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

1) Article 3 of the Antimonopoly Act

Article 3 of the AMA prohibits monopolization by private market operators. Private monopolization is defined in the Act as “such business activities by which any entrepreneur (...) excludes or controls the business activities of other entrepreneurs, thereby causing, contrary to public interest, a substantial restraint of competition in any particular field of  …

Monopolization

Article 3 of the AMA prohibits monopolization by private market operators. Private monopolization is defined in the Act as “such business activities by which any entrepreneur (...) excludes or controls the business activities of other entrepreneurs, thereby causing, contrary to public interest, a substantial restraint of competition in any particular field of trade”. Activities that constitute private monopolization may be engaged in “individually or by combination or conspiracy with other entrepreneurs, or by any other manner.”

Thus, the prohibition is directed against acts that substantially restrict competition through the exclusion or domination of other business entities.

Exclusionary acts are defined as intentionally committing an anticompetitive act thereby creating substantial restrictions on competition within a particular field of trade. An exclusionary act may be committed in a field of trade other than one's own, and thus, the business entity excluded need not be a direct competitor of the private monopolist. Examples of acts that are prohibited when engaged in by a dominant entity include obstructing market entry, discriminatory pricing, dumping or restricting supplies.

Little case law has developed under Article 3, mainly because before 2005, there was no fine (called "surcharge") for this type of behavior and because of the high level of the standard of proof required. A dominant entity that unfairly maintained or enhanced that position was therefore more likely to be sanctioned under the prohibition against unfair trade practices than under Article 3. In 28 October 2009, the JFTC issued its Guidelines for Exclusionary Private Monopolization under the Antimonopoly Act. The Guidelines describe four typical exclusionary conducts: below-cost pricing; exclusive dealing; tying and refusal to supply and discriminatory treatment and for each type of conduct, details factors for assessing whether the alleged conduct falls under exclusionary conduct. However, exclusionary conduct that constitutes exclusionary private monopolization is not limited to the acts that fall under these four typical exclusionary conducts.

Even though it is not absolutely prohibited to achieve a dominant position through the application of ordinary business methods, Article 8-4 of the AMA provides for the JFTC to be able to take measures against monopolistic situations. Thus, where the structure of the market is highly oligopolistic and exhibits other undesirable indicators, the JFTC may, in extreme cases and as a last resort, require transfer of part of a business where this will restore effective competition.

Adverse effects that might justify such measures include situations where the market share of the top firm exceeds 50%, or the market share of the top two firms exceeds 75%, where market entry is extremely difficult and there has been a decrease in demand or supply costs unaccompanied by a corresponding decrease in price (Article 2(7)). Although this power exists theoretically, the stringent criteria governing its application has resulted in its not having been used to date.

Global Competition Law

1044. Monopolization

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Les notions juridiques connexes

1044. Monopolization

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