
The office of the Commission is at:
Room 3601, 36/F, Wu Chung House
213 Queen’s Road East
Wanchai, HONG KONG
The Commission will confirm receipt shortly after receiving the application. Applicants will subsequently be notified whether or not the Commission will proceed to consider the application.
Further steps and possible outcomes of the applications process are explained in the Commission’s Guideline on Applications for a Decision under Sections 9 and 24 (Exclusions and Exemptions) and Section 15 Block Exemption Orders.
Where a person provides any personal data1 to the Commission whether in the context of making a complaint, an enquiry, an application for a decision under section 9 and/or 24 of the Competition Ordinance, an application for a block exemption order under section 15 of the Ordinance, or in any other context, the Commission will use the data for the purpose of performing its statutory functions under the Competition Ordinance generally and not merely for the purpose of responding to or taking action in respect of the particular complaint, enquiry, application or other matter concerned.
In this regard, the personal data may be used for any one or more of the following purposes:
Although the Commission is under a duty of confidentiality imposed by law, the Commission may transfer and/or disclose personal data to third parties pursuant to section 125(2) of the Competition Ordinance. These third parties include but are not limited to the Commission’s professional advisers or other public authorities in Hong Kong including authorities involved in law enforcement. Moreover, for the purposes of carrying out the Commission’s enforcement functions under the Competition Ordinance, personal data may be disclosed to the Competition Tribunal and other relevant courts.
In certain cases the Commission may transfer personal data to competition authorities or other authorities situated outside Hong Kong. The Commission will take all reasonable steps to ensure that the personal data so transferred is given equivalent protection to that required in Hong Kong or that the terms of section 33 of the Personal Data (Privacy) Ordinance are otherwise complied with (as and when section 33 comes into force).
Subject to any applicable provisions of the Competition Ordinance and the Personal Data (Privacy) Ordinance, personal data may be used by the Commission and/or disclosed by the Commission to other public bodies in Hong Kong or authorities overseas for the purposes of verifying/matching2 the data.
1 Personal data means personal data as defined in the Personal Data (Privacy) Ordinance, Cap. 486.
2 See section 2 of the Personal Data (Privacy) Ordinance for an explanation of matching procedure.