Competition and Consumer Commission of Singapore v CNL Logistic Solutions Pte Ltd & Anor

Facts

CNL Logistic Solutions Pte Ltd (CNL) and Gilmon Transportation & Warehousing Pte Ltd (Gilmon) ran warehouses at Keppel Distripark, a free trade zone with about 26 warehouse operators. On 15 June 2017 the largest operator, Hup Soon Cheong Pte Ltd, announced a new free trade zone levy on stored import cargo (the FTZ Surcharge), and its sister company followed the same day. That evening and the next morning, staff of Gilmon, CNL, Penanshin and Mac-Nels exchanged calls and WhatsApp messages about whether they would also impose the surcharge. Penanshin's manager told the others that Mac-Nels and Penanshin would follow, and CNL's and Gilmon's representatives replied with thanks. The four operators together held about 16.09% of the market, and CNL and Gilmon about 5.75%.

The Competition and Consumer Commission of Singapore (CCS) issued an infringement decision in November 2022 finding a breach of s 34 of the Competition Act 2004. The Competition Appeal Board (CAB) allowed the operators' appeal. It found that an alleged meeting had not been proved and that there was no agreement, and although the exchanges amounted to a concerted practice, it held that the CCS had not shown a restriction of competition by object, chiefly because it had not adequately examined the economic context. The CCS appealed to the High Court in Tribunal Appeal No 9 of 2025, the first appeal to that court under the Act.

Issues

1. Whether the appeal raised a question of law within the High Court's limited jurisdiction under s 74 of the Competition Act.
2. Whether the CAB correctly found that the exchanges formed a concerted practice.
3. What a restriction of competition by object is, and what role the economic context plays in identifying one.
4. Whether the CAB was wrong to hold that the exchanges were not a by object restriction and that the CCS had not considered the economic context sufficiently.

Holding

Philip Jeyaretnam J allowed the appeal against the CAB's decision, set it aside and restored the CCS's finding that CNL and Gilmon had infringed s 34 of the Competition Act. The parties were given time to seek consequential directions and to file written submissions on costs if they could not agree.

Reasoning

The judge held that the appeal raised questions of law, because the meaning of the statutory terms by object and concerted practice is a legal question, even though both sides relied on the same leading authority. The court could not revisit the CAB's findings of fact.

On concerted practice, the CAB had directed itself correctly. Mere contact is not enough; the information and the way it is shared must reduce uncertainty between competitors and involve some reciprocity, and parties who stay in the market are presumed, subject to rebuttal, to have taken the information into account. Here the operators had in fact used what they learned to persuade customers to accept the surcharge, so the CAB's finding stood. The judge added that there is no need to label conduct strictly as either an agreement or a concerted practice.

After surveying European and English case law, including Cartes Bancaires, the judge held that a by object restriction is conduct with a manifest anti-competitive economic rationale, assessed objectively: in effect, whether the conduct can only be explained as aimed at preventing, restricting or distorting competition. The by object and by effect limbs are distinct inquiries, the category is to be read narrowly, and subjective intention is relevant but not decisive. A test based on mere potential to harm competition was rejected. The economic context must be given sufficient examination, but this is a qualitative standard with no fixed depth; it is distinct from an effects analysis. Market share and market power may be relevant, though rarely decisive.

Applying this, exchanges of price-related information have long been treated as by object restrictions, including in Singapore. The exchanges here served no purpose other than learning in advance whether rivals would match the price rise, which removed uncertainty about the timing and extent of price changes. Whether the surcharge was justified by costs did not matter. The CCS's decision had identified the key context: a price-sensitive market for a homogeneous service, small operators unable to raise prices alone, uncertainty after the first announcements, and the exchanges making the rise easier to impose. That was enough, even if the analysis was scattered across the decision. The operators' lack of market power did not help them, because the exchanges helped them overcome that very weakness.

From the judgment