OECD kpcdb

1. Scope

Section 46 of the CCA sets forth that a business that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:

 

a)  eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;

b)  preventing the entry of a person into that or any other market; or

c)  deterring or preventing a person from engaging in competitive conduct in that or any other market

2. Assessment

In assessing whether there has been a misuse of market power, three factors are considered:

 

a)  the existence of substantial degree of market power: market power is defined as the ability of a business to insulate itself from competition. In determining whether a corporation has substantial market power, various factors are taken into account, such as: the entry barrier, market share and financial strength of the business, and the ability of the business to consistently restrict competition;

b)  whether a corporation has taken advantage of the market power: to determine whether a business has taken advantage of its substantial degree of market power, various factors are considered, for instance, whether the conduct was facilitated by or relied on the business’s substantial degree of market power or whether the business would have engaged in the conduct without the substantial degree of power in the market; and

c)  whether the market power was used for an illegal purpose: the use of the market power for illegal purpose is identified as conducts that eliminate or substantially damage a competitor; prevent the entry of a person into any market; or deter or prevent a person from engaging in competitive conduct in any market.

 

In the last 5 years, the ACCC has taken on two misuse of market power cases and has been unsuccessful on both counts.

3. Remedies and sanctions

See Section I.4 above for more information.

 

 

* This information is based on Competition Law in Asia-Pacific: A Guide to Selected Jurisdictions (2018).