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DRAFT COMPETITION LAW FOR AFGHANISTAN

This document is a consultation ready draft of the Competition Law for Afghanistan. The draft law is developed by the Competition Promotion and Consumer Protection Directorate (CPCPD) of the Ministry of Commerce and Industries (MoCI), through the legal services of Economic Legal Practice (ELP), an Indian law firm. The consultation process seeks to enrich the draft through solicitation of input from key businesspersons and relevant stakeholders in the Afghan market. QARA Consulting, Inc. (QARA), a Kabul-based public affairs and business advisory services firm, is CPCPDs consultation partner. QARA did not have a role in drafting the law. The outputs of the consultation process will be processed by QARA, and any revisions or additions advised through the consultation process will be included in the post-consultation draft to be developed by QARAs legal experts.
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In the Name of Almighty Allah, The Most Compassionate, the Most Merciful Draft Competition Law: Preamble An Act, in accordance with Article 11 of the Constitution of the Islamic Republic of Afghanistan, to provide for the creation of a Competition and Consumer Authority to prevent anti-competitive practices, prevent the practice of hoarding of essential goods or services, to regulate combinations, ding mergers, acquisitions and amalgamations having an effect on competitive conditions in markets in Afghanistan, promote and sustain competition in markets, enhance economic efficiency and consumer welfare and to ensure freedom of trade carried out by various participants in the markets in Afghanistan. Be it enacted by the Parliament in the .year of the Islamic Republic of Afghanistan.

Chapter I Short title, extent and commencement 1. (1) This Act shall be called the Competition Act, 2011. (2) It extends to the whole of Afghanistan. (3) It shall come into force, either in whole or part, on such date, and in such manner, as the Government of the Islamic Republic of Afghanistan may, by notification in the Official Gazette, specify. 2. Definitions In this Act, unless the context otherwise requires: (a) Agreement includes any arrangement or understanding or action in concert whether written or oral, formal or informal or intended to be enforceable by legal proceedings. (b) Bid rigging means an agreement between two or more enterprises or persons which has the effect of eliminating or reducing competition for bids or manipulating the process of bidding and includes: (i) an agreement or arrangement between or among two or more enterprises or persons whereby one or more of those enterprises or persons agree or undertake any act of omission or commission in response to a call or request
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(ii)

for bids or tenders, or agree or undertake to withdraw a bid or tender submitted in response to such a call or request or in any other manner impact the bid or tender so as to affect the number of bidders or price and are arrived at by agreement or arrangement between or among two or more bidders or tenderers, where the agreement or arrangement is not made known to the person calling for or requesting the bids or tenders at or before the time when any bid or tender is submitted or withdrawn, as the case may be, by any enterprise or person who is a party to the agreement or arrangement.

(c) Consumer includes any person or enterprise who or which:

(i)

buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use;

(ii)

hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;

(d) Control includes the right or ability of a person or an enterprise to: (i) appoint majority of the directors in another enterprise; (ii) own more than one half of the issued share capital of an enterprise; (iii) cast a majority of the votes that may be cast at a general meeting of an enterprise, or control the voting of a majority of those votes either directly or through control over another enterprise; (iv) in the case of enterprise that operates as a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees, to appoint or change the majority of the beneficiaries of the trust;

in the case of a close corporation, owns the majority of members interest, or controls directly, or has the right to control the majority of members votes in the close corporation; or (vi) control or materially influence the management or policy decisions of an enterprise in a manner comparable to a person or enterprise who or which, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (i) to (vi). Explanation: (v) (a) The right or ability may be exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner (b) A director or officer of an enterprise shall not be considered to be in control over such enterprise company, merely by virtue of holding such position. (e) Dominant position means a position of strength enjoyed by an enterprise, in the relevant market, which enables it to operate independently of the competitive forces prevailing in that market. (f) Enterprise means a person or a department of the Government who or which is, or has been, engaged in any economic activity, either directly or through one or more of its units or divisions or subsidiaries, including the activity relating to: (i) (ii) (iii) (iv) the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries.

Explanation: economic activity of a department of the Government does not include any activity related to the sovereign functions of the Government, including its policy decisions and decisions related to defense, security, and international relations.

(g) Exclusive supply agreement includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person. (h) Exclusive distribution agreement includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods; (i) Essential facility means a facility or infrastructure without access to which competitors cannot provide services to their customers. (j) Essential commodity means such goods which the Government of the Islamic Republic of Afghanistan may, through regulations notify as being essential for the daily livelihood of people in Afghanistan. (k) Goods means every kind of movable property other actionable claims and money and includes: (i) products manufactured, processed or mined; (ii) growing crops, grass, and things attached to or forming part of land which are agreed to be severed before sale or under the contract of sale; and (iii) debentures, stocks and shares. (l) Hoarding includes any act of omission or commission by any enterprise or person involved in the procurement, sale and/or distribution of essential commodities which creates a short supply or otherwise interferes with the sale, distribution or supply of essential commodity in the relevant market. (m) Person shall include any company or association or body of individuals or a partnership, whether incorporated or not. (n) Price in relation to the sale of any goods or to the provision of any service, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing. (o) Predatory price means the sale of goods or provision of services by an enterprise below the average variable cost of production of the goods or provision of services.
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(p) Relevant market means the market which may be determined by the Competition and Consumer Authority with reference to the relevant product market or the relevant geographic market or with reference to both the markets. (q) Relevant geographic market means a market comprising of the area in which the conditions of competition for supply of goods or provision of services or demand for goods or services are distinctly homogenous and can be clearly distinguished from the conditions prevailing in the neighboring area, in particular because of economic and other factors, including: (i) regulatory trade barriers; (ii) local specification requirements; (iii) national procurement policies; (iv) distribution facilities; (v) transport costs; (vi) language; (vii) consumer preferences; and (viii) need for secure or regular supplies or rapid after sales services. (r) Relevant product market means a market comprising of all those goods or services which are regarded as interchangeable or substitutable by the consumer, including by reason of: (i) characteristics of the products or services; prices; (ii) (iii) (iv) (v) intended use; tastes and preferences; tariff or other classification of products; or any other economic factor.

(s) Resale price maintenance includes any agreement or direction to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller. (t) Refusal to deal includes any business practice or agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought.

(u) Service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters and includes, banking, communication, information technology, education, financing, insurance, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding lodging, entertainment, amusement, construction, repair, and advertising. (v) Statutory authority means an authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central or Provincial legislation for the purposes of regulating production or supply of goods or provision of any services or markets therefore or any other matter connected therewith or incidental therewith. (w) Tie-in arrangement includes any agreement or condition requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods. (x) Working day refers to those days counted as official working days for employees of the Government of the Islamic Republic of Afghanistan.

Chapter II: Prohibition of certain agreements, abuse of dominant position, hoarding and regulation of combinations

Anti-competitive Agreements: 3. (1) All agreements between enterprises or association of enterprises, including decisions of trade associations which have as their object or effect prevention, restriction or distortion of competition in the relevant market in Afghanistan shall be prohibited.

(2) In particular, agreements between enterprises engaged in identical or similar trade of goods or provision of services, which: (i) directly or indirectly determine purchase or selling prices or any other trading conditions; (ii) limit or control production, supply, markets, technical development, investment or provision of services, including by way of boycotts;

(iii)

(iv)

share the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; directly or indirectly result in bid rigging;

shall be prohibited and automatically cancelled.

(3) The prohibition under sub-section (1) shall not apply to reasonable restrictions that an enterprise may impose for protecting any of its intellectual property rights conferred under: (a) The Patent Act, 2008; (b) The Copyright Act, 2008; (c) The Trade Marks Act, 2009; or (d) Any other law relating to intellectual property rights.

Abuse of Dominant Position 4. (1) No enterprise shall abuse its dominant position by carrying out such business practices or entering into such agreements, which have as their object or effect prevention, restriction or distortion of competition in the relevant market. (2) Any business practice or agreement carried out or entered into by a dominant enterprise, which: (a) directly or indirectly, imposes unfair or discriminatory: (i) condition in purchase or sale of goods or services; or (ii) price in purchase or sale, including predatory prices, of goods or services,; or (b) directly or indirectly, imposes limitation or restriction on: (i) production, supply or distribution of goods or provision of services or market therefore; or (ii) technical or scientific development relating to goods or services; or (c) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or

(d) uses its dominant position in one relevant market to enter into, or protect, other relevant market; or (e) imposes restriction on the importation of goods for the purpose of maintaining artificially high prices; (f) indulges in practice or practices resulting in denial of market access

shall be presumed to have the effect of preventing, restricting or distorting competition in the relevant market and be prohibited under Sub-section (1). (3) Certain types of business practice(s) or agreement(s), when carried out or entered into by dominant enterprises, including: (a) tie-in arrangements; (b) imposing the requirement of resale price maintenance, unless it is expressly stated that prices lower than those prices may be charged; (c) exclusive supply agreements; (d) exclusive distribution agreements; and (e) refusal to deal. shall be prohibited under sub-section (1) only if such practice(s) or agreement(s) has the effect of preventing, distorting or restricting competition in the relevant market in Afghanistan.

Prohibition of hoarding: 5. (1) No person or enterprise shall either directly or indirectly indulge in the act or practice of hoarding of essential commodities. (2) Hoarding of essential commodities shall be prohibited. (3) The Government of the Islamic Republic of Afghanistan shall notify through regulation a list of goods to be known as essential commodities. (4) Any person or enterprise found to be indulging in the practice of hoarding of essential commodities shall be liable to such penalty as may be prescribed by the Competition and Consumer Authority under Section19.

Regulation of Combinations
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6. (1) No person or enterprise shall enter into a combination which has the object or effect of preventing, restricting or distorting competition in the relevant market in Afghanistan and such combination shall be void. (2) A combination shall be deemed to arise where a change of control results from the: (a) the merger or amalgamation of two or more previously independent enterprises or parts of enterprises, or (b) the acquisition, by one or more persons already controlling at least one enterprise, or by one or more enterprises, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more enterprises, or (c) the creation of a joint venture which performs or is intended to perform all the functions of an autonomous economic entity. (3) All combinations, where: (a) the parties to the combination, jointly have: (i) in aggregate, worldwide turnover in the preceding financial year of an amount specified in the regulations to this Act; or (ii) in aggregate, worldwide assets of an amount specified in the regulations to this Act; or (b) the combined market share of the parties to the combination in the relevant market in Afghanistan exceeds 50%.

shall be notified to the Competition and Consumer Authority for their approval, prior to their implementation and within thirty days of the approval of the proposal relating to the combination by the board of directors of the concerned enterprises or execution of a formal agreement, or announcement of public bid or the acquisition of a controlling interest.

(4) The parties to the combination shall provide the notification under sub-section (3) in the form as may be specified, and the fee which may be determined, by regulations.

7. (1) No combination shall come into effect until 90 working days have passed from the date on which the notice has been given to the Competition and Consumer Authority under sub-section (3) of Section 6 or the Competition and Consumer Authority has passed orders under Section 22 whichever is earlier.
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(2) The Competition and Consumer Authority shall, after the receipt of the notice under sub-section (3) of Section 6, deal with such notice in accordance with the provisions contained in Section 8.

8. (1) The requirement of prior notification under sub-section (3) of Section 3 shall not apply to a combination where: (a) all of the parties to the combination are, directly or indirectly, under the control of the same enterprise; (b) the person or enterprise acquiring control is a receiver or liquidator acting as such or is an underwriter acting as such; (c) control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy; (d) control is acquired by a public financial institution, foreign institutional investor, bank or venture capital fund pursuant to any covenant of a loan agreement or an investment agreement. [Ministry of Justice to provide definitions, as necessary] (2) The parties to the types of combination referred to in sub-section (1) shall, within seven working days from the date of the acquisition of control, file, in the form and manner as may be specified by regulations, with the Competition and Consumer Authority the details of the acquisition.

Pre-notification consultations: 9. (1) If the parties to a proposed combination consider that their combination may meet the notification thresholds specified under sub-section (3) of Section 6 and that they need the Competition and Consumer Authoritys assistance in deciding on the form and manner of notification and the detail up to which information about the combination is to be provided under sub-section (2) of Section 8, they may make a written request, the form as may be specified, and the fee which may be determined, by regulations for pre-notification consultation with the Competition and Consumer Authority.

(2) The Competition and Consumer Authority may provide informal and non-binding opinion about the possible anti-competitive effects that may arise from the combination.

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(3) The Competition and Consumer Authority shall maintain strict confidentiality about the information received pursuant to a request under sub-section (1).

Chapter III: Competition and Consumer Authority

Appointment of Members of the Competition and Consumer Authority 10. (1) The President shall, on the recommendation of the Minister for Commerce and Industry, for the purposes of this Act, by notification, appoint five above the rank of grade 1 to be members of the Competition and Consumer Authority for the purposes of this Act. (2) Persons so appointed must have appropriate skills and experience as set out in regulations under this Act (3) One of the members will be designated as the Chair of the Competition and Consumer Authority with powers, duties and responsibilities set out in regulations. (4) The Competition and Consumer Authority shall be part of the Ministry of Commerce and Industry, Government of Afghanistan. (5) For the purposes of making decisions or imposing penalties under this law, the Competition and Consumer Authority shall be independent of the Ministry of Commerce and the Government of Afghanistan with defined autonomy as may be provided under regulations. (6) The Minister for Commerce and Industry will provide to the Competition and Consumer Authority the services of such other persons and such other facilities as are needed by the Competition and Consumer Authority to discharge its duties. (7) A member of the Competition and Consumer Authority shall hold office for a term of four years from the date on which he or she enters upon his or her office and shall be eligible for re- appointment for a further term of four years.

Resignation, removal and suspension of a member of the Competition and Consumer Authority 11. (1) A member of the Competition and Consumer Authority may, by notice in writing under his or her hand addressed to the President, with a copy provided to the Minister of Commerce and Industry at the same time, resign his or her office:

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Provided that the member of the Consumer and Competition Authority shall, unless he or she is permitted by the President to relinquish his or her office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his or her successor enters upon his or her office or until the expiry of his or her term of office, whichever is the earliest. (2) Notwithstanding anything contained in sub-section (1), the President may, on the recommendation of the Minister for Commerce and Industry, by order, remove or suspend the chairperson or any member of the Competition and Consumer Authority from his or her office as the case may be if he or she

(a) is, or at any time has been, adjudged as an insolvent [Ministry of Justice to confirm at the formal consultation stage]; or (b) has engaged at any time, during his term of office, in any paid employment outside the terms of his or her employment as the Competition and Consumer Authority; or (c) has been convicted of an offence in a court of law that involves moral turpitude[Ministry of Justice to confirm at the formal consultation stage]; or (d) has acquired such financial or other interest as is likely to affect prejudicially his or her functions as a Member; or (e) has so abused his or her position as to render his or her continuance in office prejudicial to the public interest; or (f) has become physically or mentally incapable of acting as a Member.

Notwithstanding anything contained in sub-section (2), the chairperson or a member of the Competition and Consumer Authority shall not be removed from his or her office on the ground specified in clause (d) or clause (e) or clause (f) of that subsection unless an appropriate inquiry has held that a member of the Competition and Consumer Authority, ought on such ground or grounds be removed. (3) The report of any inquiry conducted under sub-section (2) will be provided to Cabinet at the earliest possible time. (4) A vacancy caused by the resignation or removal of a member of the Competition and Consumer Authority under Section 7 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of Section 6.

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(5) A member of the Competition and Consumer Authority shall, before entering upon his or her office, make and subscribe to an oath of office in such form, manner and before such authority, as may be prescribed.

(6) In the event of the occurrence of a vacancy in the office of the Competition and Consumer Authority by reason of a members death, resignation or otherwise, the Minister of Commerce and Industry shall appoint a person of repute and competence to act as an interim member of the Competition and Consumer Authority, until the date on which a new member of the Competition and Consumer Authority, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his or her office. Restriction on employment of members of the Competition and Consumer Authority in certain cases 12. (1) A member of the Competition and Consumer Authority shall not accept or hold any other professional position or employment during his or her tenure as such.

(2) A member of the Competition and Consumer Authority shall not, for a period of two years from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Competition and Consumer Authority under this Act.

Nothing contained in this Section shall apply to any employment under the Government of the Islamic Republic of Afghanistan or a Provincial Government or local authority or in any statutory authority.

Salary and allowances and other terms and conditions of services of a member of the Competition and Consumer Authority 13. The salary, and other terms and conditions of service of a member of the Competition and Consumer Authority, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed by rules. Vacancy not to invalidate proceedings of the Competition and Consumer Authority
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14. No act or proceedings of the Competition and Consumer Authority shall be invalid merely by reason of any: (a) Defect in the appointment of a member of the Competition and Consumer Authority; or (b) Defect in the appointment of a person acting as a member of the Competition and Consumer Authority in a temporary capacity; or (c) Any irregularity in the procedure of the Competition and Consumer Authority not affecting the merits of the case.

Competition and Consumer Authority Secretariat: 15. (1) The Minister of Commerce and Industry shall appoint a Head of the Consumer and Competition Authority Secretariat and such other officers and staff in the office of the Consumer and Competition Authority Secretariat, as may be necessary for the purposes of assisting the Consumer and Competition Authority in managing its affairs responding to the results of inquiries conducted under this Act and such other functions as may be specified by regulations.

(2) For the purpose of sub-section (1), the Head of the Consumer and Competition Authority Secretariat shall have all the powers as are conferred upon the Head of the Consumer and Competition Authority Secretariat under sub-section (2) of section 17.

(3) The number of other officers and staff in the office of the Consumer and Competition Authority Secretariat and the manner of appointment of such officers and staff shall be such as may be prescribed by rules. (4) The salary, allowances and other terms and conditions of services of the Head of the Consumer and Competition Authority Secretariat and other officers and staff in the office of the Consumer and Competition Authority Secretariat shall be such as may be prescribed by rules. (5) The Head of the Consumer and Competition Authority Secretariat shall be appointed following a merit based recruitment process overseen by the Consumer and Competition Authority.

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Chapter IV Duties and powers of the Competition and Consumer Authority 16. (1) Subject to the provisions of this Act, it shall be the duty of the Competition and Consumer Authority to: (a) eliminate practices having adverse effect on competition; (a) promote and sustain competition; (b) protect the interest of consumers; (c) ensure freedom of trade is carried out by all participants in the markets in Afghanistan; and (d) take suitable measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues. (e) Provide policy inputs suo moto or on the receipt of a reference from the Ministry of Commerce and Industry for furthering competitive markets (f) Review mergers and assess their impact on competition.

(2) The Competition and Consumer Authority may, with prior approval of the Minister of Commerce and Industry, enter into a memorandum or arrangement with any agency of any foreign country for the purposes of discharging its duties or performing its functions under this Act. (3) The Competition and Consumer Authority may engage, in accordance with the procedure specified by rules, such number of experts and professionals of integrity and outstanding ability, including international experts, who have special knowledge of, and experience in, economics, law, business or such other disciplines related to competition, as it deems necessary to assist the Competition and Consumer Authority in the discharge of its functions in the Act.

17. (1) In the discharge of its functions, the Competition and Consumer Authority shall be guided by the principles of natural justice [Ministry of Justice to confirm at formal consultation stage] and the rights and obligations contained in the Constitution of Afghanistan.

(2) The Competition and Consumer Authority shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the

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Afghanistans Code of Civil Procedure, while trying a suit, in respect of the following matters, namely: (a) summon and enforce the attendance of any person and examining him on oath; (b) require the discovery and production of documents; (c) receive evidence on affidavit; (d) issue commissions for the examination of witnesses or documents; (e) requisition any public record or document or copy of such record or document from any office. The Competition and Consumer Authority may delegate its powers as set out in Section 17.2 to the Director of the Consumer Protection and Competition Directorate and the Head of the Competition and Consumer Authority Secretariat. For the purpose of enforcing the above powers the Competition and Consumer Authority will be able to draw power and impose fines and other penalties and be subject to appeals as set out in articles 294, 290-292, 257, 249, 248, 246 of Afghanistan Penal code of 1976. Inquiry into agreements, abuse of dominant position, combinations and hoarding 18. (1) The Competition and Consumer Authority may inquire into any alleged contravention of the provisions of Section 3 or Section 4 or Section 5 or Section 6 either on its own motion or on: (a) The receipt of information, from any person, enterprise or consumer; or (b) a reference made to it by the Government of the Islamic Republic of Afghanistan or a Provincial Government or a statutory authority; or (c) At the direction of the Minister of Commerce and Industry. (2) On the receipt of information or reference under sub-section (1), the Competition and Consumer Authority shall determine whether: (a) the information or reference pertains to the contravention of the provisions of the Act; and (b) the nature of alleged infringement is such that it warrants investigation. (3) The Competition and Consumer Authority may decide not to proceed further on the basis of information or reference received under subs-section (1) when on the basis of an assessment under sub-section (2) it considers that the case does not require further investigation. Where it does so, its reasons for so doing will be available to the public, the complainant and will appear in its annual report.

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(4) In the event that the Competition and Consumer Authority, on the basis of an assessment under sub-section (2) considers that the case requires further investigation, it shall direct the Director of the Competition Promotion and Consumer Protection Directorate to conduct an investigation and he/she shall proceed with the inquiry as per such procedure as may be prescribed by rules.

(5) In the event that the Minister of Commerce and Industry directs the Director of the Competition Promotion and Consumer Protection Directorate to examine any agreement or any business practice entered into or carried out by any enterprise, he or she shall proceed with the inquiry as expeditiously as possible.

(6) The Competition and Consumer Authority shall while determining whether an agreement under Section 3 or a business practice under Section 4 has the object or effect of restricting, preventing or distorting competition in the relevant market, consider the relevant economic factors, including: (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; and (f) promotion of technical, scientific and economic development. (7) The Competition and Consumer Authority shall while determining whether an enterprise enjoys a dominant position or not under Section 4, have due regard to all or any of the following factors, namely: (a) market structure and size of the market; (b) market share of the enterprise or group of enterprises; (c) size and resources of the enterprise or group of enterprises; (d) size and importance of competitors; (e) economic power of the enterprise or group of enterprises including commercial advantage over competitors; (f) vertical integration of the enterprise or sale or service network of such enterprise; (g) dependence of consumers on the enterprise; (h) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government or public sector enterprise or otherwise;

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(i)

(j)

entry barriers including barriers such as regulatory barriers, financial risk, high cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or services for consumers; and countervailing buying power.

19. (1) For the purposes of determining under Section 6 whether a combination has the object or effect of preventing, restricting or distorting competition in the relevant market, the Competition and Consumer Authority shall have due regard to the relevant economic factors, including: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) actual and potential level of competition through imports in the market; extent of barriers to entry in the market; level of combination in the market; likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins; extent of effective competition likely to sustain in a market; extent to which substitutes are available or are likely to be available in a market; combined and separate market share, in the relevant market, of the parties to the combination; likelihood of the combination resulting in the removal of effective competitors in the market; nature and extent of vertical integration in the market; possibility of a failing business; and nature and extent of innovation.

(2) The Competition and Consumer Authority shall, after the completion of the inquiry, provide its report to the Minister of Commerce and Industry. Orders by the Competition and Consumer Authority after inquiry into agreements, abuse of dominant position or hoarding 20. If on the basis of an inquiry under Section 18, the Competition and Consumer Authority finds that any agreement or a business practice or agreement carried out or entered into by an enterprise enjoying a dominant position, is in contravention of the provisions under Section 3 or Section 4 or Section 5, as the case may be, or that an enterprise or person has indulged in the act or practice of hoarding under Section 5, it may pass all or any of the following orders, namely:

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(a) direct any enterprise or association of enterprises or group of enterprises, as the case may be, involved in such agreement, or abuse of dominant position, or hoarding to discontinue and not to re-enter such an agreement or discontinue such abuse of dominant position or discontinue the act or practice of hoarding, as the case may be; (b) direct that the agreements or business practice shall stand modified to the extent and in the manner as may be specified in the order by the Competition and Consumer Authority; (c) direct the enterprises concerned to abide by such other orders as the Competition and Consumer Authority may pass and comply with the directions, including payment of costs, if any; (d) pass such other order or issue such direction as it may deem fit.

Division of enterprise enjoying dominant position 21. (1) The Competition and Consumer Authority may direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant position. (2) The direction issued under sub-section (1) may provide for all or any of the following matters, namely: (a) the transfer or vesting of property, rights, liabilities or obligations; (b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise; (c) the creation, allotment, surrender or cancelation of any shares, stocks or securities; (d) the formation or winding up of an enterprise or the amendment of the memorandum or articles of association [Ministry of Justice to confirm at the formal consultation stage] or any other instrument regulating the business of the enterprise; (e) any other matter which may be necessary to give effect to the division of the enterprise. Orders of the Competition and Consumer Authority on certain combinations 22. (1) Where the Competition and Consumer Authority is of the opinion that any combination does not, or is not likely to, have as its object or effect prevention, restriction or distortion of competition, it shall, by order in writing, approve the combination in respect of which a notice has been given under sub-section (3) of Section 6 or sub-section (2) of Section 8.
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(2) Where the Competition and Consumer Authority is of the opinion that the combination has, or is likely to have as its object or effect prevention, restriction or distortion of competition, it shall direct that the combination shall not take effect. (3) Where the Competition and Consumer Authority is of the opinion that the combination has, or is likely to have as its object or effect prevention, restriction or distortion of competition but such prevention, restriction or distortion of competition can be eliminated by suitable modification to such combination, it may direct the parties to the combination to carry out such modification as they may deem fit and submit their revised scheme of combination within such time as may be specified by the Competition and Consumer Authority. (4) If the parties to the combination fail to submit a modified scheme of their combination within the time specified in sub-section (3), the combination shall be deemed to have an effect of prevention, restriction and distortion of competition in the relevant market and the Competition and Consumer Authority shall pass an order directing that the combination shall not take effect. (5) On the receipt of the revised scheme of combination pursuant to the direction under sub-section (3), the Competition and Consumer Authority shall, if satisfied that the revised scheme of combination will no longer have the effect of preventing, distorting or restricting competition in the relevant market, by an order, approve the combination. However, if the Competition and Consumer Authority is of the opinion that the revised scheme of combination may still have the effect of preventing, distorting or restricting competition in the relevant market direct the parties to the combination to carry out such modification that it considers necessary. (6) The parties to the combination shall carry out the agreed actions outlined in their modified scheme of combination within the period as may be specified by the Competition and Consumer Authority. If the parties to the combination fail to carry out the agreed actions in their modified scheme within the period specified by the Competition and Consumer Authority, such combination shall be deemed to have as its object or effect prevention, restriction or distortion of competition and shall not be allowed to take effect by an order under sub-section (2). (7) If the Competition and Consumer Authority does not, on the expiry of a period of 90 working days from the date of the receipt of a notice under subsection (3) of Section 6 or sub-section (2) of Section 8, pass an order or issue directions in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (4) and sub-section (6),
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the combination shall be deemed to have been approved by the Competition and Consumer Authority.

For the purposes of determining the period of ninety working days specified in this subsection, the period of thirty working days specified in sub-section (3) of Section 6 and the period of seven working days specified in sub-section (2) of Section 8 shall be excluded. Interim Orders 23. (1) Where during an inquiry, the Competition and Consumer Authority is satisfied, on the basis of evidence before it, that an act in contravention of Section 3 or of Section 4 or of Section 5 or of Section 6 has been committed or continues to be committed or that such act is about to be committed, the Competition and Consumer Authority may, by order in writing, temporarily restrain any party from carrying on such act until the conclusion of such inquiry or until further orders. (2) In the event that the Competition and Consumer Authority passes an order under subsection (1), it shall as far as possible complete the investigation under Section 18 within 180 days from the date of issuance of the order under sub-section (1). Competition and Consumer Authority (3) The lapse of the order issued under sub-section (1) at the expiry of 90 working days shall not affect the inquiry under Section 18 and the Competition and Consumer Authority shall proceed with the inquiry, as it may deem fit. Rectification of orders 24. (1) With a view to rectifying any mistake apparent from the record, the Competition and Consumer Authority may, with prior consent of the Minister of Commerce and Industry, amend any order by it under the provisions of this Act. [Ministry of Justice to confirm at the formal consultation stage]. (2) Subject to other provisions of this Act, the Competition and Consumer Authority may make: (a) An amendment under sub-section (1) of its own motion; (b) An amendment for rectifying any such mistake which has been brought to its notice by any party to the order. Fines for infringing the provisions of Section 3, 4, 5 or 6
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25. (1) In addition to the orders that the Competition and Consumer Authority may pass under Section 20, 21 or 22 as the case may be, it may also impose fines for the infringement of the requirements under Section 3, Section 4, Section 5 and Section 6. (2) In the case of any agreement referred to in Section 3, the Competition and Consumer Authority may impose upon each of the parties to the agreement, a fine of up to three times its profit for each year of the existence and continuance of such agreement or ten percent of its aggregate turnover for each financial year of the existence and continuance of such agreement, whichever is higher. (3) In the case of a business practice or agreement, as the case may be, referred to in Section 4, the Competition and Consumer Authority may impose upon the dominant enterprise a fine up to ten percent of its aggregate turnover in the preceding three financial years. In case of an act or practice of hoarding referred to in Section 5, the Competition and Consumer Authority may impose upon the enterprise(s) or person(s) indulging in the act or practice of hoarding a fine up to three times the profit made by the concerned enterprise or the enterprises during the entire period of hoarding or ten percent of the aggregate turnover of the enterprise or enterprises during the entire period of hoarding, whichever is higher. Fines for non-furnishing of information on combinations 26. If any party to a combination which is required to give notice to the Competition and Consumer Authority under sub-section (3) of section 6 or sub-section (2) of Section 8 fails to do so, the Competition and Consumer Authority shall impose on such enterprise a penalty, as prescribed in regulations. Fines for making false statement or omission to furnish material information

27. If any enterprise, who furnishes or is required to furnish any information, documents or evidence: (a) refuses to furnish the information, documents or evidence in any other form; or (b) makes any statement or furnishes any document or evidence in any other form which it knows or has reason to believe to be false shall be punishable with such fines which may be prescribed by regulations.
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Imposition of lesser fines 28. (1) The Competition and Consumer Authority may, if it is satisfied that any party to an agreement under Section 3, has made full and true disclosure to the Competition and Consumer Authority in respect of the agreement and such disclosure is vital for the inquiry under Section 18, impose upon such a party to the agreement a lesser penalty as it may deem fit, than what may otherwise be leviable under the provisions of this Act.

(2) A lesser penalty shall not be imposed where the Competition and Consumer Authority has made significant progress in the inquiry under Section 18 on its own accord and the information received under sub-section (1) does not materially supplement its findings. (3) The procedure for the administration of this Section shall be prescribed by regulations.

Factors to be considered while determining the quantum of fine 29. (1) While determining an appropriate amount of fine under section 25,26 and 27 of this Act, the Competition and Consumer Authority shall consider all or any of the following factors: (a) the nature, duration, gravity and extent of the infringement; (b) any loss or damage suffered by competitors or consumers because of the infringement; (c) the degree of co-operation by the alleged infringers in the inquiry process; (d) the level of profits derived from the infringement; (e) whether the alleged infringer has previously been found to be in contravention of the provisions of this Act. (2) The procedure to be followed while determining the quantum of fines may be specified by regulations.

Execution of orders of the Competition and Consumer Authority imposing fines 30.

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If an enterprise fails to pay any fine imposed on it under this Act, the Competition and Consumer Authority shall proceed to recover such penalty, in such manner as may be specified by regulations. [To discuss with the Ministry of Justice/Ministry of Commerce, Govt. of Afghanistan whether a Competition and Consumer Authority may be empowered to attach property for recovery of fines.]

Chapter VI Designating/establishing a special bench of Commercial Courts to hear appeals

31. (1) The President, on the recommendation of the Minister of Commerce, [Ministry of Justice to confirm at the formal consultation stage] shall by notification, establish/designate a special bench of the Commercial Court, to be known as the Competition Court for hearing appeals against a decision made, direction issued or order passed by the Competition and Consumer Authority under sub-section (4) of Section 18, sub-section (5) of Section 18, Section 19, Section 20, sub-section (1) of Section 21, Section 22, subsection (1) of Section 23, Section 25, Section 26, and Section 27, Section 28 as the case may be. (2) The Competition Court shall follow such rules of procedure as may be prescribed by the Commercial Court.

Appeals to the Competition Court 32. (1) A party to an inquiry before the Competition and Consumer Authority, when aggrieved by a decision made, direction issued or order passed by the Competition and Consumer Authority under sub-section (4) of Section 18, sub-section (5) of Section 18, Section 19, Section 20, sub-section (1) of Section 21, Section 22, subsection (1) of Section 23, Section 25, Section 26, and Section 27, Section 28 as the case may be, may prefer an appeal to the Competition Court. (2) Every appeal under sub-section (1) shall be filed within sixty days [to be confirmed- may change according to the rules of procedure of Commercial courts] from the date on which a copy of the decision made, direction issued or

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order passed by the Competition and Consumer Authority referred to in subsection (1) is received by the concerned party to an inquiry. (3) The appeal shall be in such form and be accompanied by such fees as may be prescribed by the Competition Court. (4) The Competition Court may entertain an appeal after the expiry of the period of sixty days specified in sub-section (2) if it is satisfied that there was sufficient cause for not filing the appeal within that period. (5) On receipt of an appeal under sub-section (1) the Competition Court may, pass such orders as it deems fit, confirming, modifying or setting aside the decision, direction or order appealed against or it may refer the case back to the Competition and Consumer Authority with such direction as it may think fit for fresh adjudication or decision as the case may be, after taking additional evidence, if necessary. Appeal to Supreme Court: 33. The Ministry of Commerce or any Provincial government or the Competition and Consumer Authority or any statutory or any local authority or any enterprise or any person aggrieved by any decision or order of the Competition Court may file an appeal to the Supreme Court [Ministry of Justice to confirm] within sixty days from the date of communication of the decision or order of the Competition Court to them. Imposition of penalty by the Competition Court 34. (1) On a receipt of a written request from the Competition and Consumer Authority, the Competition Court may cause an enquiry to be made into compliance with the Competition and Consumer Authoritys orders or directions made in exercise of its powers under the Act. (2) If any enterprise, without reasonable cause, fails to comply with the orders or directions of the Competition and Consumer Authority issued under Section 21, Section 22, Section 23 and Section 24 of the Act, it shall be punishable with such fines which may be prescribed under regulations for each day during which such noncompliance occurs. (3) Without prejudice to the provisions of this Act, any person may make an application to the Competition Court to adjudicate on a claim for compensation that may arise from the findings of the Competition and Consumer Authority, and to pass an order for the recovery of compensation from any enterprise for any loss or damage shown to have
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been suffered as a result of any contravention of the provisions of Chapter II, having been committed by such enterprise.

Chapter VII Funding by Central government 35. The Government of the Islamic Republic of Afghanistan will as part of the annual budget of the Ministry of Commerce and Industry, [Ministry of Justice to specify the mechanism] provide such financial grants to the Competition and Consumer Authority, as it deems fit for the administration of the provisions of this Act Furnishing of returns to the Minister of Commerce and Industry 36. (1) The Competition and Consumer Authority shall furnish to the Minister of Commerce and Industry, such returns and statements and such particulars in regard to any proposed or existing measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues, at such time and in such form as the Minister of Commerce and Industry may require. (2) The Competition and Consumer Authority shall prepare an annual report giving an accurate and full account of its activities during previous the previous year and provide a copy of the report to the Minister of Commerce and Industry within three months of the end of the financial year. (3) On the receipt of the annual report from the Competition and Consumer Authority, the Minister of Commerce and Industry shall table the report in the Parliament at the earliest possible occasion. Chapter VIII Power to Exempt: 37. (1) The Competition and Consumer Authority may, with prior approval of the Minister of Commerce and Industry, by notification and for reasons to be recorded in writing and made publicly available, exempt from the application of this Act, and for such period as it may specify in such notification: (i) any agreement or category of agreements between enterprises; (ii) any decision or category of decisions by associations of enterprises; (iii) any concerted practice or category of concerted practices,
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which contributes to increase in efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services or to promoting technical development or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the enterprises or the association of enterprises concerned restrictions which are not indispensable to the attainment of these objectives; and afford such enterprises or association of enterprises the possibility of eliminating competition in respect of a substantial part of the products in question.

(b)

Confidentiality 38. 1. Any information which is by nature confidential or which is provided on a confidential basis shall, upon cause being shown, be treated as such by the Competition and Consumer Authority or the Director of the Consumer Protection and Competition Promotion Directorate or the Head of the Secretariat Competition and Consumer Authority as the case may be, in accordance with the procedure specified by regulations, and shall not be disclosed without specific authorization of the party providing such information. 2. The Competition and Consumer Authority or the Director of the Consumer Protection and Competition Promotion Directorate or the Head of the Secretariat of the Competition and Consumer Authority, as the case may be, can require the parties providing information on confidential basis to furnish a non confidential version thereof and if, in the opinion of the party providing such information, such a non-confidential version cannot be provided, such party may submit to the Competition and Consumer Authority or the Director of the Competition Promotion and Consumer Protection Directorate a statement of reasons for non-submission of a non-confidential version. 3. Notwithstanding anything contained in sub-section (1), if Competition and Consumer Authority or the Director of the Competition Promotion and Consumer Protection Directorate or the Head of the Secretariat Competition and Consumer Authority, as the case may be, is satisfied that the request for confidentiality is not warranted or the supplier of the information is unwilling either to make the information public or to authorize its disclosure, he may disregard such information altogether. 39. Protection of action taken in good faith No suit, prosecution or other legal proceeding shall lie against the Competition and Consumer Authority or the Director of the Competition Promotion and Consumer Protection Directorate or the Head of the Secretariat Competition and Consumer Authority
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or any other officers under this Act for any act done in good faith under this Act or under any rule or regulations made there under. Application of other laws 40. (1) The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law which is for the time being in force. (2) In the event that the Competition and Consumer Authority, either on its own or on the basis of information provided or argument raised by an interested party during the course of an inquiry, considers that the subject matter of the inquiry may be best examined under the provisions of any other existing law, it shall refer the matter to be investigated to the appropriate authority responsible for the administration of that Act; (3) Within thirty days from the date of receipt of a reference under sub-section (2), the appropriate authority shall communicate its decision to take up the investigation to the Competition and Consumer Authority. (4) In the event that the appropriate authority decides not to take up the investigation referred to under sub-section (2) or does not communicate its decision to take up the investigation within thirty days of receipt of the reference, the Competition and Consumer Authority may proceed with the inquiry under the provisions of this Act. (5) In the event that the appropriate authority to whom the Competition and Consumer Authority has made a reference under sub-section (2) considers that it is empowered to examine only some of the issues referred to by the Competition and Consumer Authority, it shall refer back the remaining issues to the Competition and Consumer Authority to be examined under the provisions of this Act. (6) Once the Competition and Consumer Authority initiates the inquiry under sub-section (4) or sub-section (5), the provisions of this Act shall take precedence over the provisions of any other Act in force. Extraterritorial application 41. The provisions of this Act shall apply to all such agreements or business practices which have a direct, foreseeable and substantial effect in the relevant market in Afghanistan, irrespective of whether such agreement, business practice or combination is entered into or carried out outside of Afghanistan or any or all parties to the agreement, business practice or combination are located outside of Afghanistan.
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Power to make rules 42. (1) The Minister of Commerce and Industry may, by notification, make rules to carry out the provisions of this Act. (2) The rules framed under sub-section (1) may include rules for all or any of the following matters: (a) the salary, and other terms and conditions of service of a member of the Competition and Consumer Authority; (b) how the Competition and Consumer Authority engages experts (c) the form and manner in which and the authority before whom the oath of office for a member of the Competition and Consumer Authority is sworn. (d) the processes used by the Competition and Consumer Authority to conduct its investigations (e) the number of officers and staff to be appointed in the office of the Head of the Competition and Consumer Authority Secretariat and the manner of appointment of such officers and staff; (f) the salary, allowances and other terms and conditions of the officers and staff of the office of the Head of the Competition and Consumer Authority Secretariat; (g) the form in which the annual statement of accounts shall be prepared under subsection (2) of Section 36; (h) the time within which and the form and manner in which the Competition and Consumer Authority may furnish returns, statements and such particulars as the Minister of Commerce and Industry may require under sub-section (1) of Section 36; (i) the form in which the annual report shall be prepared under sub-section (2) of Section 36; (j) any other matter, which is to be, or may be, prescribed, or in respect of which provision may be made by rules.

Power to make regulations 43. (1) Further regulations may be made by the Government of the Islamic Republic of Afghanistan in support of this legislation Competition and Consumer Authority (2) The regulations may provide for all or any of the following matters: (a) the list of goods to be classified as essential commodities as specified under subsection (3) of Section 5 (b) aggregate, in both worldwide turnover and market share of combinations in the preceding financial year under subsection (3) Section 6
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(c) fees for notification under Section 6 (d) the form and manner for notifying the Competition and Consumer Authority of a merger or combination under section 6; (e) the form, manner and fee for pre-notification under Section 9; (f) the skills and experience required for appointment as a member of the Competition and Consumer Authority (g) the powers, duties and responsibilities of the Chair of the Competition and Consumer Authority; (h) additional functions and responsibilities of the Competition and Consumer Authority; (i) the rules and procedures to be followed by the Competition and Consumer Authority while determining the quantum of fines leviable under the Act; (j) the procedures for imposing lesser fines under Section 28 and administering this Section; and (k) the rules and procedures to be followed by the Competition and Consumer Authority for recovering the penalty already imposed upon an infringing party as specified under Section 30; (l) any other matter in respect of which provision needs to be made by regulations to further clarify or implement this Act.

Repeal and Savings 44. (1) The Competition Act, 2010 and the Anti-hoarding Law shall be repealed from the date on which the provisions of this Act are brought into force by a notification in the Official Gazette. (2) All pending cases, if any, under the Competition Act, 2010 and the Anti-hoarding Law shall stand transferred to the Consumer and Competition Authority established under this Act. (3) The Consumer and Competition Authority shall inquire into the pending cases as per the provisions of the Competition Act, 2010 or the Anti-hoarding Law, as the case may be.

Transition period 45. From the date of entry into force of the provisions of this Act, all enterprises shall be accorded a period of six months to bring their existing agreements or business practices in conformity with the provisions of this Act.
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Power of the Minister of Commerce and Industry to supersede the Competition and Consumer Authority: 46. (1) If at any time the Minister of Commerce and Industry with the approval of the President is of the opinion that: (a) on account of circumstances beyond the control of the Competition and Consumer Authority, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or (b) the Competition and Consumer Authority has persistently failed in the discharge of the functions or performance of the duties imposed on it by or under the provisions this Act and as a result of such failure the financial position of the Competition and Consumer Authority or the administration of the Competition and Consumer Authority has suffered; or (c) circumstances exist which render it necessary in the public interest so to do,

the Minister of Commerce and Industry may, by a notification, following an inquiry which will be tabled in Parliament at the earliest possible time, and for reasons to be specified therein, supersede the Competition and Consumer Authority for such period, not exceeding six months, as may be specified in the notification. (2) Before issuing the notification under sub-section (1), the Minister of Commerce and Industry shall give a reasonable opportunity to the Competition and Consumer Authority to make representations against the proposed supersession and shall consider representations, if any, of the Competition and Consumer Authority. (3) Upon the publication of a notification under sub-section (1) superseding the Competition and Consumer Authority: (a) the Competition and Consumer Authority shall, as from the date of the supersession, vacate their offices; (b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Competition and Consumer Authority shall, until the Competition and Consumer Authority is reconstituted under sub-section (4), be exercised and discharged by a suitable person appointed by the Minister of Commerce and Industry.

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(4) On or before the expiration of the period of supersession specified in the notification issued under sub-section (1), the Government of the Islamic Republic of Afghanistan shall reconstitute the Competition and Consumer Authority. (5) The Minister of Commerce and Industry shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before the Parliament at the earliest.

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