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

Important amendments were made to the Competition Act in March 2009. The Competition Act now reserves criminal sanctions to the most serious forms of anticompetitive agreement (Section 45) and provides civil sanctions for other forms of agreement. On 23 December 2009, the Canadian Competition Bureau adopted the Competitor Collaboration Guidelines setting out the prohibitions included in the Compet …

Context

Important amendments were made to the Competition Act in March 2009. The Competition Act now reserves criminal sanctions to the most serious forms of anticompetitive agreement (Section 45) and provides civil sanctions for other forms of agreement. On 23 December 2009, the Canadian Competition Bureau adopted the Competitor Collaboration Guidelines setting out the prohibitions included in the Competition Act. Further significant amendments were adopted on 23 June 2022.

Agreements that are likely to substantially lessen or prevent competition in any relevant market may be prohibited by the court in application of Section 90.1(1) of the Competition Act.

Section 90.1(1) is only applicable to agreements between parties who compete or who are potential competitors with respect to the products that are the subject of the agreement.

Civil offenses

Exceptions and defenses provided for the application of Section 90.1(1) of the Competition Act concern, inter alia, the existence of efficiency gains (Section 90.1(4)), agreements between competitors that relate only to the export of products from Canada (Section 90.1(8)), agreements listed in Section 90.1(9), specialization agreements that are registered under Section 86 of the Act.

Defenses and exceptions to civil offenses

Under Section 45 of the Competition Act it is an indictable criminal offense:

(a) to fix, maintain, increase or control the price for the supply of the product;

(b) to allocate sales, territories, customers or markets for the production or supply of the product;

(c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product.

The provisions of Section 45 apply to agreements between actual and potential competitors to fix prices, allocate markets or limit the production of a good. The restrictions referred to are prohibited per se: they are anticompetitive restrictions by object and do not require any analysis of their effects.

Where a restrictive agreement has been concluded between federal financial institutions within the meaning of Section 49(1) of the Act, it is assessed under the special provisions of Section 49 of the Act and not under Section 45.

The former criminal pricing provisions (resale price maintenance, Section 61, and price suggestions) have been repealed on March 2009; such activities are now addressed under the civil abuse of dominance provisions.

“Bid-rigging” is a specific infringement. It is defined in Section 47 as an agreement whereby one party agrees not to submit a bid or where a bid results from a secretive arrangement between two or more bidders. Agreements between a company and its affiliates are specifically excluded from the scope of the prohibition.

The Act also provides for a criminal fine at the discretion of the Competition Tribunal for undertakings operating in Canada and which are implementing a restrictive agreement falling within the scope of Section 45 but concluded abroad (Section 46(1)).

Criminal offenses

Exemptions to the prohibition provided by Section 45 of the Competition Act include, inter alia, ancillary restrictions, i.e. agreements or arrangements that are directly related to and necessary for giving effect to a broader lawful agreement, such as for example a non-compete clause between a joint venture and the undertakings having created it (Section 45(4)), agreements between a company and its affiliates (Section 45(6 a)) and agreements between competitors which only relate to the export of products from Canada (Section 45(5)).

Global Competition Law

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Les notions juridiques connexes

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Les notions juridiques connexes

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