PCC Promulgates Revised Rules on Consent Order

In accordance with Article III, Rule III of the 2017 Rules of Procedure of the Philippine Competition Commission (“PCC”), the PCC promulgated revisions to the Rules on Consent Order. Some of the pertinent amended provisions are as follows:

Nature of Consent Order

A Consent Order is a remedy that allows an Entity, without in any manner admitting a violation of the Act, its implementing rules, or other competition laws, to avoid administrative prosecution by providing commitments acceptable to the PCC to address the competition issues and harm identified by the Enforcement Office: Provided, that an Entity may file an Application for Consent Order (“Application”) only once for the conduct or agreement subject of the Investigation. The Application is non-adversarial, ex parte and summary in nature, and the PCC has full discretion to deny or grant the Application.

Filing of an Application and Fees

At any time prior to the termination of an Investigation, any Entity being investigated may, on its own, or jointly with another Entity (the “Applicant”), file a properly verified Application with the PCC. If the Applicant is a juridical entity, the Application must be verified by its duly authorized representative and must be accompanied with the relevant certification on the authority of the representative(s).

At the time of the filing of the Application, the Applicant shall pay a nonrefundable Application fee of one percent of one percent (1% of 1%) of the value of the Applicant’s assets or annual revenues based on its latest audited financial statements, whichever is higher, but shall in no case be less than P250,000.00 or more than P5,000,000.00. 

Contents and Sufficiency of the Application

The Application must contain the following details:

1. Description of the conduct or agreement subject of the Investigation (“Description”);
2. The proposed commitments, which shall be complete, unambiguous, and self-executing. The proposals shall be considered self-executing if they are not dependent on the will of a third party. The proposed commitments must include a complete and adequate description of steps or measures which shall be undertaken by the Applicant to ensure the prevention or cessation of the conduct or agreement subject of the Investigation (“Proposed Commitments”);
3. A clear explanation of how each proposed commitment will resolve particular competition concerns (“Explanation”);
4. A statement of the amount that the Applicant is willing to pay and explanation justifying the same. The amount shall be within the range of fines provided for under the Act, its implementing rules, or other competition laws. (“Amount to be Paid”);
5. The proposed mandatory compliance reports as well as the identity of the Entity that will submit such reports. The proposal shall contain: 

1. the proposed mechanism for monitoring the Applicant’s compliance with its commitments; 
2. details of the contents of the mandatory compliance reports, the frequency of the submission of the reports and the corresponding deadlines for submission; and 
3. the procedure for submission of the reports, including, if necessary, a compliance monitor, at the cost of the Applicant, to assist the Enforcement Office when the monitoring of compliance requires extensive analysis or involves significant amount of data (“Compliance Reports”); 

6. The Applicant shall identify any private party or parties who may have suffered injury and the amount of damages that it will pay, or if such parties are unidentified, the mechanism to identify them and effect payment of damages (“Private Parties”); and 
7. Other terms and conditions that may be provided by the PCC.

Within five (5) days from receipt of the Application and payment of the required fee, the PCC shall determine if the Application complies with the required formalities. A defective Application shall be considered not filed, without prejudice to the Applicant filing a complaint Application within fifteen (15) days from receipt of the notice of insufficiency in form.

Assessment of the Application

Within forty-five (45) days from notice of sufficiency of the Application, the PCC shall complete an assessment of the Application whether it can render a decision or if further proceedings are needed. This period may be extended for another forty-five (45).

Decision after Assessment and Further Proceedings

The PCC shall decide whether to approve or deny the Application within fifteen (15) days after completing the assessment of the Application. The PCC may conduct further proceedings which shall be completed within sixty (60) days from concluding the Assessment of the Application and issue orders as may be necessary to aid in the just and expeditious resolution of the Application. When an external expert is engaged, conduct of further proceedings may be extended up to a maximum additional period of one hundred twenty (120) days, at the discretion of the PCC.

Decision of the Commission

The PCC shall resolve an Application within thirty (30) days from the termination of further proceedings but may be extended for an additional period of thirty (30) days if warranted by the complexity of the subject matter involved. The denial of the Application shall be final. However, such denial shall not be construed as a prejudgment on the Investigation subject of the Application and shall be without prejudice to the availment of other non-adversarial remedies under these Rules.

Inadmissibility of Evidence in Criminal Proceedings

The request for a Binding Ruling, the Show Cause Order, or the application for Consent Order; the facts, data, and information therein contained or subsequently supplied by the Entity or Entities concerned; admissions, oral or written, made by them against their interest; all other documents filed by them, including their evidence presented in the proceedings before the PCC; and the judgment or order rendered thereon; shall not be admissible as evidence in any criminal proceedings arising from the same act subject of the Binding Ruling, Show Cause Order, or Consent Order against such Entity or Entities, their officers, employees, and agents