Competition Commission v. Nutanix Hong Kong Ltd and Others

CTEA 1/2017

IN THE COMPETITION TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2017

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Before: Hon G. Lam J, President of the Competition Tribunal in Chambers

Date of Application: 23 March 2017

Date of Decision: 28 March 2017

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D E C I S I O N

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1.On 23 March 2017 the Competition Commission applied in writing with a supporting affirmation pursuant to r 37 of the Competition Tribunal Rules (Cap 619D) for confidential treatment of an Originating Notice of Application intended to be filed in the Tribunal. The Originating Notice of Application contains an application against 5 respondents pursuant to ss 92 and 94 of the Competition Ordinance (Cap 619), contending that they had contravened the first conduct rule (s 6(1)) in relation to a tender exercise conducted by the Hong Kong Young Women’s Christian Association (“YWCA”) in mid‑2016 for the supply and installation of an IT server system.

2.The information which the Commission seeks to have made confidential as against the public (but not as against the respondents) falls into 3 categories, namely, (i) the prices submitted in the 2 tenders; (ii) the identities of the individuals employed or formerly employed by YWCA and the 5 respondents referred to in the Originating Notice of Application; and (iii) the identity of the complainant.

3.The procedural requirements of r 37 and the Tribunal’s Practice Direction No 2 have been complied with.  Having considered the matters put forward and having taken account of the circumstances including the matters referred to in r 37(6), I am satisfied that it is appropriate to grant the confidentiality treatment sought, at any rate on an ex parte basis at this stage.  The tender prices are commercial information of the respondents not generally available in the public domain.  The current and former employees named in the Originating Notice of Application are not parties to the proceedings and disclosure of their identities, at least before any findings are made, may cause them unnecessary harm.  The identity of the complainant is of little significance to these proceedings and unnecessary disclosure may become a disincentive for potential complainants.

4.I therefore allow the redactions made in the copy of the Originating Notice of Application prepared by the Commission as exhibited to the affirmation.  The full non‑redacted version will remain sealed up and not open to inspection by the public without leave of the Tribunal.

Written submission by Winston & Strawn for the Applicant