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. 1.4 The scope and application of Article 82 and the Chapter II prohibition are explained in Part 2 of this guideline. 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. Further, the RTP Guidelines categorise abuse of dominance into two categories: exploitative and exclusionary abuses. to Abuse of Dominance. rule implies that, for a conduct to be considered as an abuse of dominance, the following requirements must be fulfilled: a)The person or undertaking has to hold a dominant position in a specific market; b)The alleged conduct must represent an abuse of that dominant position; and Beside these instructions can be added and decisions of the Court of Justice of the European Union and the Court of First Instance. 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 general concept of abuse 2. Part 3 of the guideline deals with the relationship between EC and national competition law. Those chapters summarize the criteria that the Enforcement Authority will use to analyze the cases of abuse of dominance brought to its attention. What is abuse of dominance o‌r monopolisation? The Guidelines 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. 2 ibid. 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. First, before the law can be kets. 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]. Abuse of Dominance Guidelines: An Economic Review. 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. The regulation of abuse of dominance is enshrined under section 4 of the Act. The Bureau’s new Guidelines replace its former 2001 Guidelines and are the result of some fairly significant public consultations, including comments from the Canadian and U.S. competition/antitrust law bars and … Competition Bureau Issues Expanded Abuse of Dominance Enforcement Guidelinesby Practical Law Canada CompetitionRelated ContentThis Legal Update discusses the Competition Bureau’s recently released updated Abuse of Dominance Enforcement Guidelines. The examples given in these Guidelines are for illustrative purposes only and are not exhaustive. Part of Antitrust and Competition Law. What is of crucial importance for discussion of the issue of collective dominance is the phrase “one or more,” which is to be found 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. I. 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. While this is an improvement on the wording in the draft guidelines, it nonetheless increases uncertainty for businesses with relatively low market shares. In: Canadian Competition Law Review, 2013, p. 59-77. 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. 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. Abuse of dominance is unilateral conduct using dominant market power (or a dominant position) to damage market competition and ultimately welfare. dominance. JO - Canadian Competition Law Review. The broad lines of that reflection were set out by the then Competition Commissioner Neelie Kroes. Receive updates by email. 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. 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). One or more persons substantially or completely control a class or species of business throughout Canada or any area thereof; That person or those persons have engaged in or are engaging in a practice of anti-competitive acts; and. In the absence of vigorous competition the Bureau may conclude that the lack of mutual competitive constraints permits them to exercise a substantial degree of market power. The examples used within these guidelines are for illustration and do not set a limit on the investigation and enforcement activities of the Commission. First, before the law can be kets. 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. 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. Abuse of dominance. It accounts the characteristics of the platform economy and basic principles of regulator's supervision, and gives specified guidance including but not limited to monopoly agreement, abuse of dominance, and concentration of undertakings in the context of platform economy. Request an accessible format. The due date for the comments is 6:00 p.m. on Monday, September 30, … 6. 54. For ground handling enterprises, the unit applicable would depend on the type of ground handling services provided. I. We believe that our success is a reflection of our clients' success. 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. The practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market. The guidelines, drafted under the basic system of China's anti-monopoly law, consists of six chapters with 24 articles. 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. 7 GUIDELINES ON CHAPTER 2 PROHIBITION. This, however, does not … AU - Noel, Michael. Accordingly, we may soon have additional Tribunal guidance to consider on these topics and possibly a further a revision to the Guidelines. These Guidelines may be revised should the need arises. Abuse of Dominance (Article 102 TFEU) Eirik Østerud . Abuse of Dominance Guidelines: An Economic Review. d) There must be actual or potential for abuse of dominance. Abuse of Dominance (Article 102 TFEU) Eirik Østerud . These guidelines describe the Bureau’s general approach to enforcing the abuse of dominance … Other Competitive Factors That Would Be Considered by the MyCC: 2.18. 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. T1 - Abuse of Dominance Guidelines: An Economic Review. The Guidelines were issued nearly one year after the prior draft was released for public consultation in March 2018, and replace the previous guidance issued in 2012. 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 … Osler is a leading business law firm practising internationally from offices across Canada and in New York. 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. More information on these changes. 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.”. The Guidelines have been developed in line with international best practice, such as the International Competition Network (ICN) guidelines, the Southern African Development Community (SADC) guidelines and other countries experiences. These Guidelines are not a substitute for the Act or any Regulations that are made pursuant to the Act. GL/Competition/ADP/2018 Guidelines on Abuse of Dominant Position Page 2 2. This could be done ex post (in the context of abuse-of-dominance proceedings) or at the point of a merger. An example of domestic case-law is case Suomen Numeropalvelu (SNOY), in which the Market Court found SNOY guilty of abuse of dominance by refusing to submit telephone subscriber information for the electronic telephone catalogue service by Eniro Oy (Dnro 281/05/KR and 293/05/KR).. However, a dominant company has a special responsibility to ensure that its conduct does not distort competition. 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. 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. These guidelines have a separate chapter for each of these requirements.