Ad-Hoc Expert Group on the Role of Competition Law and
Policy in Promoting Growth and Development
Geneva, 15 July 2008
Should Developing Countries Worry About Abuse of Dominance?
by
Markus Lange
German Cartel Office
The views expressed are those of the author and do not necessarily reflect the views of UNCTAD.
Markus Lange
Bundeskartellamt
Issues of Unilateral Conduct and
Dominance as Addressed by ICN
UNCTAD
Ad-hoc Expert Group
15 July 2008
ICN – Some Background
ICN is an informal network of competition agencies world-wide.
Founded in 2001, it has, as of 2008, ca. 100 competition agencies
as its members.
ICN is
- project-oriented
- consensus-based
- concerned with competition issues that are of relevance
internationally
see: http://www.internationalcompetitionnetwork.org
The main mode of operation of ICN is to elaborate reports on
competition law practice in the members’ jurisdictions and to make
recommendations to the members on applying competition law
principles.
The substantive work of ICN is done in several working groups,
three out of these deal with:
- mergers
- cartels
- unilateral conduct
Unilateral Conduct Working
Group (UCWG)
The UCWG was established in May 2006, at the occasion of the
5th ICN Annual Conference.
Recent work completed by the UCWG includes
-
Dominance / Substantial Market Power Analysis –
Recommended Practices
-
State-Created Monopolies Analysis Recommended Practices
-
Report on Single Branding/ Exclusive Dealing
-
Report on Predatory Pricing
Recommendations on
Dominance / SMP Analysis
- General Framework
- Role of Market Shares
- Market Shares: Safe Harbors and Indicators of
Dominance / SMP
- Entry Analysis and Further Criteria
General Framework
- Using a sound analytical framework to determine
whether Dominance / SMP exists in a given case
- Comprehensive consideration of relevant market
conditions
- Analytical framework is generally independent of
relative size of economy or openness to trade
(no special framework for small / isolated economies)
- Transparency of assessment by agencies
Market Shares
- Market shares as indication and starting
point of analysis
- Market share-based thresholds as safe
harbours may be beneficial
- Market share-based thresholds as
indicators of dominance/SMP may be
beneficial
Entry Analysis and Further Criteria
- Assessing durability of market power: integral
part of the analysis
- Low barriers to entry – mitigating the
significance of high market share
- Further Criteria to be considered, e.g.: access
to upstream markets/ vertical integration,
economies of scale and scope/ network
effects, access to important inputs, financial
resources
Recommendations on StateCreated Monopolies Analysis
- Enforcement Role of Competition Authorities
- Advocacy Role of Competition Authorities
During the Liberalization and Privatization
Process
- Effective Competition Advocacy Instruments
Current Work Programme of
the UCWG
Work on reports on two topics:
- Single Product Loyalty Discounts and
Rebates
- Tying & Bundled Discounting
Markus Lange
Head of International Section
Bundeskartellamt
Germany
Tel.: +49 228 9499 240
Fax: +49 228 9499 144
markus.lange@bundeskartellamt.bund.de