On the efficacy of the competition law
The government of Bangladesh passed the Competition Act in 2012. The primary purpose of enacting this law is to promote, ensure, and sustain a congenial atmosphere for the competition in trade and prevent, control, and eradicate collusion, monopoly, oligopoly, combination or abuse of powerful positions or activities adverse to the competition.
We have recently witnessed the artificial crisis of edible oil in the market. It is not something new. Some business houses frequently orchestrate such crises. Last year's crisis of onion is a prime example. For the first time, the Bangladesh Competition Commission (BCC) has recently filed a case against eight companies importing edible oil to control the market price by creating cartel and oligopoly under section 15 of the 2012 Act.
According to section 8 of the Act, the BCC may, either on its motion or any allegation, inquire into any complaint made under this Act and issue summon to any person to present before the BCC. In this regard, the Code of Civil Procedure, 1908 will be applied. After sending a notice to any persons or associations, the BCC may, after giving a reasonable opportunity to be heard to the concerned parties, dispose of or settle the issue with necessary directions before conducting an inquiry under this Act (section 17). Section 18 states that if this is not disposed of, the BCC may inquire about any agreement or misuse of powerful/dominant position which is harmful to the relevant market. The BCC may inquire about this matter by suo motu or by taking any complaint from anyone. Section 19 states that the BCC, if it is satisfied after conducting an inquiry, shall take proper interim action to restrain such person from carrying on such activities which violate the provision of sections 15-16. After inquiry under section 18, if the BCC finds the legality of the complaint, it may impose a financial penalty which may not exceed 10% of the average of his turnover for the last three preceding years. If any cartels occur then up to 3 times of its profit for each year of the continuance of such agreement or 10% of the average of his turnover for the last three preceding financial years, whichever is higher. Section 21 states that if any anti-competition agreement is entered into outside of Bangladesh by any person or enterprise, the BCC may inquire into the matter by laws of both countries. The BCC's judgment has the same effect as any judgment given by the trial court. If anyone violates this, he/she shall be punished with imprisonment for a term not exceeding one year with fine of one lac taka.
However, our present legislation relating to competition law is not complete. Unlike India, there is no separate court to try the offences under this Act. Another shortcoming is that the BCC lacks enough experts by whom such trial may be properly conducted. An appeal against the judgment given by the BCC has to be filed before the government. We know that the businesses have a strong influence over the government. This is also a ground which raises concerns about the efficacy of the BCC.
The BCC has started its journey with limited resource but having mountainous burden. Our government should update the existing laws relating to competition and appoint enough officials so that the Commission can perform its duties skillfully.
The writer is an Advocate, Supreme Court of Bangladesh.