Competition commission to redefine ‘dominant players’

The authorities are drafting amendments to the Competition Commission Act, enacted in 2012, to establish clearer criteria for identifying dominant market players across various sectors, according to officials.

The law was made to promote, ensure and sustain a congenial atmosphere for competition in trade and to prevent, control and eradicate collusion, monopolies and oligopolies, combination or abuse of dominant position, or activities adverse to the competition.

Officials said the changes aim to enhance regulatory oversight and support fair market competition. Clearly defining dominant market players has emerged as a key focus, as the commission seeks to mitigate potential anti-competitive practices by influential entities.

"While overseeing some cases, we found that the current act lacks a clear definition of who is dominating what sector," said Afroza Bilkis, member for law at the Bangladesh Competition Commission (BCC), yesterday.

"It is not feasible to specify every dominant player in every sector within the act. Therefore, we are working to amend it in a way that allows subsequent rules to define such players more clearly," Bilkis told The Daily Star.

According to Bilkis, the amendments will lead to the introduction of a market threshold clause, such as market share percentages, to provide a basis for identifying dominant players.

The commission formed a 13-member committee on February 16 this year to amend the law, including representatives from the legislative division, Federation of Bangladesh Chambers of Commerce and Industry, lawyers from the Supreme Court, academicians, and other relevant sector experts.

A draft of the amended law is scheduled to be submitted to the commission's chairman by June 1. Following a stakeholder consultation meeting, the draft will be forwarded to the Ministry of Commerce.

Under the draft, if any individual, even acting alone and beyond any collusive arrangement, directly or indirectly exerts an adverse impact on market competition in the production, supply, or storage of any goods or services, the BCC can act against him or her.

Currently, the law states that no person shall directly or indirectly enter into any agreement or collusion -- in respect of production, supply, distribution, storage or acquisition of any goods or services -- which causes or is likely to cause an adverse effect on competition or creates monopoly or oligopoly in the market.

At present, individuals aggrieved by an order of the BCC can appeal to the Commerce Secretary for reconsideration. However, the draft of the amended law proposes a shift in this process.

Recognising the quasi-judicial nature of the commission, the draft calls for the establishment of a dedicated Competition Appellate Tribunal. This specialised body will serve as a proper forum for reviewing and hearing appeals against the commission's decisions, it added.

AHM Ahsan, chairperson of the BCC, said the law is being amended to comprehensively cover all forms of anti-competitive activities.

What experts say

Professor Mustafizur Rahman, a distinguished fellow of the Centre for Policy Dialogue, said if these sections of the law are ultimately amended, the commission will become more powerful.

These amendments will bring more clarity to the law and strengthen enforcement, he said, adding that and if a dedicated competition appellate tribunal is formed, it will ensure the commission's independence.

"However, alongside all this, the institutional capacity of the commission must be increased. That means bringing in people who understand the law well, have the capacity, and understand market management," he added.

According to Azhar Uddin Bhuiyan, lecturer at the department of law of the University of Dhaka, to ensure the effectiveness of the provision on anti-competitive agreements, it must be supported by a block exemption regulation.

This regulation would specify agreements that do not require clearance from the Commission, and those which will remain subject to its competition scrutiny, he said.

He added that the threshold for determining a market's dominant player must be established through an evidence-based policymaking process.

He said that an effective Competition Commission should adopt an evidence law–compliant scrutiny mechanism to assess anti-competitive activities and clearly demonstrate this in its judgments.

He said that the appellate tribunal must be composed of professionals who are experts in competition law, considering the specialized nature of the legislation.