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UNILATERAL CONDUCT WORKBOOKT - CHAPTER 2 - UNILATERAL EXCLUSIONARY CONDUCT

Resumé

Unilateral conduct laws differ across jurisdictions, but all prohibit a firm possessing dominance/substantial market power from engaging in exclusionary conduct. This prohibition does not protect consumers by directly addressing the exercise of market power, but rather protects consumers indirectly by addressing conduct that maintains or strengthens the position of dominance/substantial market power. Enforcing this prohibition presents the two fundamental questions addressed by this Chapter: What is dominance/substantial market power? And what makes conduct exclusionary? A jurisdiction’s unilateral conduct law, court decisions, and policy statements could have controlling force on how a competition agency answers these two questions, but this Chapter addresses them from first principles. Principles set out here can be of value despite the constraints of statutes, precedents, and guidance documents. This Chapter benefitted from teleconferences with, and from submissions from, ICN members and NGAs on these two fundamental questions.

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Merger Remedies Guide

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The purpose of the Merger Remedies Guide (“Guide”) prepared by ICN is to describe the overarching principles which form the basis of sound merger remedies and to provide guidance on how these principles inform the way in which remedies may be designed and implemented. Reflecting the current experience of competition authorities and practitioners around the world, the Guide builds on the foundation established in the Merger Working Group’s 2005 Report on the Merger Remedies Review Project, and supersedes the 2005 Report by explaining relevant factors in more detail, while providing practical guidance on effective remedial action. This Guide recognizes the significant growth in international cooperation over the past decade and complements the Merger Working Group’s 2015 Practical Guide on International Cooperation (“International Cooperation Guide”) by highlighting the factors that come into play in the design and implementation of remedies when more than one competition authority is reviewing the same merger (“multijurisdictional merger”). Such cooperation is particularly suited to the analysis, design and implementation of remedies, as well as the overall investigation of the merger in question. Merger remedies are typically formalized or codified in some form to ensure enforceability by a court or administrative body. Different jurisdictions refer to the written form of remedies in different ways (Consent Order, Consent Decree, Consent Agreement, Commitments, Remedies, Undertakings, or others). For ease of reference, the term “Remedy Order” will be used in this document to underscore the importance that remedies be enforceable by a governing body or court.

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Relationships between Competition Agencies and Public Procurement Bodies

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The aim of the Chapter of ICN Anti-Cartel Enforcement Manual is to provide competition agencies with practical tools for building constructive relationships with public procurement bodies in order to ensure free and fair competition in public bidding processes. These tools are intended to facilitate the efficiency of public procurement as well as to improve the competitive environment in relevant markets. Pursuant to this goal, the Chapter touches upon issues related to the organization of procurement processes in a competitive way, including signs of bid-rigging, behavioral screens, legitimate and non-legitimate forms of cooperation between bidders, leniency programs, and several other topics. However, given the existence of academic literature in this area, the Chapter will focus on these issues in the context of cooperation between competition agencies and public procurement bodies. Practical examples are based on the replies to a Questionnaire that was circulated to the ICN Cartel Working Group SG2 Members in 2014.

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Online Vertical Restraints Special Project Report

Resumé

In late 2013, the International Competition Network (ICN) decided to commence a project focussed on the internet economy and practical issues regarding the application and interpretation of competition laws to e-commerce. It was decided that this topic—motivated by significant growth and development in online commerce over recent years—would be most appropriately dealt with as a multi-year project limited to online vertical restraints, which were considered to be the issues of highest practical relevance for agencies.

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Drafting and implementing an effective leniency policy

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The purpose of this Chapter is to draw together key practices concerning the drafting and implementation of an effective leniency policy. A number of “good practices” in regard to drafting and implementing an effective leniency policy have been identified throughout the Chapter. These good practices may assist jurisdictions in their consideration of leniency programs. A compilation of these good practices can be found at Appendix 1: Good practices relating to leniency programs. The relevance, and therefore likelihood of adoption by jurisdictions, of any particular good practice outlined in this Chapter will be influenced by a jurisdiction’s competition policy and legal system. In some cases certain practices will not be appropriate due to the legal, legislative or political regimes in which those competition agencies operate.

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Chapter on Digital Evidence Gathering

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In today’s world of advancing technologies, more and more information is being generated, stored and distributed by electronic means. This requires many competition agencies to increase the use of digital evidence gathering as a frequent or standard tool in their fight against cartels. This version of the Chapter represents a second revision. The previous version of the Chapter was released in March 2010, and was based on information collected from ICN members in November 2009 by means of a questionnaire to which 24 member agencies participated. The March 2010 version of the Chapter was an update to the original version, which was published in 2004. This version of the Chapter is streamlined from the two previous versions, and was updated after receiving input from a number of competition agencies and non-government advisors. The goal of this Chapter is to help readers better understand the range of ICN member approaches to digital evidence gathering and to identify good practices and procedures with respect to digital evidence gathering and the use of digital evidence in the context of the investigation, adjudication or prosecution of cartels.

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The Role of Economists and Economic Evidence in Merger Analysis

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This work product updates Chapter 4, of the ICN Investigative Techniques Handbook for Merger Review (the Handbook), “The Role of Economics and Economic Evidence in Merger Analysis”. The Handbook was presented by the Merger Working Group (MWG) at the 2005 ICN Annual Conference in Bonn. The updated chapter is part of the MWG Project on Economic Analysis in Merger Review, a multi-year project started in 2011 with the objective of exploring common practices in areas of economic analysis in merger review in a useful manner for both economist and non-economist merger case handlers. The updated draft: (i) strengthens the content of Chapter 4 by providing more concrete guidance on the practical use of quantitative techniques in the investigation, and (ii) updates and broadens the scope of the chapter by including economic tools not mentioned in the previous version of the chapter. To redraft the chapter, the MWG co-chairs worked with a drafting team composed of the German Bundeskartellamt, the UK OFT, the Taiwan FTC, the US FTC, the Canada Competition Bureau, the Italian Competition Authority, DG Competition of the European Commission and the South Africa Competition Commission. Other MWG members, including agencies and non-governmental advisors (NGAs), provided helpful comments that strengthened the chapter. The work product was enriched by discussions at the 2012 Merger Workshop held in Bogotá and on the MWG teleseminar call series organized in the previous ICN year 2011-2012. The experience-sharing among MWG members and NGAs greatly benefited the chapter.

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UNILATERAL CONDUCT WORKBOOK CHAPTER 5: EXCLUSIVE DEALING

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The term ―exclusive dealing is generally used to describe an arrangement through which an upstream seller‘s goods are sold to a distributor or retailer under the condition that the distributor or retailer does not sell similar competing products. The term exclusive dealing may also describe an arrangement by which a downstream purchaser requires an upstream seller not to sell its product to any competing downstream purchasers. This Chapter focuses on the first type of exclusive dealing arrangement.

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Chapter on International Cooperation and Information Sharing

Resumé

This chapter is intended to be a reference for competition agencies that are undertaking international cooperation or information sharing in the course of anti-cartel investigations, and is not intended to be a comprehensive guide. The ICN Anti-Cartel Enforcement Manual is a work in progress and all chapters may be updated or revised in the future. This chapter complements existing chapters on searches, raids and inspections, leniency, digital evidence gathering, case initiation, interviewing techniques, investigative strategy, case resolution methods, and cartel awareness, outreach and compliance. Finally, this chapter and the others that form the AntiCartel Enforcement Manual must be read in the context of current enforcement laws, policies and practices of each jurisdiction.

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UNILATERAL CONDUCT WORKBOOK CHAPTER 4: PREDATORY PRICING ANALYSIS

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The Unilateral Conduct Working Group’s (“UCWG”) Report on Predatory Pricing provides specific guidance on this topic.3 It reports the responses of thirty-four ICN Members and six non-governmental advisors to a UCWG questionnaire and takes into account the approaches of competition agencies from around the world. This Workbook Chapter seeks to complement that report by providing practical guidance on conducting a predatory pricing investigation.

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