The Competition Amendment Bill of 2018 introduces harsher penalty provisions which increase the enforcement powers of the competition authorities for purposes of deterring anti-competitive conduct. Removal of the ‘yellow card’ Currently, the Competition Act only allows for administrative penalties to be imposed in relation to certain prohibited practices if the conduct has been repeated by the same firm (i.e. a second-time offence). The Bill provides for the removal of the yellow card by imposing penalties for all first time contraventions. The motivation for the removal of the yellow card, besides increased deterrence, is that the Act has been in force since 1998, and firms should be aware of how to comply and therefore should comply strictly. There are issues with this thinking: There is hardly any case law dealing with the provisions that are currently subject to a yellow card (precisely because they do not carry penalties). These practices are also highly fact…
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