Gas2Liquids (Pty) Ltd v Competition Commission and Others (13607) [2013] ZACT 3; [2013] 1 CPLR 330 (CT) (23 January 2013)

Gas2Liquids (Pty) Ltd v Competition Commission and Others (13607) [2013] ZACT 3; [2013] 1 CPLR 330 (CT) (23 January 2013)

The Tribunal found that the Commission had properly applied the statutory requirements for granting an exemption under section 10(3)(b)(iv) of the Competition Act. The Commission determined that the agreements and practices contributed to the economic stability of the petroleum industry by ensuring supply continuity, and that the restrictions imposed were necessary for this objective. The Tribunal rejected Gas2Liquids' arguments that the Commission failed to investigate alternatives or exclusionary effects, noting that the exemption's terms were inclusive and permissive, and that physical supply constraints, not the exemption, limited access for smaller firms. The Tribunal also held that...

Citation
[2013] ZACT 3
Parties
Applicant: Gas2Liquids (Pty) Ltd; Respondent: The Competition Commission; Respondent: The South African Petroleum Industry Association; Respondent: BP Southern Africa (Pty) Ltd; Respondent: Chevron South Africa (Pty) Ltd; Respondent: Engen Petroleum Ltd; Respondent: Sasol Group Services (Pty) Ltd; Respondent: Shell South Africa Marketing (Pty) Ltd; Respondent: Shell South Africa Refining (Pty) Ltd; Respondent: Total South Africa (Pty) Ltd; Respondent: The Petroleum and Gas Corporation of SA (Pty) Ltd t/a Petrosa; Respondent: Easigas (Pty) Ltd; Respondent: Shell & BP South African Petroleum Refineries (Pty) Ltd; Respondent: Sasol Synfuels; Respondent: The National Petroleum Refineries of SA (Pty) Ltd; Respondent: Natcos, a joint venture between Sasol Ltd and Total SA (Pty) Ltd; Respondent: The Minister of Trade and Industry
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
23 January 2013
Case Number
013607
Procedural Posture
Review Application / Appeal Against Exemption Decision Under Section 10(8) of the Competition Act
Outcome
Appeal dismissed. The applicant is liable for the costs of the second to fifteenth respondents, including the costs of two counsel.
Judges
N Manoim, Y Carrim, L Reyburn
Legal Topics
Exemption Application, Information Sharing, Access to Infrastructure, Economic Stability, Restrictive Practices
Competition Law Exemption Application Information Sharing Access to Infrastructure Economic Stability Restrictive Practices

Case Brief

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Parties

Gas2Liquids (Pty) Ltd

Applicant

The Competition Commission

Respondent

The South African Petroleum Industry Association

Respondent

BP Southern Africa (Pty) Ltd

Respondent

Chevron South Africa (Pty) Ltd

Respondent

Engen Petroleum Ltd

Respondent

Sasol Group Services (Pty) Ltd

Respondent

Shell South Africa Marketing (Pty) Ltd

Respondent

Shell South Africa Refining (Pty) Ltd

Respondent

Total South Africa (Pty) Ltd

Respondent

The Petroleum and Gas Corporation of SA (Pty) Ltd t/a Petrosa

Respondent

Easigas (Pty) Ltd

Respondent

Shell & BP South African Petroleum Refineries (Pty) Ltd

Respondent

Sasol Synfuels

Respondent

The National Petroleum Refineries of SA (Pty) Ltd

Respondent

Natcos, a joint venture between Sasol Ltd and Total SA (Pty) Ltd

Respondent

The Minister of Trade and Industry

Respondent

Procedural Posture

Review Application / Appeal Against Exemption Decision Under Section 10(8) of the Competition Act

Legal Issues

  1. 1 Whether the exemption granted by the Competition Commission to SAPIA and its members under section 10(3)(b)(iv) of the Competition Act was justified.
  2. 2 Whether the restrictive practices covered by the exemption were required to achieve economic stability in the petroleum industry.
  3. 3 Whether the Commission properly considered the exclusionary effects of the exemption on smaller competitors and alternatives to the exemption.

Ratio Decidendi

The Tribunal found that the Commission had properly applied the statutory requirements for granting an exemption under section 10(3)(b)(iv) of the Competition Act. The Commission determined that the agreements and practices contributed to the economic stability of the petroleum industry by ensuring supply continuity, and that the restrictions imposed were necessary for this objective. The Tribunal rejected Gas2Liquids' arguments that the Commission failed to investigate alternatives or exclusionary effects, noting that the exemption's terms were inclusive and permissive, and that physical supply constraints, not the exemption, limited access for smaller firms. The Tribunal also held that...

Court Disposition

Appeal dismissed. The applicant is liable for the costs of the second to fifteenth respondents, including the costs of two counsel.

Orders

  • The appeal is dismissed.
  • The applicant is ordered to pay the costs of the second to fifteenth respondents, including the costs of two counsel.