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While demonstrating plausible competitive interest may be straightforward in the case of a trade association in light of TREB, it is unclear how this principle would be applied in other circumstances. 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. 6. 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. [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]. Section 1 of Act No. / Noel, Michael. [1] The Commissioner of Competition v. Vancouver Airport Authority, CT-2016-015. Y1 - 2013. 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. GL/Competition/ADP/2018 Guidelines on Abuse of Dominant Position Page 2 2. 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. 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. 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). Note to the reader: All references to Art 82 EC should be understood as references to the current article 102 of the Treaty on the Functioning of the European Union (as renamed by the Treaty of Lisbon, which entered into force on 1 December 2009). Abuse of Dominance Guidelines: An Economic Review. Osler’s public consultation submission to the Bureau is available here [PDF]. 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 … The Guidelines are not materially different from the draft guidelines, which were released for public consultation in March 2018, available here. On March 7, 2019, the Competition Bureau (Bureau) published new Abuse of Dominance Enforcement Guidelines (2019 Guidelines). 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. 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. Abuse of dominant position (Article 102 TFEU) Legislation in force. Research output: Contribution to journal › Article › peer-review. AU - Noel, Michael. On September 20, 2012, the Competition Bureau issued new final Abuse of Dominance Guidelines (see: Competition Bureau Issues Abuse of Dominance Guidelines). 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. First, before the law can be kets. Moreover, co-ordination between allegedly jointly dominant market participants need not be demonstrated in order to support a finding of joint 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. JO - Canadian Competition Law Review. [6] Guidelines at para. The Act prohibits the abuse of a dominant position by firms in a market, but does not prohibit firms from holding a dominant position. An independently reviewed evaluation of the Office of Fair Trading’s (OFT) 2011 decision on Reckitt Benckiser’s abuse of dominance in the market. Y1 - 2013. Abuse of position may result in: 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. section 30 of the Competition Act (‘the Act’), which covers abuse of dominance. to Abuse of Dominance. 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. 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]. A Principled Approach to Abuse of Dominance in European Competition Law. 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 … 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. On March 7, 2019, the Competition Bureau (Bureau) released updated, The Guidelines provide a detailed outline of the Bureau’s approach to the abuse of dominance provisions in section 79 of the. 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). 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. The Competition Act and the MyCC Dominance Guidelines do not address this specific form of abuse (see question 6). Note to the reader: All references to Art 82 EC should be understood as references to the current article 102 of the Treaty on the Functioning of the European Union (as renamed by the Treaty of Lisbon, which entered into force on 1 December 2009). I. They do … increased in response to any abuse of a dominant position. Abuse of dominance. Additional challenge: lack of abuse of dominance guidelines. Forms of abusive conduct 3. On March 7, 2019, the Competition Bureau (Bureau) published new Abuse of Dominance Enforcement Guidelines (2019 Guidelines). Those chapters summarize the criteria that the Enforcement Authority will use to analyze the cases of abuse of dominance brought to its attention. Abuse of dominance is unilateral conduct using dominant market power (or a dominant position) to damage market competition and ultimately welfare. Request an accessible format. Section 3 of Act No. 6. 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. 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 . AU - Noel, Michael. dominant undertaking, for example where they face serious capacity limitations. SP - 59. M3 - Article . 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. The examples used within these guidelines are for illustration and do not set a limit on the investigation and enforcement activities of the Commission. Similar or parallel conduct by firms is insufficient, on its own, for the Bureau to consider those firms to hold a jointly dominant position. I. 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. 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. 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. to Abuse of Dominance. The Guidelines Remedies mandating supply can raise concerns on a number of fronts, including relating to data protection or the stifling of innovation. 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 … However, 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 Enforcement Guidelines. Such claims must be thoroughly tested and the regulatory and contractual regimes pursuant to which such information is collected and may be used must be carefully considered before resorting to a data supply remedy.

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