Competition Law in Canada – Top 10 Issues for 2013

This is a post of an article written by my partners Anita Banicevic, Richard Elliott, Charles Tingley and me

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2012 was a busy year for competition law and policy in Canada. Below we consider how some of the important developments in 2012 will shape the enforcement of Canadian competition law in 2013.

1. Will the New Interim Competition Commissioner Stay the Enforcement Course?

In September 2012, the Commissioner of Competition resigned and was replaced on an interim basis by John Pecman, a seasoned Bureau veteran with over 28 years of enforcement experience. While a permanent replacement is expected [...]

The Austrian Parliament has passed a bill amending the Austrian competition law rules. On March 1, 2013, significant changes will enter into force. These include the following:

This is the follow-up to the post “Austria: New competition rules – Take one”.

Strengthening of private enforcement

The legislator made efforts to promote private enforcement. This is demonstrated, e.g. by a new provision in the Austrian Cartel Act exclusively dedicated to compensation for damages as a result of infringements of competition law. The new law makes it clear that anyone guilty of committing such a violation is obliged to compensate the resulting damages.

In addition, it states that a private claim [...]

In contrast to e.g. the UK Office of Fair Trading, the European Commission so far has not applied UPP-type approaches in phase I merger enquiries. However, a Commission submission to the OECD earlier this year indicates that it is keeping its options open. This post discusses frequently asked questions regarding the concept of UPP and its use.

What is UPP?

UPP (Upward Pricing Pressure) is a tool with which it is possible to estimate the risk of a merger giving rise to unilateral effects. Unilateral effects may result from a merger between A and B because customers that would switch between A and B in response to a price increase are, post-merger, “internalised” by the merged entity. Bec [...]

The Commission published the text of its most recent prohibition decision in Deutsche Boerse / NYSE Euronext. The Decision is lengthy and the Commission appears to have formulated a response to most arguments proffered by the parties.

However, a review of the Decision brings to the fore a number of ways in which the Commission could improve the quality of the evidence which it uses to support its decisions. Many of the issues discussed below have been debated in the past, including before the EU Courts. And while the Courts generally show a certain level of deference to the type of evidence which the Commission uses, that should not prevent the Commission from continuously trying to imp [...]

Many new economic analysis tools have been introduced, particularly for merger analysis during the last decade. Some of these tools have also raised considerable public interest. For instance, probably not many have avoided hearing of the UPP test, and undoubtedly many are already familiar with the meaning of the abbreviations GUPPI, IPR and CMCR. The discussion has been manifold. It has often revolved around different theoretical issues, but to some extent it has also drawn on the experiences gained from merger assessment praxis.

One central theme in this discussion is related to the role of market definition in the application of the new economic tools. Indeed, many new economic tools hav [...]

In 2007, the European Commission prohibited Ryanair’s attempted hostile bid to acquire rival Irish airline, Aer Lingus. It also refused to order Ryanair to divest its 29.8% stake in Aer Lingus, which it had built up during its aborted public bid. The General Court later upheld both the prohibition of the merger and the refusal to require divestment of the minority shareholding. Subsequently, the UK Office of Fair Trading investigated Ryanair’s minority shareholding in Aer Lingus; Ryanair’s challenges to the OFT’s jurisdiction were rejected by both the Competition Appeal Tribunal and the Court of Appeal. On 1 June the Supreme Court refused Ryanair leave to appeal, thus confirming the OFT’s ability to investigate the transaction, which it referred to the Competition Commission on 15 June. However, immediately thereafter, Ryanair launched a third hostile bid to acquire Aer Lingus, leading to further litigation before the CAT to challenge the Competition Commission’s jurisdiction.
This blog post examines the complex interaction of European Commission and national authority jurisdiction to examine different transactions involving the same parties, as well as the OFT’s reasons for referring Ryanair’s minority shareholding to the Competition Commission.