Abuse of position may result in: Osler’s public consultation submission to the Bureau is available here [PDF]. The not-so-safe harbour. These Guidelines may be revised should the need arises. We are also of the view that the meaning of “plausible competitive interest” requires further clarity. The Act seeks to prohibit abuse of dominant position and also creates a Competition Commission of India entrusted with the obligation of preventing practices that have an appreciable adverse effect on the competition. 54. The Guidelines helpfully acknowledge that ordinary course refusals to supply would only engage section 79 in exceptional circumstances. These Guidelines clearly explain the Commission’s approach in dealing with abuse of dominance in the markets. A dominant company is entitled to compete on the merits as any other company. Likewise, the Guidelines on Abuse of Dominance deals with the application of Article 18 of the Regulations and it was prepared with the aim to provide clarity, predictability and transparency as regards the general analytical framework employed by the Commission in determining cases of abuse of dominance. A firm’s ability to raise its prices is usually constrained by competitors and the possibility that its customers can switch to alternative sources of supply. 7 GUIDELINES ON CHAPTER 2 PROHIBITION. In an effort to mitigate concerns about an increasing willingness to mandate data access remedies, the Guidelines state explicitly that “the Bureau is aware that competitively significant inputs are often the result of significant and costly investment and innovation, and forcing firms to supply may undermine incentives for firms to develop new and beneficial products and services.”[5] This is consistent with the finding of the Bureau in its Big data and innovation: key themes for competition policy in Canada study where it states: No formulaic approach identifies the appropriate remedy in any particular merger or conduct case. contrasting the current policies of enforcement agencies based on their experience, guidelines and governing statutes, and by taking into account the scholarly literature that exists on the subject. dominance. The Guidelines state that in some cases a person is dominant in a market different from the market where anti-competitive effects are alleged to arise. They supersede all previous guidelines and statements of the Commissioner or other Bureau officials regarding the administration and enforcement of the Act’s abuse of dominance provisions. M3 - Article . 2 ibid. Ref: OFT402 PDF, 149KB, 24 pages. EP - 77. As a result, when assessing joint dominance, the Bureau may accord significant weight to how vigorously the allegedly jointly dominant firms compete with each other. The Commission began in 2005 a reflection on the policy underlying Article 102 TFEU (then Article 82 EC) and the way in which it should enforce that policy. Notably, the Guidelines state that “in the absence of contemporaneous evidence that the asserted business justification rationally motivated the allegedly dominant firm, the Bureau will be less likely to conclude that the business justification is credible.”, Where evidence supports that a firm’s conduct was motivated by both an anti-competitive purpose and a claimed business justification, the Bureau may consider whether the claimed business justification could have been achieved by credible alternate means that would have had a lesser impact on competitors. Let us help you stay up to date. [6] Guidelines at para. (9) As to the relationship between the degree of dominance and the finding of abuse, see Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge Transports, Compagnie Maritime Belge and Dafra-Lines v Commission [2000] ECR I-1365, paragraph 119; Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, paragraph 186. Abuse of Dominance. TY - JOUR. Situations involving abuse of dominance applied it is necessary to define … Prior to the adoption of the guidelines, the review process included a consultation on a Commission Staff Discussion Paper (read press release and comments received), followed by a public hearing in 2006. For example, the Guidelines offer no indication as to what, if anything, would constitute a plausible competitive interest that could result in an abuse of dominance concern where a business operates upstream or downstream from the relevant market. On March 7, 2019, the Competition Bureau (Bureau) published new Abuse of Dominance Enforcement Guidelines (2019 Guidelines). M3 - Article . TY - JOUR. A Principled Approach to Abuse of Dominance in European Competition Law. $68.00 ( ) USD. The decisions of the Commissioner and the ultimate resolution of issues will depend on the particular circumstances of the matter in question. The Guidelines The Prohibition under Section 53 of the Act 2.1 Section 53 of the Act prohibits an enterprise from engaging in any conduct which amounts to an abuse of dominant position in any aviation service market. Abuse of Dominance (Article 102 TFEU) Eirik Østerud eiros@bahr.no . Due to the lack of recurring precedents regarding the different types of abuse of dominance, there is little concrete guidance on what qualifies a unilateral practice as an abuse. We commend the Bureau’s continuing efforts to engage with stakeholders through meaningful consultations and to give meaningful guidance. We have built our reputation on our commitment to our clients' success and the experience, expertise and collaborative approach for which we are recognized. These guidelines supersede the Bureau’s previous guidelines (2012 Guidelines) on sections 78 and 79 of the Competition Act (Act) and set out the Bureau’s approach to these sections of the Act. Our clients include industry and business leaders in all segments of the market and at various stages in the growth of their businesses. The Bureau is mindful that mandating a duty to deal can potentially chill incentives to innovate and should therefore be pursued only in exceptional circumstances in big data cases as in non-big data cases. The Commissioner alleges that VAA abused its dominant market position by excluding potential competitors for the provision of in-flight catering at the Vancouver International Airport. In accordance with the case-law, it is not in itself illegal for an undertaking to be in a dominant position and such a dominant undertaking is entitled to compete on the merits. A quick look at the key legal and regulatory provisions governing abuse of dominance in USA, including the types of conduct that constitute abuse and available defences. A footnote explains that an abuse of dominance does not occur if the two markets are “wholly unrelated” but that “where there Such cases may also deserve attention on the part of the Commission. The guidelines, drafted under the basic system of China's anti-monopoly law, consists of six chapters with 24 articles. These provisions of the Act have not been subject to judicial interpretation, and the CAK has not published its decisions in sufficient detail to create a body of case law that would give market participants significant guidance on the interpretation of the relevant … 2 These guidelines are not a substitute of the Act or any Regulations and should instead be read in conjunction with the relevant legal instruments. Such clarity may be forthcoming from  the Competition Tribunal’s decision on the Commissioner’s application for an order under section 79 against the Vancouver Airport Authority (VAA),which is expected this year.[1]. Article 82 (previously Article 86) includes that any abuse either by one or more firms that are in a position of dominance in the common market or in a substantial part of it, is strictly prohibited if it has negative repercussions on trade between Member States. The substantive test and benchmark for analysis under the Act is to prohibit practices that have an appreciable adverse effect on competition in India. d) There must be actual or potential for abuse of dominance. dominant undertaking, for example where they face serious capacity limitations. On March 7, 2019, the Competition Bureau (Bureau) published new Abuse of Dominance Enforcement Guidelines (2019 Guidelines). Research output: Contribution to journal › Article › peer-review. Most jurisdictions address the issue by prohibiting use of dominance or substantial market power, taking different approaches to terminology and the relevant threshold of market power. This file may not be suitable for users of assistive technology. SP - 59. I. The aim of these Guidelines is to provide clarity, predictability and transparency as regards the general analytical framework of the Commission in determining cases of abuse of dominance and to help undertakings better assess whether their behavior is likely to constitute an infringement of Article 18(1) of the Regulations. abuse of dominance/monopolisation cases. 15. Research output: Contribution to journal › Article › peer-review. The abuse of dominance prohibitions are set out in section 8 of the Act. ("New Guidelines") to seek comments from the public. / Noel, Michael. Further, evidence of coordinated behavior by firms in the allegedly jointly dominant group may be probative insofar as it may explain why members of the allegedly dominant group are not vigorously competing. More information on these changes. On September 20, 2012, the Competition Bureau issued new final Abuse of Dominance Guidelines (see: Competition Bureau Issues Abuse of Dominance Guidelines). The Guidelines on Abuse of Dominance clearly point out that dominance is not simply a conduct by a single enterprise, but can also include conduct of enterprises exercising significant market power together (i.e., 'collective dominance'). There are certain portions of the Guidelines that take positions which are not clearly reflected in the jurisprudence and therefore push the boundaries of the law by a considerable extent. The Bureau will examine the credibility of any efficiency or pro-competitive claims, the link to the alleged anti-competitive act, and the likelihood of these benefits being achieved. The general concept of abuse 2. Abuse of dominance is unilateral conduct using dominant market power (or a dominant position) to damage market competition and ultimately welfare. Abuse of a dominant position. Y1 - 2013. These guidelines describe the Bureau’s general approach to enforcing the abuse of dominance pro-visions (sections 78 and 79 of the Act). Recall that for the Competition Tribunal (Tribunal) to find an abuse of a dominant position pursuant to section 79 of the Act, the Commissioner must establish that: Where the Tribunal finds that the elements of section 79 have been established, it may issue a prohibition or prescriptive order to restore competition in the market. Collective Dominance in EU law (a) Provenance Article 102 TFEU, which prohibits any “abuse by one or more undertakings of a dominant position,”is so well known it does not warrant being stated in full here. The Act prohibits the abuse of a dominant position by firms in a market, but does not prohibit firms from holding a dominant position. Shuli Rodal, Michelle Lally, Kaeleigh Kuzma, Gajan Sathananthan, Jaime Auron, Peter Franklyn, Peter Glossop, On March 7, 2019, the Competition Bureau (Bureau), under the direction of newly appointed Commissioner Boswell, released updated Abuse of Dominance Enforcement Guidelines (Guidelines), available here. 978-0-521-76714-9 - A Principled Approach to Abuse of Dominance in European Competition Law Liza Lovdahl Gormsen Frontmatter More information. More information on these changes. We, as well as other stakeholders, strongly urged the Bureau to reconsider the removal of the 35% market share safe harbour threshold, below which a market participant would not generally be considered to possess market power. Forms of abusive conduct 3. The guidelines, drafted under the basic system of China's anti-monopoly law, consists of six chapters with 24 articles. In these rare circumstances, the Bureau may rely upon the abuse of dominance (and other) provisions of the Act to address specific conduct and restore the competitive process. Request an accessible format. Examples of behaviour that may amount to an abuse include: requiring that buyers purchase all units of a particular product only from the dominant company (exclusive purchasing); setting prices at a loss-making level (predation); refusing to supply input indispensable for … Recent abuse of dominance probes have focused on the pharmaceutical sector, where the CMA has open investigations into issues such as excessive pricing and allegedly unlawful rebates. In response to this concern, the Guidelines clarify that the Bureau will generally only investigate a firm with a market share below 50% for engaging in anti-competitive conduct in circumstances where other evidence indicates that the business possesses a “substantial degree of market power”[2] despite its lower market share. Accordingly, we may soon have additional Tribunal guidance to consider on these topics and possibly a further a revision to the Guidelines. The examples used within these guidelines are for illustration and do not set a limit on the investigation and enforcement activities of the Commission. It includes a summary of key changes, updates based on the Toronto Real Estate Board abuse of dominance case and shifts in the Bureau’s abuse … First, before the law can be kets. Abuse of a dominant position occurs when a dominant firm in a market, or a dominant group of firms, engages in conduct that is intended to eliminate or discipline a competitor or to deter future entry by new competitors, with the result that competition is prevented or lessened substantially. If multiple competitors in such a market each unilaterally decide to engage in similar conduct (e.g., by adopting similar restrictive contractual terms with customers), the Bureau may conclude that the competitors are jointly dominant, potentially raising concerns under section 79. 72-73 and Canada (Director of Investigation and Research) v. NutraSweet Co. (1990), 32 CPR (3d) 1 (Comp Trib) at 35. [1] The Commissioner of Competition v. Vancouver Airport Authority, CT-2016-015. Although they … In: Canadian Competition Law Review, 2013, p. 59-77. Similarly, as there is no efficiencies defence to section 79, the Guidelines confirm that the Bureau is not required to quantify any efficiencies resulting from an anti-competitive practice, “but will consider any such efficiencies within the purpose-focussed assessment of paragraph 79(1)(b).”[14]. I. The Abuse of Dominance Enforcement Guidelines do not replace the advice of legal counsel and are not intended to restate the law or to constitute a binding statement of how the Commissioner will proceed in specific matters. In these rare circumstances, the Bureau may rely upon the abuse of dominance (and other) provisions of the Act to address specific conduct and restore the competitive process. DOMINANCE AND ABUSE IN SEPARATE MARKETS 19 CAN CONDUCT THAT WOULD OTHERWISE BE AN ABUSE 20 BE JUSTIFIED? Abuse of Dominance Enforcement Guidelines. The meaning of “plausible competitive interest” remains unclear. JO - Canadian Competition Law Review. This rule implies that, for a conduct to be considered as an abuse of dominance, T1 - Abuse of Dominance Guidelines: An Economic Review. Such Accordingly, firms in relatively concentrated markets must be cognizant of engaging in unilateral conduct that could be viewed as an anti-competitive act for purposes of the Act, even if a particular firm does not on its own possess market power. In the Bureau’s view, the absence of vigorous competition (through, for example, price competition, instability of market shares over time, attempts to solicit each other’s customers, or innovation competition) could be indicative of joint dominance. 6. However, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine These guidelines have a separate chapter for each of these requirements. (3) Identifying appropriate and effective remedies and sanctions in abuse of dominance cases has generally proven to be difficult. An independently reviewed evaluation of the Office of Fair Trading’s (OFT) 2011 decision on Reckitt Benckiser’s abuse of dominance in the market. However, the Bureau does not consider such evidence as necessary to establish that a group is jointly dominant, if there is other evidence that competition among members of the allegedly dominant group is not sufficient to discipline their exercise of a substantial degree of market power.[3]. DOMINANT POSITION Dominance … A new paradigm of the role of the Commission as a regulator to the abuse of a dominant position in India is a matter of study in this article. Moreover, co-ordination between allegedly jointly dominant market participants need not be demonstrated in order to support a finding of joint dominance. The hurdle for proving abuse of dominance cases are significant, they require extensive legal and economic analysis. Parts 4 and 5 consider the definitions of dominance and abuse respectively. The 2012 Abuse of Dominance Guidelines: An Economic Review Michael D. Noel, Ph.D.1 Texas Tech University I. PY - 2013. JO - Canadian Competition Law Review. Additional challenge: lack of abuse of dominance guidelines. While we are appreciative of the Bureau providing more detailed guidance on business justifications and mitigating concerns about a potential increase in mandated access remedies in the context of alleged refusals to supply, we continue to believe that the Bureau has taken positions in certain areas which are not supported by the jurisprudence and create unnecessary uncertainty for businesses. The study leaves open exactly how such a provision might be implemented; in principle, however, it would be beneficial to give as much guidance as possible on what is allowed at the point of merger control, as breaking up a merged platform is likely to create higher costs. T1 - Abuse of Dominance Guidelines: An Economic Review. When these constraints are weak, a firm is said to have market power and if the market power is great enough, to be in a position of dominance or monopoly (the precise terminology differs according to the … The broad lines of that reflection were set out by the then Competition Commissioner Neelie Kroes. Revised Abuse of Dominance Guidelines bring welcome and noteworthy guidance on numerous issues General. One potential remedy imposes a duty to deal on an offending party in a conduct case. Such concerns are particularly heightened in the high tech and financial services sectors, where it is often argued that access to sensitive personal and confidential information may be considered essential to the ability to effectively compete. On August 29, 2019, the Japan Fair Trade Commission ("JFTC") published a draft of new "Guidelines Concerning Abuse of a Superior Bargaining Position in Transactions between Digital Platform Operators and Consumers that Provide Personal Information, etc." Osler participated in the 2018 public consultation, raising particular concerns regarding the Bureau’s removal of the 35% safe harbour threshold and the expanded application of joint dominance. The regulation of abuse of dominance is enshrined under section 4 of the Act. We commend the Bureau in having consulted broadly and injecting further clarity in the Guidelines. Outline • Day 1 - Tuesday 4 September Article 102 TFEU • Introduction • Undertaking • Dominance and the relevant market • Effect on trade between Member States • Day 2 - Friday 14 September Article 102 TFEU • The general notion of abuse • Forms of abusive conduct • Objective justification . See also Canada (Commissioner of Competition) v. Canada Pipe Co., 2006 FCA 233 at paras. In the draft guidelines, the Bureau replaced its longstanding guidance that market shares of less than 35% will generally not prompt further examination under section 79, with a general statement that market shares below 50% may prompt further investigation in certain circumstances. Remedies mandating supply can raise concerns on a number of fronts, including relating to data protection or the stifling of innovation. Y1 - 2013. The examples given in these Guidelines are for illustrative purposes only and are not exhaustive. That is to say, while a business is not obligated to supply any other business, the Bureau may conclude that a refusal to supply is anti-competitive if “the product or service being denied is both competitively significant and cannot otherwise be feasibly obtained (for example, from other suppliers or through self-supply).”[4]. Page 4 of 12 3.2 For further details on abuse, the Competition Authority has published a detailed guide on Monopolisation and Abuse of Dominance. The Guidelines outline the Bureau’s approach to business justification claims as follows: The Guidelines confirm that business justifications are relevant considerations as part of the paragraph 79(1)(b) analysis and do not directly impact the competitive effects assessment in paragraph 79(1)(c). [emphasis added], By way of background, Canadian jurisprudence has established, and the Guidelines confirm, that when determining whether an act is anti-competitive, the “purpose of an act may be established directly by evidence of subjective intent, inferred from the reasonably foreseeable consequences of the conduct, or both.”[6] As set out in the Guidelines, a business justification is not a defence to an allegation that a firm has engaged in anti-competitive conduct, but rather provides an “alternative explanation for the overriding purpose of that conduct.”[7] The Guidelines do make clear that in certain circumstances, “a legitimate business justification can outweigh evidence of anti-competitive purpose when the two are balanced against each other.”[8] Possible legitimate business justifications include reducing operational or production costs, improving technology or processes which enhance product or service offerings, and complying with statutory or regulatory requirements.[9]. Unfortunately, the Guidelines do not materially expand upon the application of TREB outside of the trade association context (or specifically how the Bureau might demonstrate a firm’s “plausible competitive interest” in a market in which it does not compete). On January 16, 2009, Canada's Competition Bureau (the Bureau) released draft revised Abuse of Dominance Guidelines 1 (the Updated Guidelines), which are intended eventually to replace the original guidelines released in 2001. The practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market. Page 2 of 15 1.7 These Guidelines therefore outline the procedural and analytical framework that FCC will apply when investigating abuse of dominant position and enforcing compliance with FCA.

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