Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Sections 5 and 6 define the concept of “dominant position”. An undertaking in a dominant position is described as an undertaking which is the only offerer or buyer on a market or which is “not exposed to substantial competition”, or alternatively as an undertaking capable, “because of the vertical or horizontal degree of integration”, of excluding a competitor from the market.
The Competition Act  …

Abuse of dominant position 

Anticompetitive conducts are governed by Sections 1 to 6 of the Competition Act. It should be noted that unlike most competition laws, the Act does not treat cases of restrictive agreements and abuses of dominance separately (Especially Section 3).

The prohibition

Section 1 contains a general prohibition of restrictive practices: “acts and behaviors, irrespective of their manifestations, related to the production or trade of goods and services that have as their object or effect to limit, to restrict or to distort competition or access to the market, in a manner that may result in harm to the general economic interest are prohibited”.

The “harm to the general economic interest” criterion was interpreted by the Antitrust Commission as amounting to harm to consumer welfare, on the basis of the Merger Guidelines adopted in 2001 (Resolution 164/2001) and a judgment of the National Supreme Court of Justice of 2 July 2002 (Yacimientos Petrolíferos Fiscales S.A. [YPF]/Ley 22.262 - Comisión Nacional de Defensa de la Competencia Secretaría de Comercio e Industria).

A major amendment brought by the 2018 reform consists in the establishment of a list of per se prohibitions in Section 2. Practices presumed to harm the general economic interest include:

- agreements limiting the production, distribution or purchase of goods or services;

However, Section 29 empowers the Competition Court to authorize agreements implementing any of the conducts described in Section 2 where it deems that such agreements do not cause harm to the general economic interest. 

Section 3, on the other hand, sets a list of restrictive practices which are only prohibited where they satisfy the conditions set in Section 1 (e.g, exchange of information, discrimination, refusal of sale, directorate interlocking, ...).

Restrictive agreements 

Sections 5 and 6 define the concept of “dominant position”. An undertaking in a dominant position is described as an undertaking which is the only offerer or buyer on a market or which is “not exposed to substantial competition”, or alternatively as an undertaking capable, “because of the vertical or horizontal degree of integration”, of excluding a competitor from the market.

The Competition Act does not establish a presumption of dominance based upon a certain level of market share. Instead, Section 6 enumerates three criteria to be taken into account to assess the existence of a dominant position:

- the extent to which the relevant goods or services may be replaced by other national or foreign goods or services, and the conditions and time required for such replacement (Section 6.a);

- the extent to which regulatory restrictions limit the access of products or suppliers or buyers to the relevant market (Section 6.b); and

- the extent to which the relevant undertaking has the power to unilaterally affect prices or to restrict the supply or demand in the market, and the extent to which its competitors are able to offset that power (Section 6.c).

Abusive behavior is described in Section 3 of the Act. It can consist in the limitation of production or output, forcing competitors out of the market, tied selling, imposition of discriminatory conditions, etc.

Global Competition Law

768. Abuse of dominant position

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

768. Abuse of dominant position

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise