One often reads about regulations and guidelines that are published by government and regulators, and they may seem daunting and complex.
Unpacking these regulations and guidelines is an attempt to enhance transparency and the promotion of a stakeholder-centric environment where business, government and regulators can collaborate for the creation of inclusive economic growth.
These regulations and guidelines provide a road map for stakeholders such as the public, government institutions and the business fraternity to navigate and understand the offerings an entity has, or even the legal framework of an act.
One such road map, the Final Regulations on Non-Binding Advisory Opinions, was published in December by the department of trade, industry & competition. These regulations explain what non-binding advisory opinions are and how stakeholders like small businesses, micro enterprises and large firms can approach the Competition Commission for guidance.
Non-binding advisory opinions provide guidance to stakeholders on how to comply with the provisions of the Competition Act of 1998 (as amended). These opinions are for stakeholders with guidance on the position that the commission is likely to take in respect of certain transactions, agreements or practices. They are like having an expert consultant tell you how the competition laws apply to your situation, but without making a legally binding decision.
The recently published regulations set out the process for requesting non-binding advisory opinions from the commission and lists the required documentation and information that should be included in the request. Information that should be included range from the identity of the requesting party and the markets in which they operate, to the reasons for seeking the opinion, and all relevant supporting documentation.
In what instances can a non-binding advisory opinion be helpful? The commission's team of legal experts can provide stakeholders with a deeper understanding of how they can comply with the Competition Act and may advise on aspects that range from whether a merger transaction is notifiable, give feedback on an institution’s competition policy and highlight possible anticompetitive conduct in proposed agreements, among others.
A non-binding advisory opinion can s pave the way for small enterprises and other stakeholders to prevent noncompliance with the Competition Act as their businesses grow.
Are there any fees payable to obtain a non-binding advisory opinion? The commission’s legal team can provide non-binding advisory opinions to stakeholders at a fee that is set out in the new regulations and applicable to different categories of firms for obtaining advisory opinions. The commission may use its discretion to waive fees for certain entities such as micro enterprises, nonprofit, constitutional institutions and government departments. The commission may decline requests if they fall outside its jurisdiction or require formal investigation, with any fees paid refunded without delay.
Stakeholders can submit requests for non-binding advisory opinions to ccsa@compcom.co.za
The commission is obligated to issue the non-binding advisory opinion within 30 business days of receiving a request, with extensions allowed for complex matters.
Makunga is spokesperson for the Competition Commission of SA.
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