Abuse of Dominance
Alice Pham
31 October 2014
Content
1.
2.
3.
4.
5.
Introduction
Definition of relevant markets
Analysis of market power
Abusive practices
Efficiency defenses
1. Introduction
What is ‘abuse of dominance’/’abuse of dominant position’?
• “Abuse” of a dominant position occurs where the dominant
enterprise, either individually or together with other
undertakings, exploits its dominant position in the relevant
market or excludes competitors and harms the competition
process. (ASEAN Regional Guidelines, §3.3.1.2)
• “Abuse of a dominant position occurs when a dominant
firm in a market, or a dominant group of firms, engages in
conduct that is intended to eliminate or discipline a
competitor or to deter future entry by new competitors,
with the result that competition is prevented or lessened
substantially” (Competition Bureau, Canada,
www.competitionbureau.gc.ca)
1. Introduction
What do Competition Authorities look at when
assessing a possible abuse of dominance?
 What is the market of goods/services of the case?
= Defining the relevant market in which firms operate!
 What is the market position of the firm in focus?
= Assessing the market power of the firms!
 What is the business practice in focus?
= Assessing the abuse!
 Does the business practice harm competition?
= Assessing the effects on competition!
1. Introduction
Dominant position in a market
 Definition of the relevant market?
 Is there a dominant position in the relevant market?
Business practice by the dominant firm
 Exploitative abuse?
 Exclusionary abuse?
What are the effects of this business practice on
competition?
 Is the business practice preventing or lessening
competition substantially?
2. Definition of relevant markets
Relevant markets in the Draft Competition Law of Myanmar
“Relevant Market means Goods or Services which are regarded as
interchangeable or substitutable by the consumer, by reason of the
Goods' characteristics, their prices and their intended use, and
which are supplied in a geographic area by the Undertakings
concerned, in which the conditions of competition are sufficiently
homogeneous and which can be distinguished from neighbouring
areas because the conditions of competition are appreciably
different in those areas.” (Draft Competition Law of Myanmar,
§2(p))
 Main approach: Define the relevant product market first using
demand substitution, then define the geographic market
2. Definition of relevant market
• For the determination of substitution in defining
relevant product market, the draft law refers to:
– Characteristics
– Use purpose
– Price
of goods or services
• For defining the relevant geographic market, note:
– Sufficiently homogeneous (similar) competitive conditions
within one geographic area
– Appreciably different from neighbouring areas
 Considering other business establishments that
supply the relevant product(s) within the area or in
neighbouring areas, transportation costs or costs of
service provision, barrier(s) to market entry, etc
2. Definition of relevant markets
• Barriers to market entry:
– Technical or technological matters
– Financial matters
– Administrative decisions by State administrative
bodies
– Laws and regulations
– Tariff and non-tariff barriers
– Consumer practices
– Others
3. Analysis of Market Power
Dominant position
Definition by the European Court of Justice
• A position of economic strength enjoyed by an undertaking which
enables it to prevent effective competition being maintained on the
relevant market by affording it the power to behave to an
appreciable extent independently of its competitors, customers and
ultimately of its consumers.
Definition in the ASEAN Regional Guidelines
• “Dominant position” refers to a situation of market power, where
an undertaking, either individually or together with other
undertakings, is in a position to unilaterally affect the competition
parameters in the relevant market for a good(s) or service(s), e.g.,
able to profitably sustain prices above competitive levels or to
restrict output or quality below competitive levels.
3. Analysis of Market Power
Market power
‘Market Power means the substantial degree of market
position that an Undertaking has in a given Relevant
Market as a result of various factors, including its high
market share and that of its competitors; its ability to
make pricing and other decisions largely independently
from the competitive forces in the Relevant Market;
and any barriers to entry to competitors into the
Relevant Market of this paragraph.’ (Draft Competition
Law of Myanmar, §2(o))
‘Market power is the ability of a firm to raise prices
above its marginal cost.’
(Massimo Motta, Competition Policy, Theory and Practice,
Cambridge, 2004)
3. Analysis of Market Power
Note:
 abuse of dominance or abuse of monopoly position:
 different terms for the same
 The ability of a firm to raise price above some
competitive level – the benchmark price – in a
profitable way
 Market power is a continuum, at some point
dominance
 Since the lowest possible price a firm can profitably
charge is the price which equal the marginal cost of
production (firms have zero fixed costs), market power
is usually defined as the difference between the prices
charged by firm and its marginal cost of production.
3. Analysis of Market Power
Indicators of market power:
 Market shares
 Concentration Ratio
 Product differentiation
 Barriers to entry and potential competition
 Barriers to exit
 Buyers‘ and suppliers‘ power
 Financial power
3. Analysis of Market Power
Market shares
General measurement:
 value and volume
 absolute and relative
‘Market share means a percentage or a portion of the
Relevant Market’ (Draft Competition Law of Myanmar,
§2(s))
‘Market share’ refers to the quantity or value of the relevant
products or services sold or purchased by one or more
undertakings in the relevant market, as a percentage of the
total quantity or value of those products or services in the
relevant market. (ASEAN Regional Guidelines, §3.2.3.1)
3. Analysis of Market Power
Market shares
 Market shares > 50%
 strong indication for dominance
 Market shares > 40%
 relevant and significant if taking into account:
- changes in the absolute level over time
- level relative to the nearest competitor
- presence of other factors
 Market shares between 30 and 40%
 fall below level of assumption and more evidence
(substantial disparities in market shares, significant barriers to
entry, etc.) would be required
 Market shares < 30%
 normally no dominance except exceptional conditions
4. Abusive Practices
Standard categorization of different types of abuse:
 Exclusionary practices
 Price-related conduct
-
Predatory pricing
Price discrimination
Fidelity rebates and similar practices
Margin squeeze and cross-subsidisation
 non-price related conduct
- Discrimination
- Refusal to supply
- long-term exclusive dealing
 Exploitative practices
 Price-related conduct
- Excessive pricing
 non-price related conduct
- Tying and bundling
4. Abusive Practices
Exclusionary practices
 price related conduct
 Predatory Pricing
Predatory Pricing is in essence the setting of prices by a
dominant firm at a level which has, as its commercial
rationale, the elimination of or serious weakening of a
competitor rather than the generation of profits.
 Price discrimination
Price discrimination involves the treatment of like cases
differently or giving the same treatment to cases that are in
fact different.
4. Abusive Practices
Exclusionary practices
 price related conduct
 Fidelity rebates and similar practices
Special financial rebates or discounts granted by dominant
firms in return for securing all or an increased proportion of
the business of customers may are abusive in the lack of
objective justification.
 Margin squeeze
A vertically integrated firm, which is dominant on the
upstream-market, favours its own downstream operations
against downstream competitors by charging the latter input
prices at a level which leaves them a insufficient margin.
4. Abusive Practices
Exclusionary practices
 non-price related conduct
 Discrimination
Discrimination (in other aspects than prices) is the treatment
of like cases differently or giving the same treatment to cases
that are in fact different (e.g. nationality).
 Refusal to supply
A dominant firm refuses access to the product market on
which it is dominant and thereby restricts or prevents
competition on another market, normally a market which it
has also an interest but its market position is considerably
weaker.
4. Abusive Practices
Exclusionary practices
 non-price related conduct
 Long-term exclusive dealing
Entry by a dominant firm into long-term exclusive contracts
may constitute an abuse because of making other parties
dependent on the dominant firm, reducing competition from
its existing competitors and deterring new entrants.
4. Abusive Practices
Exploitative practices
 price related conduct
 Excessive pricing
Excessive pricing by a dominant firm can be abusive as it will
achieve larger profits than it would earn in a more
competitive environment.
 non-price related conduct
 Tying and bundling
Tying or bundling occurs, where a dominant firm compels
customers buying one product to also acquire another
completely distinct product.
4. Abusive Practices
Abusive Practices according to the Draft Competition Law of Myanmar
§17. Without any reasonable objective justification, an Undertaking, which has market
power in any Relevant Market, shall not conduct any of the following activities that
could affect the Myanmar market:
a) selling Goods or providing Services at a price which is lower than the production
cost, with the object or effect of driving its competitors out of the market; (
Predatory pricing)
b) selling Goods or providing Services at an unfairly high price; ( Exploitative
pricing)
c)
buying Goods or Services at an unfairly low price; ( Exploitative pricing)
d) refusing to supply, or altering the quality of, Goods or Services that it supplies, or
limiting access to the market to competing Goods, or hindering the development
of science and technology; ( Refusal to supply)
e) imposing different trading conditions to third party Undertakings being in similar
conditions, or imposing similar trading conditions to third party Undertakings
being in different conditions; ( Non-price Discrimination)
f)
imposing unfair rules on other Undertakings when entering into a contract for
Goods and Services, or coercing the other Undertaking to accept liabilities which
are not directly related to such agreement; ( Unfair trading conditions)
g) blocking new entrants into the market by any means. ( Market foreclosure)
5. Efficiency Defenses
Efficiency defenses (“legitimate business
reasons“), examples:
 Cost minimization (economies of scale)
 Economies of scale
 Transaction costs
 Internalization of external effects
→ No exemptions or efficiency defenses allowed in the Draft
Competition Law of Myanmar
Abuse of Dominance
Thank you for your attention!
ap@cuts.org