GIBRALTAR Law and Practice Contributed by: Emma Lejeune, Stuart Dalmedo, Nicholas Isola, James Castle and Louise Anne Turnock, ISOLAS LLP
Any person that is guilty of a cartel offence is liable: • on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or both; • on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum (GBP10,000), or to both. Proceedings for a cartel offence may only be instituted with the consent of the Attorney General and no proceedings may be brought in respect of an agreement outside Gibraltar, unless it has been implemented in whole or in part in Gibraltar. The GCMA has the power to conduct an inves - tigation if there are reasonable grounds for sus - pecting that a cartel offence has been commit - ted. 6.4 Abuse of Dominant Position Under Chapter 2 of the Act, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position within a market is prohibited if it may affect trade within Gibraltar. For the purpose of the Act, conduct may constitute such an abuse if it consists of: • directly or indirectly imposing unfair purchase or selling prices or other unfair trading condi - tions; • limiting production, markets or technical development to the prejudice of consumers; • applying dissimilar conditions to equiva - lent transactions with other trading parties, thereby placing them at a competitive disad - vantage; or • making the conclusion of contracts subject to acceptance by the other parties of sup -
plementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contract. The prohibition set out above is subject to certain exclusions. These exclusions cover a number of scenarios including: services of general eco - nomic interest, compliance with legal require - ments, avoidance of conflicts with international obligations and reasons of public policy. Where the GCMA has reasonable grounds for suspecting that the prohibition has been infringed, it may conduct an investigation. If the GCMA forms a decision that the conduct infring - es the prohibition, it may give to such a per - son or persons as it considers appropriate such directions as it considers appropriate to bring the infringement to an end. A direction may, in particular, include provision requiring the person concerned to modify the conduct in question or require them to cease that conduct. If a person fails without reasonable excuse to comply with a direction, the GCMA may apply to the court for an order requiring the defaulter to make good their default within a time specified in the order, and if the direction relates to anything to be done in the management or administration of an undertaking, to require the undertaking or any of its officers to do so. If the GCMA is satisfied that an infringement has been committed intentionally or negligently by an undertaking, it may require the undertak - ing concerned to pay the GCMA a penalty not exceeding 10% of the turnover of the undertak - ing in respect of the infringement.
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