The Single Economic Entity Doctrine in Competition Law

This article was published in the June 2016 issue of the Singapore Law Gazette, the official publication of the Law Society of Singapore The Single Economic Entity Doctrine in Competition Law Competition law is concerned with the behaviour of economic operators. A common question that arises in assessing the conduct of economic operators is whether several distinct legal entities can constitute a single economic entity ( SEE ) for competition law purposes. This article seeks to: (i) explain the SEE doctrine under competition law; (ii) address common questions and misconceptions regarding the doctrine; and (iii) highlight the implications for businesses. Introduction The Competition Act (Cap 50B) ( Competition Act ) was enacted in Singapore with the objective of promoting the efficient functioning of the markets in Singapore and enhancing the competitiveness of the economy through prohibiting anti-competitive activities that unduly prevent, restrict or distort competition. 1 There are three main prohibitions under the Competition Act: 1. Agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within Singapore ( s 34 prohibition ); 2. Conduct on the part of one or more undertakings which amounts to an abuse of a dominant position in any market in Singapore ( s 47 prohibition ); and 3. Mergers that have resulted or may be expected to result in a substantial lessening of competition within any market in Singapore ( s 54 prohibition ). As reflected above, the three main prohibitions of the Competition Act apply to undertakings. The concept of an undertaking is central to determining whether any of the prohibitions under the Competition Act may have been infringed by an economic operator. The term undertaking is defined under s 2(1) of the Competition Act. It refers to any person, being an individual, a body corporate, an unincorporated body of persons or any other entity, capable of carrying on commercial or economic activities relating to

goods or services. 2 The focus of an enquiry of what is an undertaking is on the nature of the activity carried out by the entity, ie, a functional approach. To date, the Competition Commission of Singapore ( CCS ) has made findings of infringement against sole proprietorships, 3 partnerships, 4 companies, 5 groups of companies, 6 and trade or professional associations. 7 This functional, rather than formalistic, approach in identifying the entity to which liability is attributed under competition law makes it possible for two or more separate legal entities to be found to form a single economic unit. While the SEE concept means different things in different contexts, 8 for the purposes of competition law, it means that several different economic operators can be considered to be one undertaking. The mischief at which the s 34 prohibition is aimed is the prevention, restriction or distortion of competition arising from conduct between undertakings that would ordinarily have had pursued an economic aim that is separate from that of its competitors (and would thereby have been in competition with each other), which would not be the case for operators within an SEE. This approach has been adopted in many competition regimes, including the United Kingdom ( UK ), the European Union ( EU ) and the United States of America ( US ). Importantly, it has implications on the attribution of liability to the entities of an SEE and on the amount of financial penalties imposed on an economic operator, in the event of an infringement of competition law. This is discussed further below. The SEE Doctrine In seeking to understand the parameters of application of the SEE doctrine, it is useful to look to the objectives that are sought to be achieved by the rules against anticompetitive conduct. It is the aim of competition law to ensure that markets are, and remain, competitive by protecting the competitive process. 9 Such a competitive process assumes and demands independent decision-making. The s 34 prohibition is modelled after the Chapter 1 prohibition of the UK Competition Act 1998 and Article 101 of the Treaty of Functioning of the European Union ( TFEU ) (formerly Article 81 of the European Community Treaty). As such, cases from these jurisdictions may be persuasive or useful in assessing conduct under the Competition Act. 10 The Competition Appeal Board ( CAB ) in Singapore has also stated that decisions of the EU/UK Courts on competition law were highly persuasive 11 and has, in previous cases, relied on foreign EU and UK case law in coming to its decisions. EU and UK competition law principles have, in turn, become part of the competition jurisprudence in Singapore. Taking reference from EU jurisprudence, it has been stated that anti-competitive conduct leads to conditions of competition which do not correspond to the normal conditions of the market. 12 In this respect, the courts in the EU have stressed the importance that: each economic operator must determine independently the policy which he intends to adopt on the common market including the choice of the persons and undertakings to which he makes offers or sells. 13

It has been stated that the recognition of companies or corporations as separate legal entities from their shareholders is for legal and business convenience: It is a creation of law convenient for the purposes of management, of the holding of property, of the association of individuals in business transactions 17 The separate legal entity doctrine has been expressed in the House of Lords decision in Salomon v Salomon & Co Ltd: Where two or more economic operators knowingly substitute the risks of competition with co-operation between them, such economic operators may be found to have infringed the s 34 prohibition. In the EU and in Singapore, the term undertaking is used to refer to such economic operators. The CAB in the Express Bus Operators Appeal No 3 14 applied case law from the EU, which emphasises that the term undertaking must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question, even if in law, that economic unit consists of several persons, natural or legal. 15 Against this backdrop, the CAB explains the SEE doctrine in the Express Bus Operators Appeal No 3: It is generally accepted that a single economic entity is a single undertaking between entities which form a single economic unit. In particular, an agreement between a parent and its subsidiary company, or between two companies which are under the control of a third company, will not be agreements between undertakings if the subsidiary has no real freedom to determine its course of action in the market and although having a separate legal personality, enjoys no economic independence. Ultimately, whether or not the entities form a single economic unit will depend on the facts and circumstances of the case. 16 SEE Doctrine vs Concept of Separate Legal Personality in Company Law Whereas the SEE doctrine is a fundamental concept of competition law, the separate legal entity doctrine is a cornerstone of company law in Singapore. The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the [Companies] Act. 18 Provided the formalities for establishing a company or corporation are complied with, the company or corporation will be deemed validly incorporated and courts will be slow to pierce the corporate veil to hold a shareholder of that company or corporation liable for the actions (eg, debts) of the company or corporation. However, for a competition law assessment, if every entity that has a separate legal personality is also viewed as a separate economic entity, one implication for corporate groups comprised of several legal entities or subsidiaries is that they will inadvertently fall foul of competition rules, as agreements made between a subsidiary company and its parent company or between subsidiaries may prevent, restrict or distort competition within a market in Singapore. This would be antithetical to the objective of competition law which is to promote the efficient functioning of markets. The SEE doctrine mitigates this risk. In the absence of the SEE doctrine, there is a risk that competition rules may have overreaching and unintended consequences on the efficient functioning of markets. The divergence between company and competition law was also noted by the Singapore High Court in Manuchar Steel which quoted with approval the following passage: Only in exceptional cases, in particular in competition law, have tribunals or law courts accepted a concept of a single economic entity, which allows discounting of the separate legal existences of the shareholder and

the company, mostly, to allow the joining of a parent of a subsidiary to an arbitration. Also a company group theory is not generally accepted in international arbitration (although promoted by prominent authorities) and there are no precedents of which this Tribunal is aware for its general acceptance. 19 While several entities, each having a separate legal personality, can constitute a single economic entity for competition law purposes, whether in fact entities are an SEE depends on the facts and context of the case. Competition law seeks to take into account such economic realities through the SEE doctrine and its functional approach towards what constitutes an undertaking. When do Entities Form an SEE? The CCS Guidelines on the Section 34 Prohibition states that whether or not entities form a single economic unit will depend on the facts and circumstances of each case. 20 The key question is whether a person or persons constitute a single economic unit having regard to the economic, organisational and legal links between them. Parent and its subsidiary company/related companies A parent and its subsidiary company, or two companies which are under the control of a third company, will be considered an SEE if the subsidiary (or subsidiaries) has (have) no real freedom to determine its course of action in the market and, although having a separate legal personality, enjoys no economic independence. 21 Whether or not the entities form an SEE will depend on the facts and circumstances of the case. 22 Some of the factors that may be considered in assessing whether a subsidiary is independent of or forms part of the same economic unit with its parent include: 1. the parent s shareholding in the subsidiary; 2. whether or not the parent has control of the board of directors of the subsidiary; and 3. whether the subsidiary complies with the directions of the parent on sales and marketing activities and investment matters. 23 There is a rebuttable presumption under EU competition law that, where a parent company has a 100% shareholding in a subsidiary, whether held directly or indirectly, that the parent and subsidiary are a single economic unit. 24 It is for the parent company to put before the court any evidence relating to the economic and legal organisational links between its subsidiary and itself which in its view are apt to demonstrate that they do not constitute an SEE. 25 In Akzo Nobel, the EC 26 found that the parent company, Akzo Nobel NV, served as the corporate centre of the Akzo Nobel group of companies, and as admitted by Akzo Nobel NV itself, the entity coordinates the main activities with regard to the general strategy of the group, finances, legal affairs and human resources. 27 The EC considered that, through those functions, Akzo Nobel NV was able to exercise decisive influence over the commercial policy of the three subsidiaries in which it held, directly or indirectly, all the shares. As such, the EC found that Akzo Nobel NV formed an economic unit with those subsidiaries and this was upheld by the ECJ on appeal. An SEE can also exist where the majority shareholding falls short of 100%. For example, in the Freight Forwarding Decision, 28 CCS found that each of the 11 freight forwarders and their Singapore subsidiaries or related companies constituted an SEE; the parent companies owned between 51% to 100% of the shares of their respective Singapore subsidiaries. In addition to the parent s shareholding in the subsidiary, CCS also took into account the following factors in making its finding of SEE: 1. the parent, Singapore subsidiary and related company represented itself as a single economic unit to customers; 2. the Singaporean subsidiary fixed its fees with reference to the parent s instruction or implemented fees set by the parent or related company; 3. the relevant fees and surcharges were collected by the subsidiary on behalf of the parent or related company; 4. employees were moved between the parent and subsidiary, suggesting that the parent and subsidiary operated and were regarded internally as part of an SEE; and 5. the entities (and their employees) worked and communicated with each other on a regular basis. 29 In the Sistic Decision, 30 however, CCS found that SISTIC. com Pte Ltd ( Sistic ) was not an SEE with Singapore Sports Council ( SSC ) and/or The Esplanade Co Ltd ( TECL ) although SSC and TECL owned 65% and 35% of Sistic s shareholding respectively. In making this finding, CCS took into account the following:

1. Sistic was intended to operate as an independent commercial entity without interference from its shareholders; 2. Sistic s Board of Directors comprised seven directors, out of which four were independent; 3. Sistic dealt at arm s length with SSC and TECL and did not simply carry out the instructions of its shareholders; and 4. Sistic did not receive financial and operational support from SSC and TECL beyond that to be expected in normal commercial relationships. 31 Therefore, the assessment of whether two companies constitute an SEE would depend on all factors related to the economic, legal and organisational links between them, as well as their operational behaviour and interaction. Principals and their agents Undertakings in a principal-agent relationship may also be considered a single economic unit, if the agent has lost its character as an independent trader such that it may be treated as an auxiliary organ forming an integral part of the principal s undertaking. 32 An agent may not be regarded as an auxiliary body forming part of its principal s business where the agreement entered into with the principal confers upon the agent or allows it to perform duties which, from an economic point of view, are approximately the same as those carried out by an independent dealer, because they provide for the said agent accepting the financial risks of selling or of the performance of the contracts entered into with third-parties. 33 In the Express Bus Operators Appeal No 3, the CAB accepted the parties arguments that they formed a single economic unit by reason of their agency relationship as well as other factors, including that they shared the same general manager, the same registered address and business premises and their employees were interchangeable in the sense that they worked for both companies. 34 Implications of the SEE Doctrine No Anti-competitive Agreement within an SEE The most obvious implication of the SEE doctrine is that agreements between entities that form a single economic unit cannot be considered an agreement between undertakings (because such entities form the same undertaking) and such agreements will not be caught by the s 34 prohibition and its equivalent in other jurisdictions. 35 In Viho, 36 a complaint was made to the EC that the distribution agreements that Parker Pen Ltd ( Parker ) entered into with its wholly-owned subsidiaries required the said subsidiaries to restrict the distribution of Parker products to their allocated territories and had the effect of prohibiting the export of Parker products by its distributors, dividing the market and maintaining artificially inflated prices. The EC (whose decision was upheld by the ECJ on appeal) found that Parker and its subsidiaries formed an SEE within which the subsidiaries did not enjoy real autonomy in determining their course of action in the market, but carried out the instructions issued to them by the parent company controlling them. The parent company directed the sales and marketing activities and controlled key decisions (eg, sales targets, products to be sold and prices) of the subsidiaries. As a consequence of the finding of SEE, the EC and ECJ held that the agreements would not fall within the ambit of Article 101 (then Article 81) of the TFEU. 37 Attribution of Liability and Imposition of Financial Penalties of a Group of Companies While agreements between entities that form an SEE will not be caught by the s 34 prohibition and its equivalent in other jurisdictions, an agreement between an SEE and other undertakings will still be caught. Likewise, an SEE will be subject to the s 47 prohibition and s 54 prohibition like any other undertaking. Where economic operators engaged in infringing conduct form an SEE, liability may be attributed to the SEE. A parent company may also be held liable even if it did not participate in the anti-competitive conduct carried out by its subsidiary.

For example, where a parent exercises decisive influence over its subsidiary which participated in a cartel, the parent and subsidiary can be held jointly and severally liable for the anti-competitive conduct. 38 Attributing liability to a parent company and/or related company has potentially significant consequences, including the following: 1. The applicable maximum financial penalty cap would apply to the aggregate sales of the group constituting the undertaking, so the parent and the subsidiaries may be jointly and severally liable for fines significantly higher than the limit that would apply to them as an individual company; 39 2. The risk of finding recidivism which may lead to an uplift in the financial penalty increases because any previous cartel behaviour of other companies in the group may be taken into consideration; 40 3. If reference is taken to the total group turnover, it may be more likely that a deterrence uplift may be applied in calculating the financial penalties; 41 and 4. It may enable and/or facilitate follow-on actions against each entity in the group of companies found to be a single undertaking. 42 Where an undertaking has not decided independently upon its own conduct on the market but carried out, in all material respects, the instructions given to it by another undertaking having regard to the economic and legal links between them (eg, its parent company), attributing liability to the latter through the application of the SEE doctrine ensures that it is held accountable for the infringement, and, in such a case that the genuine decision-maker is deterred from anticompetitive activities in the future. Even in cases where the parent may have no direct knowledge of the relevant infringement engaged in by its subsidiary, parental liability is consistent with the principle of personal responsibility and effective enforcement. The CCS Guidelines on Enforcement state that CCS may need to consider the respective responsibilities of both parent and subsidiary for an infringement and therefore for consequent liability to pay a penalty and where CCS decides to impose a penalty on both parent and subsidiary, it may be imposed jointly and severally. 43 In the Ball Bearings Decision, CCS found four Japanese bearings manufacturers and their Singapore subsidiaries to be jointly and severally liable for the infringement after finding, inter alia, that the parent companies which were involved in cartel meetings in Japan had exercised decisive influence over the commercial policy of the Singapore subsidiary companies, in particular, in the execution of the relevant anti-competitive agreement at issue. 44 Likewise, in the Freight Forwarding Decision (discussed above), the 11 freight forwarders and their Singapore subsidiaries and related companies were found to be jointly and severally liable for the infringement of the s 34 prohibition by collectively fixing certain fees and surcharges, and exchanging price and customer information in relation to the provision of air freight forwarding services for shipments from Japan to Singapore. 45 Market Share Thresholds in Assessing Potential Infringement of the Section 47 and 54 Prohibitions Market share is a relevant consideration in assessing potential infringements of the s 47 and s 54 prohibitions. In assessing potential abuse of a dominant position in relation to an alleged infringement of the s 47 prohibition, the CCS Guidelines on the Section 47 Prohibition provides that as a starting point, CCS will consider a market share above 60% as likely to indicate that an undertaking is dominant in the relevant market. 46 Likewise, the CCS Guidelines on the Substantive Assessment of Mergers states that CCS is generally of the view that competition concerns are unlikely to arise in a merger situation unless the merged entity will have a market share of 40% or more; or a market share of between 20% and 40% and the post-merger CR3 47 is 70% or more. 48 A finding of SEE could mean a higher market share of the alleged dominant undertaking or the merging entities and could move the scale towards a finding of dominance or market power, potentially leading to a less favourable assessment for the parties. For example, in the merger between Holcim Ltd ( Holcim ) and Lafarge SA ( Lafarge ) notified to CCS on 11 July 2014, Lafarge, through its subsidiary Supermix Concrete Pte Ltd was party to a tripartite equal shareholding joint venture named Alliance Concrete. Recognising the possibility that Alliance Concrete and Lafarge formed an SEE, CCS took the market shares of Alliance Concrete as that of Lafarge as a whole, notwithstanding the fact that Lafarge has only a 33% shareholding in Alliance Concrete, in assessing the notified merger. CCS found in that case that even including the market shares of Alliance Concrete, the market shares of the merged entity and the CR3 post-merger do not cross the indicative thresholds set out in the CCS Guidelines on the Substantive Assessment of Mergers. 49

Concluding Remarks The SEE doctrine has been consistently applied by competition authorities and the judiciary both in Singapore and overseas. Although the application has been challenged by parties in some cases and occasionally criticised, the SEE doctrine serves a unique function in ensuring that competition law interventions are based on economic realities, to advance the objectives of competition law. In advising on whether an SEE exists, common factors to consider would include shareholding, the control of the board of directors, how key strategic or commercial decisions are made, whether the entities represent themselves and operate as a single economic unit and who bears the financial risks of the commercial activities undertaken. In view of the potential finding of group liability and increased financial penalties, businesses should consider implementing effective compliance programmes within the entire group and ensure that each subsidiary is aware of competition law and is able to avoid engaging in potentially infringing activities. Ethel Lin Assistant Director, Enforcement Division Competition Commission of Singapore E-mail: Ethel_LIN@ccs.gov.sg 6 See, for example, Re CCS Imposes Penalties on Ball Bearings Manufacturers involved in International Cartel [2014] SGCCS 5 ( Ball Bearings Decision ). 7 See, for example, Re Singapore Medical Association Guidelines on Fees [2010] SGCCS 6. 8 Manuchar Steel Hong Kong Limited v Star Pacific Line Pte. Ltd. [2014] SGHC 181 ( Manuchar Steel ), paragraph 25. 9 <https://www.ccs.gov.sg/about-ccs/what-we-do/ccs-competition-philosophy>. 10 In Re Certain Pest Control Operators in Singapore [2008] SGCCS 1, CCS, noting that competition law is a new area of law in Singapore, stated that cases from the UK and the EU may be persuasive or useful in assisting CCS in reaching its decision. However, CCS emphasised that the value of any foreign competition cases will depend very much on the overall context and the extent to which the facts of such cases are applicable to the local context and the facts of the case at hand. 11 SISTIC.com Pte Ltd v CCS Appeal No 1 of 2010, paragraph 287; Pang s Motor Trading v CCS Appeal No 4 of 2013, paragraph 33. 12 Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26 ( Suiker Unie ). See, also, the United States Supreme Court s judgment in Copperweld Corp v Independent Tube Corp, 467 US 752 (1984), pages 768 to 771. 13 Suiker Unie, paragraph 173. 14 Price Fixing in Bus Services from Singapore to Malaysia and Southern Thailand: Transtar Travel Pte Ltd and Regent Star Travel Pte Ltd [2011] SGCAB 2 ( Express Bus Operators Appeal No 3 ). 15 Express Bus Operators Appeal No 3, paragraph 67. See, also, Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, paragraph 40. 16 Express Bus Operators Appeal No 3, paragraph 67. 17 Daimler Co Ltd. v Continental Tyre & Rubber Co (Great Britain) Ltd [1916] 2 AC 307, page 329. 18 [1897] 1 AC 22, page 51. Joanne Yong Assistant Director, Enforcement Division Competition Commission of Singapore E-mail: Joanne_YONG@ccs.gov.sg 19 Manuchar Steel, paragraph 135. 20 CCS Guidelines on the Section 34 Prohibition, paragraph 2.8. 21 CCS Guidelines on the Section 34 Prohibition, paragraph 2.7; Express Bus Operators Appeal No 3, paragraph 67. See also, eg, Viho; Case 22/71 Béguelin Import v GL Import- Export [1971] ECR 949; Case 15/74 Centrafarm BV and Adnaan De Peijper v Sterling Drug Inc [1974] ECR 1183. Disclaimer This article is written by the authors in their personal capacity. The information, views and opinions contained in this article are authors own, and nothing in this article shall represent the official position of the Competition Commission of Singapore or the Singapore Government. Notes 1 Second reading speech for the Competition Bill by the then Senior Minister of State for Trade and Industry (Dr. Vivian Balakrishnan). 2 As set out in paragraph 1.1 of the CCS Guidelines on the Major Provisions, this includes individuals operating as sole proprietorships, companies, firms, businesses, partnerships, co-operatives, societies, business chambers, trade associations and non profit-making organisations. 3 See, for example, Re Price fixing of monthly salaries of new Indonesian Foreign Domestic Workers by Employment Agencies [2011] SGCCS 4. 4 Ibid. 5 See, for example, Re Certain Pest Control Operators in Singapore [2008] SGCCS 1. 22 Express Bus Operators Appeal No 3, paragraph 67. 23 CCS Guidelines on the Section 34 Prohibition, paragraph 2.8. 24 Case C-97/08 Akzo Nobel NV v Commission [2009] ECR I-08237 ( Akzo Nobel ), paragraph 60. 25 Akzo Nobel, paragraph 65. 26 The EC s findings were upheld by the ECJ on appeal. 27 Commission Decision of 9 December 2004 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No C.37.533 Choline Chloride), OJ L 190, 22/7/2005, pp 22 26, paragraph 172. 28 Notice of Infringement Decision issued by CCS in relation to the Infringement of the Section 34 Prohibition in relation to the provision of air freight forwarding services for shipments from Japan to Singapore dated 11 December 2014 ( Freight Forwarding Decision ). 29 Ball Bearings Decision, paragraphs 357 to 371 and Freight Forwarding Decision, paragraphs 527 to 627. 30 Re Abuse of a Dominant Position by SISTIC.com Pte Ltd [2010] SGCCS 3 ( Sistic Decision ).

31 Sistic Decision, paragraphs 4.3.1 to 4.5.7. 32 Suiker Unie, paragraph 480. 33 Suiker Unie, paragraph 482. 34 Express Bus Operators Appeal No 3, paragraphs 68 and 69. 35 CCS Guidelines on the Section 34 Prohibition, paragraph 2.7. 36 Case C-73/95 P Viho Europe BV v Commission [1996] ECR I-5457 ( Viho ). 37 Viho, paragraphs 13 to 18. 38 See, for example, Suiker Unie, paragraph 43. 39 For example, pursuant to s 69(2)(d) of the Competition Act, CCS may, where it has made a decision that an agreement has infringed the s 34 prohibition, impose on any party to that infringing agreement a financial penalty not exceeding 10% of the turnover of the business of such party in Singapore for each year of infringement, up to a maximum of three years. A number of other jurisdictions also provide for similar caps on the financial penalty that can be imposed. 40 As set out in paragraphs 2.10 and 2.11 of the CCS Guidelines on the Appropriate Amount of Penalty, repeated infringements by the same undertaking or other undertakings in the same group may be considered an aggravating penalty in assessing the amount of financial penalty to be imposed. This is consistent with methodologies adopted by jurisdictions such as the EU and UK. 41 As set out in paragraph 2.1 of the CCS Guidelines on the Appropriate Amount of Penalty, deterrent value is a factor considered in calculating the amount of financial penalty to be imposed. In Makers UK Limited v OFT, the UK Competition Appeal Tribunal ( CAT ) approved the approach taken by the Office of Fair Trading ( OFT ) to increase the penalty by 520,000 to act as an effective deterrent to Makers and to other undertakings that might consider engaging in collusive tendering. The OFT explained that it had arrived at the uplift based on the assessment of a minimum deterrence threshold ( MDT ) which depended on comparing the undertaking s turnover in the relevant market with the undertaking s total turnover. Applying this in Re CCS Imposes Penalties on 12 Motor Vehicle Traders for Engaging in Bid-Rigging Activities at Public Auctions [2013] SGCCS 6, CCS applied an uplift to the financial penalties of undertakings if the financial penalties would otherwise fall under the determined MDT. 42 Competition regimes often provide for the civil rights of action for those who suffer loss or damage from an infringement of competition law. In Singapore, s 86 of the Competition Act provides for the right of action for relief in civil proceedings for any person who suffers loss or damage directly as a result of an infringement of the s 34 prohibition, the s 47 prohibition or the s 54 prohibition and such a litigant is able to rely on CCS s infringement decision to establish that the prohibition in question has been infringed. 43 CCS Guidelines on the Section 34 Prohibition, paragraph 4.23. 44 Ball Bearings Decision, paragraph 369. 45 Freight Forwarding Decision, paragraph 525. 46 CCS Guidelines on the Section 47 Prohibition, paragraph 3.8. 47 CR3 refers to the combined market share of the three largest firms. 48 CCS Guidelines on the Substantive Assessment of Mergers, paragraph 5.15. 49 Grounds of Decision issued by the Competition Commission of Singapore In relation to the notification for decision of the proposed merger between Holcim Ltd. and Lafarge SA pursuant to s 57 of the Competition Act dated 22 August 2014, paragraphs 12 to 14.