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

Exemptions are possible under the same conditions and according to the same criteria as for restrictive agreements. …

Exemptions

The Competition Act contains a series of rules applicable to undertakings in a dominant position. 

Section 7 of the Competition Act provides for a presumption of dominance according to the market share of the undertaking and which may or may not be overturned depending on the market shares held: a firm is dominant if it has at least 45% of a market, or if it has at least 35%, but less than 45%, of that market unless it can show that it does not have market power or, if it has less than 35% of that market, but has market power. The Competition Act defines market power as “the power of a firm to control prices, or to exclude competition or to behave to an appreciable extent independently of its competitors, customers or suppliers”.

Section 8 of Competition Act, as amended by the Competition Amendment Act of 2018, effective 13 February 2020, prohibits certain "abuses of dominance": charging an excessive price to the detriment of consumers or customers, refusing to give a competitor access to an essential facility, engaging in exclusionary acts other than those listed in Section 8(d) where the anticompetitive effect of those acts outweighs their technological, efficiency or other procompetitive gain. Section 8(d) provides a list of exclusionary acts which are also prohibited unless the undertaking concerned can show technological, efficiency or other procompeti-tive gains which outweigh their anticompetitive effect: requiring or inducing a supplier or customer not to deal with a competitor; refusing to supply scarce goods or services to a competitor or customer when supplying those goods or services is economically feasible; selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to the object of a contract; selling goods or services at predatory prices; buying-up a scarce supply of intermediate goods or resources required by a competitor; or engaging in a margin squeeze.

New Section 8(4) also introduced a prohibition of abuse of buyer power, whereby a dominant undertaking is prevented to require or impose unfair prices or trading conditions to suppliers that are small and medium businesses (SMEs) or undertakings controlled or owned by historically disadvantaged persons (HDPs). Avoiding or refusing to purchase in order to circumvent the above-mentioned prohibition also constitutes an infringement. The prohibition will only apply in specific sectors which must be designated by the Minister of Trade and Industry.

Section 9, as amended in 2018, prohibits price discrimination if it is likely to have the effect of substantially preventing or lessening competition or impeding the ability of SMEs or undertakings controlled or owned by HDPs to participate effectively. Avoiding or refusing to sell in order to circumvent the above-mentioned prohibition also constitutes an infringement.

Price discrimination is not prohibited if the dominant undertaking establishes that the differential treatment (a) makes only reasonable allowance for differences in cost or likely cost of manufacture, distribution, sale, promotion or delivery resulting from the differing places to which, methods by which, or quantities in which, goods or services are supplied to different purchasers, (b) is constituted by doing acts in good faith to meet a price or benefit offered by a competitor or (c) is in response to changing conditions affecting the market for the goods or services concerned.

On 13 February 2020, the day the new provisions of the Competition Amendment Act 2018 came into force, the Minister of Trade and Industry released Regulations on Price Discriminaton and Regulations on Buyer Power which aim at providing more clarity on the constituent elements of each of those new infringements. In turn, the Competition Commission released its Price Discrimination and Buyer Power Guidelines on 18 May 2020.

The South African Competition Commission has published final guidelines on the calculation of price-cost margins.

Abuse of a dominant position

The Competition Amendment Act, No 1 of 2009, regulates complex monopolies. A complex monopoly is a situation where: (a) at least 75% of the goods or services in that market are supplied to, or by, five or fewer firms, (b) any two or more of the firms contemplated conduct their respective business affairs in a conscious parallel manner or coordinated manner, without agreement between or among themselves and (c) the conduct has the effect of substantially preventing or lessening competition in that market. Those provisions, however, have not yet entered into force.

Complex monopoly

Exemptions are possible under the same conditions and according to the same criteria as for restrictive agreements.

Global Competition Law

1249. Exemptions

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Les notions juridiques connexes

1249. Exemptions

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