PUBLISHED : Tuesday, 29 March, 2011, 12:00am
UPDATED : Tuesday, 29 March, 2011, 12:00am

Legal concerns over proposed competition law

The discussion about the proper foundation for the Competition Bill is gaining tremendous depth and momentum. In an interesting contribution to these columns ('EU welcomes competition law in Hong Kong', March 23) the head of the European Union Office to Hong Kong and Macau, Maria Castillo, highlighted the differences between EU law and the Competition Bill.

It is no secret though that the EU model has had a profound influence over the drafters of the bill. Yet, some could argue that the EU model may not be entirely suitable in Hong Kong, as it pursues EU-specific goals (internal market, industrial policy) and it is a complex regime which bears the risks of unpredictability and internal inconsistency.

On the key issue of what constitutes illegal behaviour, the bill embraces the identical far-reaching test as the EU regime. Under the bill's First and Second Conduct Rules, which target anti-competitive agreements and abuse of market power respectively, conduct having 'as its object or effect the prevention, restriction or distortion of competition' would be prohibited.

Similarly, the grounds for exemption under the bill are based on the same criteria as the EU system. In effect, businesses will have to make their own assessment as to the legality of their practices and if they get it wrong (for reasons that could emerge long after the fact), they may face significant fines. (Although the bill allows businesses to seek comfort from the future commission, the EU experience shows that such a system may be ultimately unworkable due to the large demand for clearances.)

The analogy with the EU system goes beyond substantive tests. The legal architecture of the bill has largely borrowed from the EU, where the general framework (Treaty and Regulations) is complemented by non-binding 'guidelines' adopted by the European Commission on an ad hoc basis. Guidelines are said to provide flexibility as they allow the commission to adapt to changing realities, but at the same time they introduce a level of uncertainty.

In Hong Kong, this law-making process, together with the self-assessment requirement, understandably raise concerns, which turn on the issues of legal certainty and fairness in the application of the law. Both concerns are real, and ought to be evaluated in light of the bill's compatibility with Hong Kong's Basic Law.

In interpreting the Basic Law, Hong Kong courts have been guided by the European Convention on Human Rights. Notably, enshrined in Article 7(1) of the convention is the principle of nullum crimen, nulla poena sine lege which calls, in a European competition law context, for offences 'clearly defined by the law' (Case T-99/04, AC-Treuhand v. Commission).

Ms Castillo is right to underscore the importance of local imperatives in the shaping of a new competition law. At the moment, Hong Kong people and businesses need to be reassured that, in the absence of pre-existing local case law, their business practices will not fall foul of the prohibitions under the bill without proper warning.

Clara Ingen-Housz, competition counsel, Baker & McKenzie

Society must help elderly

Hong Kong faces a problem with its ageing population.

It is acknowledged that the number of elderly in the city will steadily increase and this obviously puts more pressure on our resources. This is an issue that has to be recognised and tackled effectively.

Nowadays, some elderly people are leading tough lives. They can no longer earn a living and cannot afford decent accommodation. They are often entirely dependent on whatever government subsidies they are entitled to and any help they can get from their families.

Their pensions may be meagre. During their working lives they contributed a great deal to society and this is a debt we should repay. Something has to be done to improve the situation of those elderly who have fallen on hard times with, if necessary, a reallocation of government resources.

Maggie Cheung, Kwun Tong

Make people pay for e-waste

The system of collecting and recycling discarded electronic and electrical appliances could face a major overhaul.

The government has proposed recycling fees for consumers and vendors for handling such e-waste in Hong Kong.

Consumers should pay such fees when they want to get rid of electrical appliances and gadgets. Also, retailers could be required to take back old appliances, and many recycling yards in the New Territories face licensing regulations when they store this kind of waste.

I think the government has put forward these proposals because of concerns over the problem of global warming.

We discard too many electrical appliances in Hong Kong.

This kind of wasteful action by citizens is damaging the environment.

If consumers and vendors face some kind of recycling fee structure this could reduce these levels of waste as consumers would take more care and think twice before throwing out an electrical appliance.

Through this proposal consumers and shops will face a greater economic burden for recycling services.

Natalie Wong Hoi-yi, To Kwa Wan

Wild dogs cull long overdue

Toh Zheng Han has every right to be angry after being bitten by 'two large black dogs' ('Dogs a danger to the public', March 25).

However he does not clarify if these were domesticated or wild feral dogs.

Hong Kong has a growing and out of control wild dog problem. These animals roam in packs, scavenge for food, breed uncontrollably and are indeed a danger to the public.

As the owner of three domesticated dogs, I agree with Mr Toh completely and request the government to start a cull of wild dogs to prevent further attacks.

Mark Peaker, The Peak

Report attack to police officers

I was sorry to read that Toh Zheng Han was bitten by dogs while running in Yue Kok, Tai Po ('Dogs a danger to the public', March 25).

He correctly states that 'something needs to be done' and he should call the police or Agriculture, Fisheries and Conservation Department who will send out inspectors to investigate the problem and take the necessary action.

Hong Kong already has legislation concerning the muzzling and leashing of large dogs, or does Mr Toh have something else in mind? He also correctly states that 'Hong Kong citizens are entitled to keep dogs' and I believe the large majority of dog owners understand their responsibilities.

If a dog bites an innocent passer-by, who does nothing to provoke the dog, the owner should be held responsible and should be dealt with under the appropriate law. But I also believe that individuals should take some responsibility for their own safety.

While in no way blaming Mr Toh for this unfortunate incident, it should be well known that dogs are territorial by nature and encroaching into what the dogs perceive as 'their territory' is not a sensible action. The world is not a perfect place and it is important not to overreact to isolated incidents, however unfortunate they might be.

Keith McNab, Sai Kung

Protesters should be fined

Given that littering is against the law, I wonder why none of those hundred-odd protesters on March 27 who threw paper-offering bank notes in the streets of Central ('Protesters charge police in latest anti-budget rally', March 28) have been fined for the offence.

Are they above the law? In any event, it is highly irresponsible of them to increase the burden of our street cleaners by leaving rubbish on the ground.

These egocentric protesters, who never seem to care about the rights and feelings of other road-users, have much to learn from the Japanese earthquake and tsunami victims, who, despite the trying circumstances, did not leave behind as much as a fleck of dust in the refuge centres for others to clean up.

Clara Choy, Ho Man Tin

Nuclear policy is dangerous

The disaster in Japan with radiation leaks from the damaged power plant has made me think about whether it would be correct policy to build more nuclear plants.

We do not have enough natural resources, which is why Japan built nuclear plants. I have to question the wisdom of this policy in a nation that is prone to earthquakes. This nuclear power policy is dangerous. We need to ensure that nuclear plants can be made safer before building new ones. The Japanese government must work harder at developing renewable energy such as solar power.

Polly Lam Po-yu , Hung Hom

Heroic workers

The world faces a serious crisis if workers are unable to repair the Fukushima power plant in Japan, which was damaged by the earthquake and tsunami.

I think the workers who have stayed behind to deal with the problems at the facility are heroes as they try to prevent further leaks of radiation.

I am very impressed by their courage, especially as they know they could lose their lives through the work they are doing. I am sure people all over the world feel the same as I do about these individuals.

I do hope that they will eventually be able to make the necessary repairs and that Japan can emerge from this very difficult period.

Ruby Wong, Kwun Tong