44 Pages Posted: 11 Jun 2009 Last revised: 12 Jun 2009
Date Written: June 8, 2009
The last year has been ripe with antitrust authorities issuing (and withdrawing) guidance on their approach to evaluating practices of abuse of dominance. Canada's Competition Bureau is no exception with its January 2009 release of revised guidelines on the abuse of dominance provisions (sections 78 and 79 of the Competition Act) for public consultation. These guidelines differ in some important respects not only with the Bureau's 2001 version of these guidelines, but also with the European Commission's December 2008 guidance on abusive exclusionary conduct by dominant undertakings, and the US Department of Justice's 2008 paper on single-firm conduct under section 2 of the Sherman Act (withdrawn May 2009). This paper identifies the differences in enforcement approaches adopted or suggested by these various antitrust agencies and, where differences are sharp, explores the possible causes of these differences. Canada is revealed to be somewhat of an outlier in regard to certain issues, including: not adopting the use of a price-cost test for non-predatory price conduct, taking a firm position on an approach to market definition in abuse cases, and, at least relative to the US and Canada’s stated 2001 position on the issue, adopting a distinctive approach to joint dominance.
Keywords: unilateral conduct, abuse, guidelines, market definition, joint dominance
JEL Classification: K21, L40, L42
Suggested Citation: Suggested Citation