| (1) |
A firm may apply to the Competition Commission to exempt from the application of this Chapter— |
| (a) |
an agreement or practice, if that agreement or practice meets the requirements of subsection (3); or |
| (b) |
a category of agreements or practices: if that category of agreements or practices meets the requirements of subsection (3). |
| (2) |
Upon receiving an application in terms of subsection (1), the Competition Commission must— |
| (a) |
grant a conditional or unconditional exemption for a specified term, if the agreement or practice concerned, or category of agreements or practices concerned, meets the requirements of subsection (3); or |
| (b) |
refuse to grant an exemption. if- |
| (i) |
the agreement or practice concerned, or category of agreements or practices concerned, does not meet the requirements of subsection (3); or |
| (ii) |
the agreement or practice, or category of agreements or practices, does not constitute a prohibited practice in terms of this Chapter. |
| (2A) |
Unless the Competition Commission and the applicant agree otherwise, the Competition Commission must grant or refuse to grant the exemption referred to in subsection (2) within one year of the receipt of the application or within such period as may be prescribed in terms of section 78.
|
[Section 10(2A) inserted by section 7(a) of Notice No. 175, GG 42231, dated 14 February 2019]
| (3) |
The Competition Commission may grant an exemption in terms of subsection (2)(a) only if— |
| (a) |
any restriction imposed on the firms concerned by the agreement or practice concerned, or category of agreements or practices concerned, is required to attain an objective mentioned in paragraph (b); and |
| (b) |
the agreement or practice concerned, or category of agreements or practices concerned, contributes to any of the following objectives: |
| (i) |
maintenance or promotion of exports; |
| (ii) |
promotion of the effective entry into, participation in or expansion within a market by small and medium businesses, or firms controlled or owned by historically disadvantaged persons; |
[Section 10(3)(b)(ii) substituted by section 7(b) of Notice No. 175, GG 42231, dated 14 February 2019]
| (iii) |
change in productive capacity necessary to stop decline in an industry; |
| (iv) |
the economic development, growth, transformation or stability of any industry designated by the Minister, after consulting the Minister responsible for that industry; or |
[Section 10(3)(b)(iii)(iv) substituted by section 7(c) of Notice No. 175, GG 42231, dated 14 February 2019]
| (v) |
competitiveness and efficiency gains that promote employment or industrial expansion. |
[Section 10(3)(b)(v) inserted by section 7(d) of Notice No. 175, GG 42231, dated 14 February 2019]
| (4) |
A firm may apply to the Competition Commission to exempt from the application of this Chapter an agreement or practice, or category of agreements or practices, that relates to the exercise of intellectual property rights, including a right acquired or protected in terms of the Performers’ Protection Act, 1967 (Act No. 11 of 1967), the Plant Breeders’ Rights Act, 1976 (Act No. 15 of 1976), the Patents Act, 1978 (Act No. 57 of 1978), the Copyright Act, 1978 (Act No. 98 of 1978), the Trade Marks Act, 1993 (Act No. 194 of 1993), and the Designs Act, 1993 (Act No. 195 of 1993). |
| (4A) |
Upon receiving an application in terms of subsection (4), the Competition Commission may grant an exemption for a specified term. |
| (5) |
The Competition Commission may revoke an exemption granted in terms of subsection (2)(a) or subsection (4A) if— |
| (a) |
the exemption was granted on the basis of false or incorrect information; |
| (b) |
a condition for the exemption is not fulfilled; or |
| (c) |
the reason for granting the exemption no longer exists. |
| (6) |
Before granting an exemption in terms of subsection (2) or (4A) or revoking an exemption in terms of subsection (5), the Competition Commission— |
| (a) |
must give notice in the Gazette of the application for an exemption, or of its intention to revoke that exemption; |
| (b) |
must allow interested parties 20 business days from the date of that notice to make written representations as to why the exemption should not he granted or revoked; and |
| (c) |
may conduct an investigation into the agreement or practice concerned, or category of agreements or practices concerned. |
| (7) |
The Competition Commission, by notice in the Gazette, must give notice of any exemption granted, refused or revoked in terms of this section. |
| (8) |
The firm concerned, or any other person with a substantial financial interest affected by a decision of the Competition Commission in terms of subsection (2), (4A) or (5), may appeal that decision to the Competition Tribunal, in the prescribed manner. |
| (9) |
At any time after refusing to grant an exemption in terms of subsection (2)(b)(ii) the Competition Commission— |
| (a) |
may withdraw its notice of refusal to grant the exemption, in the prescribed manner: and |
| (b) |
if it does withdraw its notice of refusal, must reconsider the application for exemption. |
| (10) |
The Minister may, after consultation with the Competition Commission, and in order to give effect to the purposes of this Act as set out in section 2, issue regulations in terms of section 78 exempting a category of agreements or practices from the application of this Chapter. |
[Section 10(10) inserted by section 7(e) of Notice No. 175, GG 42231, dated 14 February 2019]
[Section 10 substituted by section 5 of Notice No. 1354, GG 21880, dated 13 December 2000]
Protection of Businesses Act, 1978
