Competition Protection Agency Resolution No. 14 of 2021 Issuing the Executive Regulations of Law No. 72 of 2020 on Competition Protection

Competition Protection Agency Resolution No. 14 of 2021
Issuing the Executive Regulations of Law No. 72 of 2020 on Competition Protection

Chapter One – Definitions and General Provisions

Article 1

In applying the provisions of the Law and these Regulations, the following words and expressions shall have the meaning assigned to each of them:
– Minister: the Minister of Commerce and Industry.
– Law: Law No. (72) of 2020 on Competition Protection.
– Regulations: the Executive Regulations of Law No. (72) of 2020 on Competition Protection.
– Agency: the Competition Protection Agency.
– Board: the Board of Directors of the Agency.
– Chairman: the Chairman of the Board.
– Secretary: the Secretary of the Board of Directors of the Agency.
– Persons: any natural or legal person engaged in an economic or commercial activity, irrespective of its legal form, including traders, companies, associations, unions, establishments and other persons, associations or groupings of persons, or any other economic or commercial entities under its direct or indirect control.
– Economic activity: any activity involving the production or supply of goods or the provision of services in the State.
– Commercial activity: any activity involving the sale or trading of products in the State.
– Products: domestic and imported goods and services.
– Agreements: include agreements, contracts, decisions, arrangements, acts, conduct, alliances or practices between two or more persons, or any cooperation between persons, or decisions issued by groupings of persons, whether written or oral, express or implied, public or secret, direct or indirect.
– Competitors: persons actually engaged in an economic, commercial or service activity in the relevant market, or likely to engage in such activity in the future.
– Horizontal relationships: agreements concluded between competitors at the same level of the stages of production or of the distribution chain in the relevant market.
– Vertical relationships: agreements concluded between competitors at different levels of the stages of production or of the distribution chain in the relevant market.
– Dominant position: the position that enables any person, alone or jointly with other persons, to control or influence the relevant market and to act to a large extent independently of its competitors, customers or consumers.
– Concerted practices: a form of coordination between persons, without the conclusion of an agreement in any form whatsoever, which in fact leads to cooperation between them.
– Decisive influence: the acquisition of the ability to determine the commercial activity of a person in a manner that affects the relevant market, in particular through ownership rights or the right to use all or part of its assets, or rights or contracts that affect the ability of that person to vote or to take decisions.
– Control: the legal or contractual relationship which, separately or jointly, leads to decisive influence.
– Economic concentration: a case of lasting change in control in the relevant market, arising in the case of a merger or acquisition, as well as in the case of the establishment of a partnership between two or more persons that carries on, on a lasting basis, an economic activity independent of them.
– Restructuring: the operational or financial reorganisation by a parent company, owning more than 50% of the capital of a subsidiary company, or an ownership stake exceeding 20% and not exceeding 50% of the capital of an associate company, of itself or of its subsidiary or associate companies.
– Relevant market: consists of two elements, namely the relevant products and the relevant geographic area.
– Relevant products: all products each of which is a substitute for the other or can replace it in meeting the needs of the recipient of the service or the goods.
– Relevant geographic area: the area in which products, each of which is a substitute for the other, are substituted.
– Leniency applicant: a natural or legal person who takes the initiative to inform the Agency and disclose its participation in an act constituting a violation in accordance with Article (5) of the Law, and to submit the evidence in its possession of the commission of that violation, before it is discovered.
– The Agency’s own initiative: the Agency’s examination, on its own motion, of agreements, concerted practices or economic concentration in the relevant market that restrict freedom of competition, as well as its analysis of the various methods of dealing in the markets to detect cases harmful to competition and monopolistic practices.
– Settlement: an offer or request submitted to/by the violator of any provision of the Law to halt the proceedings taken against it, after the approval of the Board, before the decision of the Disciplinary Board imposing penalties or a final and unappealable judgment, in return for the payment to the Agency of an amount not less than half the maximum financial penalty or fine and not exceeding that maximum.
– Exception application: an application submitted by the concerned parties to the Agency to permit them certain agreements or concerted practices set out in Articles (6, 7, 8) of the Law.
– Concentration application: an application submitted by the concerned parties to the Agency for approval of an economic concentration in accordance with the provisions of Articles (10, 12, 13) of the Law.

Article 2

The provisions of the Law and these Regulations shall apply to acts committed inside or outside the State in violation of their provisions, where such acts result in preventing, restricting or harming freedom of competition in the State.

Article 3

The provisions of the Law and these Regulations shall not apply to the activities of public utilities and State-owned companies providing essential products to the public, which are designated by a decision of the Council of Ministers.

Chapter Two – Competition Protection Agency

Article 4

The Agency:
An authority named the “Competition Protection Agency” shall be established, having legal personality and supervised by the Minister. It shall have exclusive competence to apply the Law, and the Agency shall have original jurisdiction over any conflict or overlap with the competences of other government entities that may arise in applying the provisions of the Law.

Section One – Objectives and Competences of the Agency

Article 5

Objectives of the Agency:
The Agency aims at the following:
1. Freedom of competition, and the prevention of monopolistic practices in all their forms that would affect the freedom to carry on economic activity.
2. Providing protection to those dealing in the relevant market so as to achieve fairness and competitiveness.
3. Freedom of choice for the consumer and a plurality of economic actors.
4. Preserving a competitive structure of the markets.
5. Raising public awareness of the provisions of the Law and of the principles of the free market in general.
6. Working to ensure compliance with the Law, these Regulations and the relevant decisions and instructions.

Article 6

Competences of the Agency
The Agency shall have original jurisdiction over any conflict or overlap with the competences of other government entities that may arise in applying the provisions of the Law, and the Agency shall in particular undertake the following:
1. Receiving complaints and reports, taking inquiry and investigation procedures, gathering information, obtaining evidence and conducting investigations in respect thereof, and submitting them to the Board.
2. Receiving and examining the applications provided for in Articles (9) and (12) of the Law and submitting them to the Board.
3. Receiving and deciding on applications for settlement, conciliation and exemption of the informant from the fine, and collecting the financial penalties provided for in the Law.
4. Conducting the studies and research necessary to analyse the various methods of dealing in the markets to detect cases harmful to competition and monopolistic practices.
5. Promoting competition advocacy, and organising training and educational programmes with the aim of raising awareness of the provisions of the Law and of the principles of the free market in general.
6. Issuing a periodic bulletin containing the decisions, recommendations, procedures and measures taken by the Agency and the Board.
7. Preparing an annual report on the activities of the Agency and its future plan for submission to the Board.
8. Preparing training programmes for the Agency’s employees to qualify them and develop their capabilities.
9. Preparing the draft annual budget and the final account of the Agency.
10. Establishing an integrated database and information base necessary for the work of the Agency.
11. Requiring companies, where necessary for carrying out monitoring tasks, to submit reports and information on their activities and business for analysis, updating the general framework for distinguishing between lawful and unlawful practices, and reviewing concentration transactions or other monitoring tasks legally entrusted to the Agency.
12. Establishing a mechanism for the exchange of information and cooperation in competition cases with other states, economic blocs, common markets and international organisations concerned with competition matters, and coordinating with counterpart authorities in other states on matters of common interest to ensure the effective implementation of the provisions of this Law.

Section Two – The Board

Article 7

Formation of the Board:
The Agency shall have a Board of Directors, formed under the chairmanship of the Chairman of the Agency and comprising a Vice-Chairman, both full-time, and three part-time members, who shall be named by a decree upon the nomination of the Minister, and whose remuneration shall be determined by a decision of the Council of Ministers.
The Board shall have a Secretary chosen by the Chairman from among the employees of the Agency.

Article 8

Term and Conditions of Membership:
The term of membership of the Board shall be four years, renewable once. Members of the Board shall meet the following conditions:
1. Be a Kuwaiti with no less than ten years of experience in any field of economic sciences or commercial law and related practical or academic experience relevant to competition.
2. Be of good conduct and good reputation.
3. Not have been declared bankrupt by a final judgment.
4. Not have been sentenced by a final and unappealable judgment for a felony to a custodial penalty, or for a misdemeanour involving dishonour or breach of trust, unless he has been rehabilitated.

Article 9

Loss of Membership:
A member of the Board shall lose his membership if he is absent from three consecutive meetings or six non-consecutive meetings during the year without an acceptable excuse.

Article 10

Internal Rules of the Board:
The Board shall have internal rules issued by a decision of the Minister upon the proposal of the Board, setting out its system of work and regulating the procedures and rules of its meetings and the work of its committees.

Article 11

The Board shall have competence over the following:
1. Approving the policies and procedures necessary to protect and strengthen competition.
2. Proposing draft laws and regulations relating to competition protection, and expressing an opinion, on its own initiative or at the request of any of the ministries or concerned entities, on legislation, policies or decisions that may prejudice competition.
3. Adopting the annual report on the activities of the Agency and its future plan and submitting it to the Minister for presentation to the Council of Ministers.
4. Approving the organisational structure of the Agency and its issuance by a decision of the Minister.
5. Approving the regulations governing the work of the Agency and their issuance by a decision of the Minister.
6. Issuing the financial and administrative regulations for the affairs of the Agency’s employees within the limits of the approved financial appropriations, without being bound by the provisions of the Civil Service Law and Regulation.
7. Concluding joint cooperation agreements and protocols, and submitting them to the competent authorities for ratification in accordance with the law.
8. Approving the draft budget of the Agency and its final account before submitting them to the competent authorities.
9. Issuing corrective decisions with respect to practices harmful to competition.
10. Determining the fees for the services provided by the Agency.
11. Forming the committees it deems necessary for its work and determining the remuneration of their members, in accordance with the rules and controls it lays down.
12. Any other competences provided for in the Law.

Section Three – The Chairman

Article 12

The Chairman shall represent the Agency before the courts and third parties, and shall have, in addition to what is provided for in the Law, the following competences:
1. Monitoring and following up the implementation of the Board’s decisions.
2. Submitting individual settlements, or conciliation with violators of the provisions of the Law and these Regulations, to the Board.
3. Referring reports, applications, notifications and complaints that are complete with the required data and documents to the Executive Director to take the necessary action in respect thereof.
4. Requesting the filing of a criminal action, or the taking of proceedings therein, in respect of the offences provided for in the Law and these Regulations, upon the approval of the Board.
The Chairman of the Agency may delegate some of his competences to the Executive Director.

Section Four – The Executive Director

Article 13

The Agency shall have a full-time Executive Director with experience and specialisation in the fields relevant to the work of the Agency, who is not a member of the Board. He shall meet the same conditions as those applicable to members of the Board, and shall be appointed by a decree upon the nomination of the Minister for a term of four years, renewable once.
The remuneration and other financial benefits of the Executive Director shall be determined by a decision of the Council of Ministers.
The Executive Director shall attend the meetings of the Board without the right to vote.

Article 14

The Executive Director shall be responsible for implementing the decisions of the Board and, to that end, may take whatever is necessary to conduct the procedures of the services provided by the Agency, and shall undertake the following:
1. Examining complaints and reports, taking inquiry and investigation procedures, gathering information and obtaining evidence in respect thereof, and conducting investigations.
2. Examining practices, agreements, contracts or decisions that restrict freedom of competition.
3. Examining applications submitted pursuant to Articles (9) and (12) of this Law.
4. Conducting the studies and research necessary to analyse the various methods of dealing in the markets to detect cases harmful to competition and monopolistic practices.
5. Collecting the financial penalties provided for in this Law.
6. Addressing persons with requests to submit reports and information on their activities and business for analysis, updating the general framework for distinguishing between lawful and unlawful practices, and reviewing concentration transactions or other monitoring tasks legally entrusted to the Agency.
7. Preparing training programmes for the Agency’s employees to qualify them and develop their capabilities.
8. Preparing periodic bulletins containing the decisions, recommendations, procedures and measures taken by the Agency and other matters relating to its affairs.
9. Establishing a database, exchanging information and cooperating in competition cases.
10. Preparing the draft annual budget and the final account of the Agency.
11. Submitting an annual report on the progress of work at the Agency, including a detailed explanation of all its work and activities during the past financial year.
12. Any other tasks assigned to him by the Board.

Article 15

The Executive Director shall exercise technical supervision over the technical and administrative units reporting to him, in accordance with the administrative structure, and shall exercise his competences in accordance with the Law, the regulations and the decisions issued by the Minister and the Board in this regard.

Section Five – Confidentiality

Article 16

Obligation to Maintain the Confidentiality of Information:
Members of the Board, employees of the Agency, and persons seconded or whose services are engaged to work at the Agency are prohibited from the following:
1. Disclosing information and data, or revealing their sources, relating to cases concerning the application of the provisions of the Law and these Regulations.
2. Using the information and data referred to in the preceding paragraph and their sources for purposes other than those for which they were submitted.

Article 17

Prohibition of Working for Persons Subject to Examination:
Members of the Board, employees of the Agency, and persons seconded or whose services are engaged to work at the Agency are prohibited from undertaking any work, with or without pay, for persons who were subject to examination by them, for a period of two years from the date of their leaving service.

Section Six – Legal Department

Article 18

By way of exception from the provisions of Article (2) of Amiri Decree No. (12) of 1960 and the provisions of Article (10) of Decree-Law No. (38) of 1980, the Agency shall have a Legal Department responsible for handling all cases and appearing before all courts and arbitral tribunals, or for giving legal opinions and conducting investigations, and all litigation papers in actions or appeals, and any judgments issued, shall be delivered to it.

Article 19

Powers of the Legal Department:
The Legal Department of the Agency shall undertake the task of administrative investigation into the violations set out in the Law and these Regulations that are referred to it by the Agency. For the purpose of carrying out the task of investigation and performing his work, the investigator shall have the following powers:
1. The right to request any data, documents or papers from any government entity or any entity concerned with the activity of the Agency.
2. The right to hear the testimony of witnesses.
3. Summoning or requesting the attendance of anyone whose statements he deems it necessary to hear.
4. The right to visit and review any record or data held by any government entity or any entity concerned with the activity of the Agency.

Article 20

Notification of the Referred Person for Investigation:
The Agency shall notify the person referred for investigation to appear before the Legal Department to commence the investigation procedures, at least (7) seven days before the date set for the investigation.
Notification shall be made in accordance with the form prepared for this purpose, by registered letter with acknowledgement of receipt, or by any modern means of notification, through the Agency’s units and its electronic system.
The Agency shall keep the notifications, in the form in which they were sent, in the file of each investigation separately.

Article 21

Particulars of the Notification:
The notification form prepared by the Agency shall include, as a minimum, the following particulars:
1. The date, including: the hour, day, month and year.
2. The full name of the person notified, his profession or occupation, and his domicile or place of work; if his domicile or place of work is not known at the time of notification, his last domicile or place of work in the State of Kuwait shall be taken.
3. The names of the parties concerned with the notification.
4. The subject of the notification, a summary thereof and its legal basis.
5. The date of the hearing and its venue.

Article 22

Guarantees of the Investigation:
Any person under investigation shall have the full right to attend and to defend himself, and he may appoint a lawyer to defend him.

Section Seven – Monitoring and Detection of Violations

Article 23

The Agency may, on its own initiative, conduct research and inquiry, gather evidence and conduct investigations in accordance with the provisions of the Law and these Regulations.
It shall consider referrals from regulatory authorities concerning conduct and practices harmful to competition.
The Board of Directors shall issue a decision setting out the internal procedural controls for the judicial police officer.

Article 24

Judicial Police Powers:
Employees of the Agency designated by a decision of the Minister upon the proposal of the Board shall have the capacity of judicial police officers in establishing acts committed in violation of the provisions of the Law and the decisions issued in implementation thereof.

Article 25

The judicial police officer shall exercise judicial police tasks pursuant to a decision of the Executive Director or of the concerned department assigning him to carry out his work in connection with the examination of a case before the Agency, provided that the decision issued specifies the matters that the judicial police officer is required to undertake.
The judicial police officer shall deliver to the representative of the person subject to the judicial police action, or to whoever acts on his behalf, a copy of the decision assigning him to judicial police duties.

Article 26

Powers of Judicial Police Officers:
Those vested with the capacity of judicial police officers shall, in the course of performing their duties, have the following powers:
1. Taking measures of inquiry and investigation, gathering information and obtaining evidence regarding complaints, reports and the Agency’s own initiatives, and investigating acts committed in violation of the provisions of the Law and these Regulations.
2. Proceeding to the place that is the subject of the report, complaint or the Agency’s own initiative, and carrying out acts of seizure and recording of the violation, in order to detect and ascertain whether or not it has occurred.
3. Requesting information, data, documents, files, tapes, computers or any other means of storing or processing information from any governmental or non-governmental entity in connection with examining the cases brought before the Agency.
4. Inspecting records, books, documents and data; he shall have the right to summon witnesses, record their particulars and capacities, hear their statements, and seek the assistance of experts to give a technical opinion on technical matters.
5. Seizing documents and retaining papers that he considers evidence of the commission of any of the violations by the person subject to the judicial police action.
Officials of the entities referred to in this Article shall provide these employees with the data and documents they request and enable them to perform their duties, and those employees may seek the assistance of the police when necessary.

Article 27

Judicial Police Record:
The judicial police officer shall draw up an official record, in accordance with the form prepared for this purpose, recording all the procedures he has carried out, whether proceeding to a site, examining documents, questioning violators, summoning witnesses or hearing their statements regarding the violations detected, and recording cases of non-compliance or non-cooperation. This record shall state the day, date, hour and place in which it was drawn up, the name and signature of the person who drew it up, the signatures of the witnesses, and a summary of the facts of these violations.
The record shall be submitted to the competent department of the Agency to take the necessary action regarding it.

Chapter Three – Disciplinary Board

Section One – Formation and Competences

Article 28

Formation of the Disciplinary Board:
A Disciplinary Board shall be established at the Agency by a resolution of the Minister, composed of five members from outside the Agency: three judges seconded by the Supreme Judicial Council from among the deputy presidents or counsellors of the Court of Appeal or the Court of Cassation, one of whom shall be the chairman, and two members with expertise in economic and legal affairs. The term of membership of the Disciplinary Board shall be three years, renewable once.
The resolution shall determine the remuneration and allowances of the members of the Disciplinary Board.

Article 29

Competences of the Disciplinary Board:
The Disciplinary Board shall consider the following matters:
1. Deciding on disciplinary accountability referred to it by the Board relating to the violations set out in Article (34) of the provisions of the Law.
2. Deciding on grievances filed by the persons concerned against competition-related decisions issued by the Board.

Section Two – Sessions and Decisions of the Disciplinary Board

Article 30

Sessions of the Disciplinary Board:
A session of the Disciplinary Board shall be valid if attended by a majority of the members of the Disciplinary Board, provided that they include the chairman or his deputy.
The Disciplinary Board may accept the attendance of all or some of its members at the meeting by means of modern communication.

Article 31

The session shall commence once the quorum of attendance is complete. If, when the time of the session arrives, it appears that the number is not complete, the chairman shall postpone its opening by half an hour; if the number is still not complete, the session shall be postponed to a later date. The quorum shall be maintained throughout the session.

Article 32

Decisions of the Disciplinary Board:
Decisions shall be issued by a majority of the votes of its members. In the event of a tie, the side on which the chairman voted shall prevail, provided that the dissenting opinion is recorded in the decision.

Article 33

Impartiality of the Members of the Disciplinary Board:
The chairman and members of the Disciplinary Board shall be prohibited, while performing their duties, from having any direct or indirect interest in the subject of the violation or grievance.
An interest shall be deemed direct if the matter put forward for examination, discussion or voting has a direct effect on the member, whether such effect consists of realising a benefit or gain or avoiding harm or loss.
An interest shall be deemed indirect if the matter put forward for examination, discussion or voting has a direct effect on the member’s husband or wife, or ascendants and descendants up to the fourth degree, whether such effect consists of realising a benefit or gain or avoiding harm or loss.

Article 34

Recusal from Considering the Matter:
Where any case of direct or indirect interest exists in respect of a member, he shall disclose such interest at the beginning of the session, and he shall recuse himself from examining or discussing the matter in which he has the interest, or from voting on it, and he shall leave the meeting before discussion of the matter begins.

Section Three – Referral of the Violator to the Disciplinary Board

Article 35

Referral of the Disciplinary Violation:
The Secretary of the Board shall receive the violations referred to the Disciplinary Board and the grievances filed by the persons concerned against the decisions of the Board, and shall submit them to the chairman of the Disciplinary Board, notify the persons concerned of the dates on which sessions are held, and carry out whatever the chairman of the Disciplinary Board assigns to him.

Article 36

Notification of the Person Referred to the Disciplinary Board:
The Secretary shall notify the person referred to the Disciplinary Board, or the grievant, (7) days before the date of the session set for considering the violation attributed to him, and of its content.
It shall also notify the grievant of the date on which his grievance will be considered (7) days before the date of the session set for considering the grievance.
Notification shall be made in accordance with the form prepared for this purpose by registered letter with acknowledgement of receipt, or by any modern means of notification, through the Agency’s units and its electronic system.
The Agency shall keep the notifications, in the form in which they were sent, in the file of each investigation separately.

Article 37

Particulars of the Notification:
The notification shall include, at a minimum, the following particulars:
1. The date, including the hour, day, month and year.
2. The full name of the person notified, his profession or occupation, his domicile and his place of work; if his domicile or place of work is not known at the time of notification, his last domicile or place of work in the State of Kuwait shall be adopted.
3. The names of the parties concerned by the notification.
4. The subject of the notification, a summary thereof and its legal basis.
5. The date of the session and the place where it is held.

Article 38

Right of Defence During the Investigation:
Any person under investigation shall have the full right to attend and defend himself, and he may appoint a lawyer to defend him.

Section Four – Safeguards for the Person Referred to the Disciplinary Board

Article 39

The Secretary shall enable the person referred to the Disciplinary Board, or his attorney, to examine the papers relating to the violation and provide him with a copy thereof, after payment of the fee determined by a decision of the Board.

Article 40

The Disciplinary Board shall confront the referred person with the violation attributed to him and its grounds, and shall enable him to defend himself in person or through an attorney.
The Disciplinary Board may hear whomever it deems fit to hear as a witness or whose expertise it deems fit to seek, by its own decision or at the request of the referred person or his attorney.

Article 41

The absence of the person referred to the Disciplinary Board, or of the grievant, who has been proven to have been notified of the date, shall not prevent that board from continuing to consider the violation or grievance and issuing a decision thereon.

Section Five – Grievances before the Disciplinary Board

Article 42

Grievance Before the Disciplinary Board:
The Secretary of the Board shall receive grievances from the persons concerned against the decisions issued by the Board pursuant to the provisions of the Law, these Regulations and the resolutions issued in implementation thereof, after payment of the fee determined by a decision of the Board.
A grievance shall be filed before the Disciplinary Board within (30) thirty days from the date on which the persons concerned are notified of the decision, or from the date of its publication in the Official Gazette or on the Agency’s website.

Article 43

Particulars of the Grievance:
The grievance shall be submitted in writing in accordance with the special form prepared by the Agency for this purpose, and shall include the following particulars:
1. The name, profession and address of the grievant, including the civil ID or identity number, telephone, fax and email details; and the name of the legal representative (if any), the power of attorney number and his address, including the civil ID or identity number, telephone, fax and email details.
2. The number of the decision against which the grievance is filed, the date of its issuance, and the date on which the grievant was notified of it or became aware of it.
3. The subject of the grievance and the grounds on which it is based, and the documents supporting it shall be attached to the grievance.

Article 44

Grievances Register:
A manual or electronic register called the “Grievances Register” shall be kept at the Agency, in which the grievances submitted by the persons concerned shall be entered. Grievances shall be entered in this register, under a serial number, on the day of their receipt, and the grievant shall be given a copy of his grievance bearing the entry number and its date.
The decision issued regarding the grievance shall be noted in the register referred to in the preceding paragraph.

Article 45

Examination of the Grievance:
The Secretary of the Board shall, immediately upon its receipt, refer the grievance to the chairman of the Disciplinary Board, who shall set a date for considering it, and the grievant shall be notified of that date to appear before the Board in person, through an attorney or through whoever represents him. The Board may request from the persons concerned such clarifications and documents as it deems fit, and the Disciplinary Board may request the competent department of the Agency to provide a technical opinion regarding the grievance.

Article 46

Decision on the Grievance:
The Disciplinary Board shall decide on the grievance by accepting or rejecting it, and the decision of the Disciplinary Board shall be final.

Section Six – Notification and Enforcement of the Decisions of the Disciplinary Board

Article 47

Notification of the Decisions of the Disciplinary Board:
The Secretary of the Board shall notify the Chairman and the person concerned of the decision of the Disciplinary Board deciding on the grievance within (15) fifteen days from the date of its issuance.
It shall be published on the Agency’s website.

Article 48

Enforceability of the Decisions of the Disciplinary Board:
Decisions of the Disciplinary Board shall be enforceable immediately upon their issuance unless the decision specifies a date for implementation, and the Board shall implement the decision of the Disciplinary Board.

Article 49

Implementation of the Decisions of the Disciplinary Board:
Where the decision of the Disciplinary Board includes the imposition of financial penalties on the violator, the amount of the financial penalties shall be paid immediately or within the period specified in the decision of the Disciplinary Board.

Article 50

The Chairman may take the necessary legal measures to ensure the implementation of the decisions of the Disciplinary Board, and in the event of non-compliance with them, he shall file a report with the Public Prosecution in this regard.

Chapter Four – Practices Harmful to Competition

Article 51

A dominant person shall be prohibited from abusing dominance with the aim of limiting, restricting or preventing competition, which includes, by way of example, the following:
1. Directly or indirectly fixing or imposing the prices of products, or setting a minimum for their resale prices or conditions.
2. Engaging in conduct that leads to obstructing the entry of another person into the market, excluding him from it or exposing him to losses.
3. Contriving an artificial shortage or abundance of products.
4. Discriminating between customers in similar contracts with respect to the prices of products, the conditions of their sale and purchase, or in any other form.
5. Obliging a customer to refrain from dealing with a person competing with him.
6. Withholding, wholly or partially, the products available in the relevant market.
7. Refusing to deal with a particular customer on the usual commercial terms without a legitimate reason.
8. Making the conclusion of a contract or agreement conditional on the acceptance of obligations which, by their nature or according to commercial usage, are unrelated to the original subject of the dealing or agreement.

Article 52

Criteria for Examining Practices Harmful to Competition
When examining the position of any person enjoying a dominant position in the relevant market, the Agency shall take into consideration the existence of any or all of the following criteria:
1. The relevant market for a specific product in a particular geographic area.
2. The market share of the person concerned.
3. The level of actual or potential competition with respect to the number of competitors, the volume of production and the demand for the product.
4. Barriers that obstruct, limit or prevent the entry of competitors into the market.
5. Any other controls set by the Board.

Chapter Five – Exception Application

Article 53

Exception Applications Register:
A manual or electronic register called the “Exception Applications Register” shall be kept at the Agency, in which applications for exception from the application of Articles (6), (7) or (8) of the Law, and the decisions relating thereto, shall be entered. The application shall be entered in this register, under a serial number, on the day of its receipt, and the applicant shall be given a true copy bearing the entry number and its date.
The decision issued regarding the exception application shall be noted in the register referred to in the preceding paragraph.

Article 54

Exception Application Fees
The Board shall issue a resolution determining the fees for the exception application in accordance with the conditions and controls it sets in this regard.

Article 55

Exception Application
The exception application shall be submitted to the Agency in writing or electronically, in accordance with the form prepared for this purpose, provided that the following documents are attached to it:
1. The receipt of payment of the fees.
2. A copy of the applicant’s civil ID card.
3. The memorandum of incorporation or articles of association of the person concerned, the commercial registration certificate and the commercial licence.
4. The name of the manager of the company, the board of directors or the legal representative of the person.
5. A report setting out the legal and economic dimensions of the exception application, provided that the report includes the following:
a. The extent to which the agreements or concerted practices contravene the Law and these Regulations.
b. A description of the products that are the subject of the exception, with a detailed explanation of the agreements or concerted practices intended to be carried out.
c. That the agreements or concerted practices achieve clear benefits for the consumer that outweigh the effects of limiting freedom of competition.
d. That the agreements or concerted practices do not result in fixing the quantities or prices of products, the consideration for the performance of services, or any other conditions in contravention of the market mechanism.
e. That the agreements or concerted practices do not lead to the division of markets on the basis of geographic areas, sales or purchase volumes, customers, or any other basis that adversely affects competition.
f. That the agreements or concerted practices do not lead to discrimination in agreements or contracts, of whatever type, that it concludes with its suppliers or customers where their contractual positions are similar, whether the discrimination is in prices, the type of products or other terms of dealing, in a manner that leads to weakening the competitiveness of some of them against others or to obstructing the entry or exit of some of them into or from the relevant market.
g. That the agreements or concerted practices do not lead to selling below the marginal cost price or the average variable cost in order to exclude competitors or prevent them from entering the relevant market, in accordance with the controls set by the Board.
h. That the agreements or concerted practices do not lead to limiting, wholly or partially, the freedom of flow of products into or out of markets by concealing them, refraining from dealing in them or storing them without acceptable justification.

Article 56

Confidentiality of Exception Application Information:
An exception applicant who wishes the data contained in the application and the documents attached to it to be treated confidentially may mark them with the word (Confidential), together with attaching what justifies this, and he shall submit non-confidential summaries sufficient to understand the content of the confidential data, provided that they are marked with the phrase (Non-Confidential).
The Executive Director, when examining the application in accordance with Article (59) of these Regulations, may assess whether or not the information in the exception application is confidential, in accordance with the controls determined by the Board.

Article 57

Formal Examination of the Exception Application:
The competent department of the Agency shall carry out the formal examination of the exception application and the documents supporting it. Where the department requests the exception applicant to complete additional data or documents, the period of (5) five days referred to in the following Article shall not run except from the date on which the data is completed or the required document is submitted.
Where the application is submitted complete with the required data and documents, the department shall submit the application to the Chairman in preparation for its referral to the Executive Director.

Article 58

Referral of the Exception Application to the Executive Director:
The Chairman shall refer the exception application to the Executive Director within (5) five days from the date of its receipt by the Agency complete with the requirements of Article (54) of these Regulations, in order to examine it and prepare a report thereon within a period not exceeding (90) ninety days from the date of its referral to him.
The Board may, at the request of the Executive Director, extend the period for examining the application for a further period not exceeding (45) forty-five days.

Article 59

When studying the exception application, the Executive Director may take the following:
1. Request from the exception applicant any additional documents, information or data that he deems necessary for studying the application.
2. Notify the persons that he considers may be affected by the exception, so that they may submit documents, information or data regarding the exception application within a period of (15) fifteen days from the date of publication or notification.
3. Publish a summary of the exception application in the Official Gazette and in two widely circulated daily newspapers at the expense of the exception applicant.
4. Hold hearings with the applicant or third parties.
5. Seek the assistance of whomever he deems appropriate from among experts, specialists, or local or international companies specialised in examining the application, or request to obtain any document or statement from the persons concerned.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 60

Study of the Exception Application:
The Executive Director shall study the exception application in accordance with the following:
1. Study of the products, as follows:
a. The similarity of the product under examination to another product in characteristics and use.
b. The extent of the consumer’s ability to switch from the product under examination to another product as a result of a relative change in price or as a result of any other competitive factors.
2. Determination of the potential competition opportunities in a specific geographic area according to any of the following criteria:
a. The extent of the consumer’s ability to move from the geographic area under examination to another geographic area as a result of a relative change in prices or in other competitive factors.
b. The extent of the sellers’ ability to make their commercial decisions on the basis of the movement of buyers between different geographic areas as a result of relative changes in prices or in other competitive factors.
c. The relative ease with which other persons are able to enter the relevant market.
d. The costs of transport between geographic areas, including the cost of insurance and the time required to supply the geographic area with the relevant products from other markets, from other geographic areas or from outside the State.
e. Customs and administrative restrictions at the domestic and external levels.
3. The market share, revenues and assets of the exception applicant.
4. The level of actual or potential competition with respect to competitors in the relevant market, specifying the date on which the competition began.
5. The expected change in price or quantity of the products in the event that such agreements or concerted practices do not take place.
6. The volume of production of, and demand for, the products.
7. The level of impact on the aggregate supply of, or demand for, the products.
8. The extent of the diversity of products in the relevant market.
9. The impact of the agreements or concerted practices on entry into, expansion in, or exit from the relevant market.
10. The level of ease of obtaining financial facilities.
11. The period of time during which the agreements or concerted practices are expected to take place.
12. The impact on consumers.

Article 61

Report of the Executive Director:
The Executive Director shall submit a report on the exception application to the Chairman, including the following:
1. The data contained in the application and the documents attached thereto.
2. A statement of all the facts and procedures carried out regarding the application.
3. An assessment of the application from the economic and legal perspectives in accordance with the conditions of Article (9) of the Law.
4. A recommendation on the decision proposed to be taken

Article 62

Decision of the Board on the Exception Application:
The Chairman shall present to the Board the application that fulfils the conditions set out in this Chapter, together with the documents attached thereto, and the Board shall decide on the exception application within (30) days from the date on which the Chairman presents it, by any of the following:
1. Approval of the exception application for a period determined by the Board.
2. Approval subject to conditions determined by the Board on a case-by-case basis.
3. Rejection of the exception application, provided that the rejection decision shall state the reasons therefor.
The Executive Director shall notify the exception applicant of the Board’s decision within (15) fifteen days from the date of its issuance.

Article 63

Temporary Approval of the Exception Application:
The Board may grant temporary approval of the exception application before the study of the application is completed in cases of necessity or exceptional circumstances.

Article 64

Monitoring the Implementation of the Exception:
The Agency shall monitor the compliance of the person who has obtained approval of the exception, and if it is established that such person has violated the conditions and controls under which the approval was issued, or has violated the Law or these Regulations, the Board may take any of the following decisions:
1. Oblige the violator to cease implementing the agreements or concerted practices for which the exception was issued.
2. Oblige the violator to rectify its status immediately or within a period of time determined by the Board.
3. Revoke the approval of the exception, if the person concerned fails to fulfil the conditions and requirements on the basis of which the exception was granted.

Article 65

The Board shall issue a decision revoking the approval of the exception if it becomes apparent that the information on the basis of which the approval was issued was misleading or incorrect, in accordance with what the Chairman presents.

Article 66

The Board may, upon the presentation of the Chairman, revoke the decision approving the exception in the following cases:
1. If the circumstances under which the approval was issued no longer exist.
2. If the purpose of the exception has been achieved.
3. If there is a negative effect on competition – arising from the practices of the person benefiting from the exemption – that outweighs the positive effects anticipated therefrom.

Article 67

The Executive Director shall notify the person concerned of the decisions of the Board issued in accordance with the provisions of the Law and these Regulations within (7) seven days from the date of their issuance.

Article 68

Amendment of the Exception:
The person concerned shall notify the Agency of any change or amendment occurring to the agreements or concerted practices for which an exception was previously obtained within (30) thirty days from the date of occurrence of the event justifying the change or amendment.
The request for change or amendment shall be examined in accordance with the same procedures and provisions set out in this Chapter.

Chapter Six – Economic Concentration

Article 69

For the purposes of applying the provisions of the Law and these Regulations, the following cases shall be deemed an economic concentration:
1. The merger of two or more persons by way of absorption or amalgamation, or the merger of parts of persons, leading to control or increased control.
2. The acquisition by one or more persons of direct or indirect control over the whole or parts of one or more other persons, whether by the acquisition of assets, ownership rights or usufruct rights, the purchase of shares or stakes, the assumption of obligations, or by any other means.
3. The existence of a partnership between two or more persons leading to a permanent and independent economic or commercial activity, whatever the legal form or the activity being carried on.
4. Any other case specified by a decision of the Board.

Article 70

For the purposes of applying the provisions of the Law and these Regulations, the following cases shall not be deemed an economic concentration:
1. Trading and dealings in securities, according to the following conditions:
a. That they are carried out by a bank, an insurance company or a financial institution.
b. That its activities include trading and dealing in securities for its own account or for the account of third parties by temporarily holding securities purchased for the purpose of reselling them.
c. That it does not exercise voting rights -with the aim of determining competitive behaviour, unless the exercise of voting rights is for the purpose of preparing for the disposal of the person or its assets, in whole or in part, or the disposal of the said securities.
d. That the securities are disposed of within one year from the date of their purchase, unless the Agency extends this period upon request where it is proven that disposal was not possible within the prescribed period.
2. Control resulting from insolvency or cessation of payment proceedings, debt rescheduling, settlements with creditors or similar procedures.
3. The undertaking by persons forming a single economic group of restructuring procedures within the same group.

Article 71

The conditions and controls for the exercise of voting rights that are subject to the oversight of the Agency shall be specified by a decision issued by the Board in this regard.

Article 72

Subject to the provisions of Article (12) of the Law, all entities entrusted with approving economic concentration transactions shall notify the Agency of the applications submitted to them immediately upon their receipt, and shall not approve such applications until a decision approving them has been issued by the Board.
The persons concerned shall also not undertake any acts or procedures to complete concentration transactions before the issuance of the Board’s decision referred to in the preceding paragraph.

Article 73

Criteria for Studying the Economic Concentration Application:
When studying the economic concentration application, the Agency shall take into consideration the availability of one or all of the following criteria:
1. Maintaining and encouraging effective competition among competitors in the market.
2. Promoting the interests of consumers with respect to the quality and price of such products.
3. Encouraging, through competition, the reduction of costs, the development of new products and the facilitation of the entry of new competitors into the market.

Article 74

Consultation Prior to Submitting the Concentration Application:
Anyone who wishes to enter into a concentration transaction may submit a consultation request to the Agency in order to hold a consultation meeting with the Agency’s employees before submitting the economic concentration application, and the following information and data shall be attached to the consultation request:
1. A receipt of payment of the consultation request fee, which shall be determined by a decision of the Board.
2. The names and contact information of the participants in the concentration transaction concerned.
3. The type of concentration (acquisition, merger, joint venture).
4. The relevant markets that will be affected by the concentration.
5. The financial statements of the parties to the concentration for the last two financial years, provided that they are accompanied by a statement of the total annual sales and the volume of total assets of the applicants and the estimated market share of the parties to the concentration.
The parties may request advice as to whether the proposed economic concentration application is required to be submitted, or as to how to comply with all the requirements for submitting the economic concentration application, during the pre-application consultation process.
The parties may also, during the pre-application consultation stage, request the Agency to grant them an exemption from submitting certain information required in the economic concentration application form if it is not necessary, attaching the justification therefor.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Chapter Seven – Economic Concentration Application

Article 75

Register of Economic Concentration Applications:
A manual or electronic register called the “Register of Economic Concentration Applications” shall be maintained at the Agency, in which the economic concentration application and the decisions relating thereto shall be recorded. The application shall be recorded in this register – under a serial number – on the day of its receipt, and the applicant shall be given a true copy bearing the registration number and its date.
The decision issued on the economic concentration application shall be annotated in the register referred to in the preceding paragraph.

Article 76

Obligation to Submit the Economic Concentration Application:
The persons participating in economic concentration transactions shall submit the economic concentration application if the value of their registered assets or their annual sales in the State – according to the audited financial statements for the last financial year before the concentration – exceeds the aggregate and individual thresholds specified by a decision of the Board pursuant to Article (10) of the Law.

Article 77

Fees for the Economic Concentration Application:
The economic concentration applicant shall pay a fee estimated at one per thousand (0.1%) of the paid-up capital, or of the value of the combined assets of the persons concerned in the State, whichever is less, subject to a maximum of one hundred thousand Kuwaiti Dinars.

Article 78

The Economic Concentration Application:
The persons participating in economic concentration transactions shall submit the economic concentration application manually or electronically to the Agency (60) sixty days -at least- before the date of preparation of the draft contract or agreement concerning the concentration transaction, in accordance with the form prepared for this purpose, and the following documents shall be attached thereto:
1. A report of an asset valuer -who shall be one of the audit firms approved by the Capital Markets Authority- on the fees payable, estimated at one per thousand (0.1%) of the paid-up capital, or of the value of the combined assets of the persons concerned in the State, whichever is less, subject to a maximum of one hundred thousand Kuwaiti Dinars.
2. A receipt of payment of the fees.
3. The memorandum of incorporation or articles of association -if any- of the persons participating in the concentration transaction, the commercial registration certificate and the commercial licence.
4. The name of the company’s manager, the names of the members of the board of directors, or the legal representative of the person.
5. The financial statements for the last two financial years of all the persons concerned by the economic concentration transaction and all their branches, subsidiaries and associates -if any.
6. The draft economic concentration contract or agreement, any public or private offering documents, and the number of shares or assets to be acquired.
7. A report containing the economic dimensions of the concentration application, provided that the report includes the following:
a. Information on the parties to the concentration:
▪ The names of the parties to the concentration transaction, their memoranda of incorporation and articles of association -if any-, commercial licences and commercial registration.
▪ The activity of the parties to the concentration transaction.
▪ The addresses of the parties to the concentration transaction, telephone number and e-mail.
▪ The name of the contact officer of the parties to the concentration, his job title, a copy of his civil ID card, his telephone number and his e-mail.
▪ The capital.
▪ The main customers and their percentage in the market.
▪ The volume and value of sales and their percentage in the market.
▪ A statement of the competitors and their share in the market.
b. Data of the concentration transaction:
▪ The type of concentration -merger, acquisition, joint venture.
▪ A description of whether the concentration relates to all or part of the parties subject to the concentration.
▪ A brief explanation of the economic and financial structure of the concentration.
▪ The proposed or expected date of any significant procedures aimed at completing the concentration transaction.
▪ The proposed structure of ownership and decisive influence after completion of the concentration transaction.
▪ The relevant products of the concentration and the volume and percentage of their sales.
▪ The relevant market and its size.
▪ The products dealt in by the person requesting the concentration.
▪ The positive effects of the concentration.
▪ The negative effects of the concentration and the measures proposed to mitigate them.
▪ The markets affected by the concentration transaction.
▪ The factors affecting market entry.
▪ The nature of the distribution channels.
▪ The factors affecting price stabilisation during the past five years.
▪ The volume of available production capacity and the rate of its utilisation.
▪ The volume and structure of demand for the products.
▪ Substitute products.
▪ The value of the concentration in Kuwaiti Dinars, which shall include the purchase price and the value of all related assets.
c. Ownership and decisive influence:
▪ All persons having decisive influence over the participants in the concentration transaction, whether directly or indirectly, shall be identified, specifying the nature and means of such influence.
▪ All persons operating in any of the affected markets over which the participants in the concentration transaction or any other person exercise decisive influence, directly or indirectly, shall be identified, specifying the nature and means of such influence.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 79

Confidentiality of the Economic Concentration Application Information:
An economic concentration applicant who wishes the data contained in the application and the documents attached thereto to be treated confidentially may mark them with the word (Confidential), attaching the justification therefor, and shall submit non-confidential summaries sufficient to understand the content of the confidential data, which shall be marked with the phrase (Non-Confidential).
When studying the application in accordance with Article (82) of these Regulations, the Executive Director may assess whether or not the information of the economic concentration application is confidential, in accordance with the controls determined by the Board.

Article 80

Formal Examination of the Economic Concentration Application:
The competent department of the Agency shall undertake the formal examination of the economic concentration application and its supporting documents, and if the department requests the economic concentration applicants to complete additional data or documents – the period of (5) five days referred to in the following Article shall not run except from the date of completion of the data or submission of the requested document.
If the application is submitted complete with the required data and documents, the department shall present it to the Chairman in preparation for its referral to the Executive Director.

Article 81

Referral of the Economic Concentration Application to the Executive Director:
The Chairman shall refer the economic concentration application to the Executive Director within (5) five days from the date of its receipt by the Agency, once the application fulfils the requirements of Article (78) of these Regulations, in order to ascertain the harms and benefits of the concentration subject of the application, study the likelihood of its negative effect on free competition in the relevant market, and prepare a report thereon within a period not exceeding (90) ninety days from the date of its referral to him.
The Board may, at the request of the Executive Director, extend the period for studying the application for a further period not exceeding (90) ninety days.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 82

When studying the economic concentration application, the Executive Director may take the following:
1. Verify that the fees paid correspond to the rate of one per thousand (0.1%) of the paid-up capital, or of the value of the combined assets of the persons concerned in the State, whichever is less, subject to a maximum of one hundred thousand Kuwaiti Dinars.
2. Request from the economic concentration applicants any additional documents, information or data that he deems necessary for studying the application.
3. Notify the persons that he considers may be affected by the approval of the economic concentration application, so that they may submit documents, information or data regarding the economic concentration application within a period of (15) fifteen days from the date of publication or notification.
4. Publish a summary of the economic concentration application on the Agency’s website, in the Official Gazette and in two local daily newspapers published in the Arabic language at the expense of the economic concentration applicant.
5. Hold hearings with the applicant or third parties.
6. Seek the assistance of whomever he deems appropriate from among experts, specialists, or local or international companies specialised in examining the application, or request to obtain any document or statement from the persons concerned.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 83

Objection to the Economic Concentration Application:
Any interested party may submit to the Agency a reasoned objection to the economic concentration application within a period not exceeding (15) fifteen days from the date of notification or publication, after payment of the fees determined by a decision of the Board.
The Executive Director shall notify the economic concentration applicants of the objection, so that they may submit the data and documents they have in response to the objection within (15) fifteen days from the date of notification.
The study of the economic concentration application objected to shall be suspended until the Board issues a decision thereon within (30) days from the date of submission of the objection, and this period shall not be included in the period for studying the economic concentration application referred to in Article (80) of these Regulations.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 84

Study of the Economic Concentration Application:
The Executive Director shall study the economic concentration application, taking into consideration the following elements:
1. Study of the products, as follows:
a. The similarity of the product under examination to another product in characteristics and use.
b. The extent of the consumer’s ability to switch from the product under examination to another product as a result of a relative change in price or as a result of any other competitive factors.
2. Determination of the potential competition opportunities in a specific geographic area according to any of the following criteria:
a. The extent of the consumer’s ability to move from the geographic area under examination to another geographic area as a result of a relative change in prices or in other competitive factors.
b. The extent of the sellers’ ability to make their commercial decisions on the basis of the movement of buyers between different geographic areas as a result of relative changes in prices or in other competitive factors.
c. The relative ease with which other persons are able to enter the relevant market.
d. The costs of transport between geographic areas, including the cost of insurance and the time required to supply the geographic area with the relevant products from other markets, from other geographic areas or from outside the State.
e. Customs and administrative restrictions at the domestic and external levels.
3. The market share of the persons concerned.
4. The revenues and assets of the persons concerned.
5. The level of actual or potential competition in the relevant market.
6. The extent of ease of entry of new establishments into the relevant market.
7. The extent of the potential effect on the prices of the relevant goods or services.
8. The extent of the existence of legal barriers affecting the entry of new competitors.
9. The extent of the likelihood of a dominant position arising in the relevant market.
10. The extent of the potential effect on innovation, creativity and technical efficiency.
11. The extent of the effect on encouraging investment or export.
12. The extent of the effect on the interests of consumers.

Article 85

Report of the Executive Director:
The Executive Director shall submit a report on the economic concentration application to the Chairman, including the following:
1. The data contained in the application and the documents attached thereto.
2. A statement of all the facts and procedures carried out regarding the application.
3. An assessment of the application from the economic and legal perspectives in accordance with the requirements of the preceding Article.
4. A recommendation on the decision proposed to be taken.

Article 86

Decision of the Board on the Economic Concentration Application:
The Chairman shall present to the Board the application that fulfils the conditions set out in this Chapter, together with the documents attached thereto, within (7) seven days from the date of its receipt from the Executive Director, and the Board shall decide on the economic concentration application within (30) days from the date on which the Chairman presents it, by any of the following:
1. Approval of the economic concentration application.
2. Conditional approval of the economic concentration.
3. Rejection of the economic concentration application, provided that the rejection decision shall state the reasons therefor.
The Executive Director shall notify the concerned parties of the Board’s decision within (15) fifteen days from the date of its issuance.
The Board’s decision approving the economic concentration shall be published in the Official Gazette.
* Replaced by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Chapter Eight – Settlement and Conciliation

Section One – Settlement

Article 87

Settlements Register:
A manual or electronic register called the “Settlements Register” shall be kept at the Agency, in which settlement offers or requests and the decisions relating thereto shall be recorded. Offers or requests shall be recorded in this register – by serial number – on the day of their issuance or receipt, and the registration number and date shall be entered therein.
The decision issued regarding the settlement shall be annotated in the register referred to in the preceding paragraph.

Article 88

Settlement:
The Agency may, at any stage of the proceedings taken against the violator and until a decision of the Disciplinary Board or a final and unappealable judgment is issued, offer or accept a settlement, in accordance with the form prepared for this purpose, with any person who has committed any of the violations set out in the Law, in return for payment of an amount not less than the minimum of the prescribed fine and not more than its maximum.
The Board shall determine the time limit within which the violator shall fulfil the settlement conditions, and upon completion of the settlement, the proceedings taken against him shall lapse.

Article 89

Settlement Offer:
When offering a settlement, the Board shall take into consideration the achievement of one or all of the following matters:
1. Preserving and encouraging effective competition among competitors in the market.
2. Promoting the interests of consumers with respect to the quality and price of such products.
3. Encouraging, through competition, the reduction of costs, the development of new products and facilitating the entry of new competitors into the market.
4. The circumstances in which the violation was committed.
5. The person’s submission of proof that he exercised due diligence before the violation occurred.

Article 90

Settlement Request:
The settlement request shall be submitted by the violator or his legal representative to the Agency, and the Agency shall examine the request and assess its value, without prejudice to the rights of the person harmed by the violation.

Article 91

Settlement Conditions:
The following are required for offering or accepting a settlement:
1. That no decision has been issued by the Disciplinary Board regarding the violation, unless a final and unappealable judgment has been issued regarding the violation where the violator has filed a grievance against the decision of the Disciplinary Board within the prescribed time limits.
2. That the value of the settlement is not less than half of the maximum financial penalty or fine and does not exceed such maximum.

Article 92

Settlement Decision:
If the Board approves the settlement request, its terms and conditions shall be prepared in writing, provided that they include a specified time limit within which the agreed conditions are to be fulfilled. The competent entity conducting the proceedings shall be notified of the completion of the settlement procedure.
The settlement decision shall be published on the Agency’s website.

Section Two – Conciliation

Article 93

Conciliation Register:
A manual or electronic register called the “Conciliation Register” shall be kept at the Agency, in which conciliation requests and the decisions relating thereto shall be recorded. Requests shall be recorded in this register – by serial number – on the day of their receipt, the registration number and date shall be entered therein, and the applicant shall be given a true copy bearing the registration number and date.
The decision issued regarding the conciliation shall be annotated in the register referred to in the preceding paragraph.

Article 94

Conciliation Request:
The Board shall accept the conciliation request where the leniency applicant notifies the Agency by disclosing the commission of a violation, by submitting information on his participation in any of the prohibited agreements, practices or contracts set out in Article (5) of the Law, and submitting the evidence in his possession of the commission of such violation.
In all cases, conciliation may not be accepted after the Agency has discovered the violation.

Article 95

Conditions for Accepting Conciliation:
The information referred to in the preceding Article shall meet the following:
1. That the informant is its original source.
2. That the Agency is not aware of it from any other source or partner.
3. That it is not derived from allegations in a judicial or administrative investigation, or in a report of the regulatory authorities or the media.

Article 96

Reliance on Information:
The Agency may rely on the information or evidence submitted by the person pursuant to Article (94) of these Regulations to uncover his partners in the violation, and may consider such evidence as producing its legal effects against the persons participating in the violation, other than the leniency applicant.

Article 97

Confidentiality Obligation:
The leniency applicant shall maintain the confidentiality of the request and of all decisions, evidence, data and information related thereto.

Article 98

The leniency applicant shall cooperate with the Agency during the examination of the request, and shall also comply with such conditions, obligations, undertakings or acknowledgements as the Board may decide, including regularising his position and removing the violation within the period specified by the Board.

Article 99

Board Decision on Conciliation:
If the Board approves the conciliation request, its terms and conditions shall be prepared in writing, provided that they include exempting the violator from the financial penalties prescribed in Article (34) of the Law.

Chapter Nine – Complaints and Reports

Article 100

Any person shall have the right to submit to the Agency a complaint or report regarding agreements, concerted practices or economic concentration, or regarding acts committed in violation of the provisions of the Law and these Regulations, in order for the necessary action to be taken in respect thereof.

Section One – Complaints

Article 101

Complaints Register:
A manual or electronic register called the “Complaints Register” shall be kept at the Agency, in which the complaints submitted by the concerned parties shall be recorded. Complaints shall be recorded in this register – by serial number – on the day of their receipt, and the complainant shall be given a true copy bearing the registration number and date.
The decision issued regarding the complaint shall be annotated in the register referred to in the preceding paragraph.

Article 102

Complaint Details:
The complaint shall be submitted in writing to the Agency in accordance with the form prepared for this purpose, and the following details shall be attached to the complaint:
1. A receipt for payment of the fee prescribed for the complaint, which shall be determined by a decision of the Board.
2. The complainant’s name, his capacity in submitting the complaint, his profession and address, a copy of his civil ID card, and his telephone, fax and e-mail.
3. The substance of the complaint and the documents supporting it.
4. The complainant’s signature and the date of submission of the complaint.
5. The name and address of the person complained against, including telephone, fax and e-mail details.
6. A statement as to whether the complaint has been submitted to another entity, specifying that entity, and whether any legal proceedings have been taken in respect thereof.

Article 103

Examination of the Complaint:
The concerned department shall examine the complaint submitted by the complainant to verify that the following are met:
1. The details required in the complaint form.
2. That the complaint does not coincide, in terms of subject matter, parties and applicable law, with a complaint pending before the judiciary or the Public Prosecution, or one already decided by either of these two bodies.
3. That the complainant relies in his complaint on the articles of the Law or these Regulations, or the decisions and instructions issued by the Agency.
4. That the same subject matter of the complaint has not previously been submitted to the Agency, unless it contains new facts.

Article 104

Referral of the Complaint:
The concerned department shall refer the complaint to the Chairman within (7) seven days from the date of its registration.
The Chairman shall refer the complaint, together with the documents and data attached thereto, to the Executive Director within (7) seven days, in order to take the necessary action in respect thereof.

Article 105

Investigation of the Complaint:
The Executive Director shall examine the complaint, carry out inquiry and research procedures, collect information, obtain evidence and conduct the investigation in respect thereof.

Article 105 bis

Joinder of Complaints:
If a new complaint is submitted to the Agency arising from the same legal cause as a previous complaint pending before the Agency, or related thereto, the Board of Directors may join the subsequent complaint to the first complaint, upon the recommendation of the Executive Director.
* Added by Resolution No. 25 of 2022 (Kuwait Al-Youm, Issue No. 1596, 14 August 2022).

Article 106

Executive Director’s Report:
Upon completion of the investigation procedures, the Executive Director shall submit to the Chairman a report including the substance of the complaint, the facts and the procedures taken in respect thereof, and the recommendation on the proposed decision, within (90) ninety days from the date of its referral to him.
The Chairman may extend the investigation period for a similar period or periods at the request of the Executive Director

Article 107

Board Decision on the Complaint:
The Chairman shall present the complaint to the Board, together with the Executive Director’s report, and the Board shall decide on the complaint within (30) days from the date on which the Chairman presents it, by any of the following:
1. Closing the complaint.
2. Taking corrective measures in respect thereof.
3. Referring it to the Disciplinary Board or the Public Prosecution, depending on the nature of the violation.
4. Returning the complaint to the concerned department for further investigation or such other procedures as the Board deems fit.

Section Two – Reports

Article 108

Reports Register:
A manual or electronic register called the “Reports Register” shall be kept at the Agency, in which the complete reports submitted by the concerned parties shall be recorded. Reports shall be recorded in this register – by serial number – on the day of their receipt, and the informant shall be given a true copy bearing the registration number and date.
The decision issued regarding the report shall be annotated in the register referred to in the preceding paragraph.

Article 109

Serious Indications of the Report:
It shall be a condition for reporting the violations set out in the Law that the informant has serious indications justifying his belief in the truth of the reported fact.
The report shall be deemed not serious – in particular – if it lacks documents or any indications justifying such belief for the informant.

Article 110

Report Requirements:
The report shall meet the following requirements:
1. That it be in writing and bear the signature, name and capacity of the person submitting it, the date of its submission, and his address, means of contact and telephone numbers. The informant may appear in person at the Agency and submit the report orally, provided that minutes are drawn up thereof.
2. That it include a sufficient explanation of the facts of the reported violations, the time and place of their occurrence, the source, manner and occasion through which he came to know of the reported fact, the names and capacities of the persons reported against, and any other information or indications supporting the fact.
3. That any documents or papers in his possession supporting the reported fact be attached to it – if any.
4. That it state his relationship with the persons reported against, and whether he has previously submitted a report or complaint against them to any entity and the outcome thereof.

Article 111

Report Failing to Meet the Formal Requirements:
If the report does not meet the form set out in the preceding Article, it shall be closed in accordance with the prescribed mechanism or referred to the Executive Director, as each case requires, taking into account whether the report contains sufficient information and indications of importance and seriousness, and the extent to which the report meets the required formal requirements and conditions, based on the preliminary examination conducted by the concerned department after receiving the report.

Article 112

Referral of the Report:
The concerned department shall refer the report to the Chairman within (7) seven days from the date of its registration.
The Chairman shall refer the report, together with the documents and data attached thereto, to the Executive Director within (7) seven days, in order to take the necessary action in respect thereof.

Article 113

Investigation of the Report:
The Executive Director shall examine the report, carry out inquiry and research procedures, collect information, obtain evidence and conduct the investigation in respect thereof.

Article 114

Protection of the Informant:
The Agency may provide protection to the informant and witnesses by concealing their identities and replacing them with special codes. The Agency shall maintain confidential records containing the original data of every person whose identity it has been decided to conceal or protect, which shall be kept in a manner ensuring their confidentiality and shall not be disclosed except pursuant to a provision of the relevant laws or by a decision of the competent court.
The Agency may adopt any other necessary measures or procedures it deems fit to provide the necessary protection to the informant or witnesses.

Article 115

Where necessary, informants and witnesses may give their statements using modern means of communication and other means and applications that ensure their confidentiality and safety.
Witnesses and persons harmed by violations shall be treated as informants and shall enjoy the same protection if they give testimony relating to facts thereof.

Article 116

Executive Director’s Report:
Upon completion of the investigation procedures, the Executive Director shall submit to the Chairman a report including the substance of the informant’s report, the facts and the procedures taken in respect thereof, and the recommendation on the proposed decision, within (90) ninety days from the date of submission of the informant’s report.
The Chairman may extend the period for considering the report for a similar period or periods at the request of the Executive Director.

Article 117

Board Decision on the Report:
The Chairman shall present the report to the Board, together with the report of the Executive Director thereon, and the Board shall decide on the report within (30) days from the date on which the Chairman presents it, by any of the following:
1. Closing the report.
2. Taking corrective measures in respect thereof.
3. Referring it to the Disciplinary Board or the Public Prosecution.

Chapter Ten – Corrective Measures

Article 118

Upon establishing a violation of any of the provisions contained in Articles (5, 6, 7 and 8) of this Law, the Agency shall instruct the violator to regularise his position and remove the violation within a period of time specified by the Agency.
The Board may issue a decision to stop the prohibited practice and to specify the corrective measures necessary to preserve freedom of competition in the market.
The Executive Director shall notify the concerned parties and the relevant entities of the Board’s decision within (15) fifteen days from the date of its issuance.

Article 119

When specifying the period of time for removing the violation referred to in the preceding Article, the following shall be taken into consideration:
a. The nature, duration and gravity of the violation.
b. The nature and size of the losses and damage incurred by any person as a result of such violation.
c. The conditions of the market in which the violation occurred.
d. The level of profit made as a result of the violation.
e. The degree of cooperation of the person concerned with the Agency.
f. Whether or not the person has previously violated this Law.

Chapter Eleven – General Provisions

Article 120

Any provision contrary to these Regulations shall be repealed.

Article 121

These Regulations shall come into force from the date of their publication in the Official Gazette, and the officials, each within his competence, shall implement them.

Issued on 30 June 2021 and published in the Official Gazette Kuwait Al-Youm on 4 July 2021.