Antimonopoly & Unilateral Conduct

Last verified on Tuesday 30th August 2016

Russia

Evgeny Voevodin, Andrey Zakataev and Mikhail Voronin
Antimonopoly Law Office LLC

    Overview

  1. 1.

    What is the legal framework governing unilateral conduct by companies with market power?

  2. Article 10 of the Federal Law No.135-FZ ‘On the Protection of Competition’ (FLPC) deals with unilateral conduct of economic entities by prohibiting abuse of dominant position.

    Article 5 of the FLPC provides the definition of dominance.

    There are a number of specific legal acts that are essential for establishing of dominance in certain sectors, for example, the Federal Law ‘On the Electrical Energy Industry’ and the Federal Law ‘On the Natural Monopolies’. There are also a number of secondary legislation that govern non-discriminatory access to infrastructure operated by natural monopolists, whose conduct falls under the same provisions of the FLPC that apply to all dominant entities.

    A special regulation is in place for food chain retailers under the Law No.381-FZ ‘On the Fundamentals of State Regulation of Trade’. This law treats food chain retailers as quasi-dominant subjects expressly prohibiting them from impeding access to market, discriminating among suppliers and imposing unfavourable terms on suppliers.

  3. 2.

    What body or bodies have the power to investigate and sanction abuses of market power?

  4. The Federal Antimonopoly Service of the Russian Federation (FAS) is responsible for all matters connected with the investigation of market power. The FAS investigates violation of antimonopoly legislation and determines whether economic entities have dominant positions. The FAS also has the power to sanction abuses of market power in accordance with the articles 14.31–14.31.1 of the Administrative Offences Code.

    Monopoly power

  5. 3.

    What role does market definition play in market power assessment?

  6. The procedure of market definition is an integral part of market power assessment. Market definition is performed in accordance with the FAS Market Assessment Guidelines implemented by the FAS Order No. 220 of 28 April 2010. Application of the Market Assessment Guidelines is required in abuse of dominance cases.

  7. 4.

    What is the approach to market definition?

  8. According to the Market Assessment Guidelines market definition is a twofold process, which essentially requires defining the product and geographical boundaries of a market. Product-wise the market boundaries are established based on the principle of interchangeability, the products in the same market being mutually interchangeable from a customer’s point of view. A market is defined geographically based on the economic viability of the products’ transportation from nearby territories. Habitually the geographical boundaries are established within either the territory of the Russian Federation or its regions or its municipalities. 

  9. 5.

    How is market power or monopoly power defined?

  10. Part 1 of article 5 of the FLPC defines dominant position as position of an economic entity or several economic entities forming a group of persons in a market giving such economic entity (or a group of entities) the power to have a decisive impact on the general conditions of a product’s circulation within the relevant market and/or to drive other economic entities from this market and/or to impede access to this market for other economic entities.

  11. 6.

    What is the test for finding of monopoly power?

  12. The test here would be either the ability to control the conditions of the sale of goods (pricing being the primary example) or the ability to control the presence of competitors in the relevant market. Both of these could be used separately as evidence of an entity’s dominant position.

  13. 7.

    Is this test set out in statute or case law?

  14. This test is set out in the article 5 of the FLPC.

  15. 8.

    What role do market shares play in the assessment of monopoly power?

  16. Market shares provide the principal benchmark in defining whether an entity’s market position is dominant.

  17. 9.

    Are there defined market share thresholds for a presumption of monopoly power?

  18. An economic entity is presumed to be dominant if its market share exceeds 50%. In this case the entity has to provide evidence of lack of dominance in order to avoid being considered dominant.

    35 to 50 per cent

    The company could be proclaimed dominant if its market share is between 35 and 50 per cent. In this case the dominance of such economic entity needs to be established by the antimonopoly service which takes into consideration such factors as:

    • the entity’s market share stability as compared to the shares of its competitors in this goods market; and
    • the barriers to enter into the market for new competitors.

    Less than 35 per cent

    An entity with a market share that is less than 35 per cent cannot be recognised as dominant. However the FLPC allows that under certain circumstances (in certain sectors) dominance with smaller market share could be established.

    The rules of establishing dominance of a financial organisation are set out separately by the government and the FAS uses special type of guidelines in this case. The thresholds are set as following:

    A financial organisation is dominant if its share exceeds 10 per cent in a market thatis the only market in Russian Federation where this entity’s product is traded. If this product is also traded in other markets within Russia the threshold of dominance climbs up to 20 per cent market share.

    According to Federal Law No. 126-FZ ‘On the Communications’ a communications service provider can be deemed dominant if its market share exceeds 25 per cent.

    According to Federal Law No. 35-FZ ‘On the Electric Power Industry’, dominant position is attained where an entity produces more than 20 per cent of electrical energy consumed in a certain territory.

  19. 10.

    How easily are presumptions rebutted?

  20. An economic entity has the right to provide evidence before court or competition authority that the market position of this economic entity cannot be recognised as dominant (part 4, article 5 of the FLPC). However the number of cases where this right was successfully exercised is so small that we could state that this is a dormant rule.

  21. 11.

    Are there cases where companies with high shares have been found not to exercise monopoly power?

  22. There are no cases known to us of an entity with a market share exceeding 50 per cent that successfully argued its way out of being considered a dominant company.

  23. 12.

    What are the lowest shares with which companies have been found to exercise monopoly power?

  24. A company with a market share less than 35 per cent faces the risk of being charged with abuse of dominance if it is a part of a dominant group. In that case a single company’s share is irrelevant.

  25. 13.

    How important are barriers to entry and expansion for the assessment of monopoly power?

  26. If the market share of an entity is in the ‘grey zone’ (35 to 50 per cent) the assessment of the barriers to entry is essential to establishment of the entity’s dominance.

  27. 14.

    Can the lack of entry barriers negate a finding of monopoly power?

  28. The lack of barriers could play a significant role in argument against an entity’s dominance if such entity’s market share is lower than 50 per cent; however, it is highly unlikely that it could serve as a valid rebuttal of dominance presumption when the 50 per cent threshold is exceeded.

  29. 15.

    What kind of barriers to entry are typically considered in the analysis?

  30. The list of barriers is found in the Market Assessment Guidelines but is not exhaustive.

    The barriers to entry into a market include:

    • economic constraints;
    • administrative restrictions imposed by state and local authorities and other bodies;
    • behavior strategy of economic entities operating in the market aimed at creating barriers to entry; and
    • presence of vertically integrated economic entities among the economic entities operating in the market, which leads to the creation of barriers to entry.
  31. 16.

    Can countervailing buyer power negate a finding of monopoly power?

  32. A 2013 case of Evraz – a large Russian-based metal producer – shows that the FAS takes into consideration the buying power in a market. Evraz occupied a dominant position in the Russian rail market and was facing the discrimination charges for setting significantly lower prices for one of their customers – the Russian Railways. In the end the case was dropped because Evraz was able to show the exclusive position of Russian Railways in the rails market – they bought up to 80 per cent of the rails produced by Evraz annually.

  33. 17.

    What if consumers can easily switch between suppliers?

  34. This factor is taken into consideration when the FAS is applying the monopoly power tests and considers the dominance of entities with a market share below 50 per cent.

  35. 18.

    Are there any other factors that the regulator considers in its assessment of monopoly power?

  36. The FAS’ assessment of market power is mainly market share-driven so the invocation of other factors is rare.

  37. 19.

    Are any entities or sectors exempt from the antimonopoly regime?

  38. The provisions of antimonopoly legislation are applied to all sectors. However, antimonopoly legislation does not apply to the services of attorneys at law and notaries as there is an ongoing debate over whether the provision of such services constitutes business activity.

    The FLPC also exempts the situations where conduct reviewed by the FAS constitutes enjoyment of intellectual property rights.

  39. 20.

    Can companies be deemed to hold collective monopoly power?

  40. Part 3 of article 5 of the FLPC provides the following conditions for rendering companies collectively dominant:

    • the combined share of no more than three economic entities exceeds 50 per cent;
    • the combined share of no more than five economic entities exceeds 70 per cent;
    • the smallest share of each entity is not lower than 8 per cent.

    The basic prerequisites of establishing a collective dominant position are the relative stability of shares for a considerable period of time, high barriers to entry to the market and inelastic demand.

  41. 21.

    Can the exercise of joint monopoly power or tacit oligopolistic collusion be treated as an infringement?

  42. Such actions on behalf of collectively dominant entities are likely to be considered as instances of abuse of dominance by each of them.

  43. 22.

    Has the competition authority published guidance on how it defines markets and assesses market power?

  44. See question 3.

    Abuse of monopoly power

  45. 23.

    Is there a general definition for what constitutes abusive conduct? What does it entail?

  46. The abusive conduct is defined through its anti-social repercussions in the article 10 of FLPC. According to it, an abuse of dominance is an action (lack of action) that leads to (may lead to) prevention, restriction or elimination of competition and/or infringe upon the business interests of others.

  47. 24.

    What are the general conditions for finding an abuse?

  48. The obvious condition for abuse of dominance case is the establishment of dominance of the supposed violator. Then the evidence of existence of at least one of the repercussions mentioned in the previous item is required.

    The competition authority has to take into consideration any evidence of the lack of fault on the defendant’s side. Under the Administrative Offence Code (paragraph 3, article 2.1), an entity is at fault when it fails to apply all the efforts at its disposal to avoid the administrative violation.

  49. 25.

    Is there a list of categories of abusive or anti-competitive conduct in the applicable legislation?

  50. Yes, there is a statutory list of instances of abuse found in article 10 of the FLPC.

  51. 26.

    Is this list open or closed?

  52. This list is open.

  53. 27.

    Has the competition authority published any guidance on what constitutes abusive conduct?

  54. In 2016 the FAS published guidelines on ‘Determining monopolistically high and predatory pricing’. These guidelines describe two methods of monopolistic prices’ analysis: cost-based and comparable markets.

    Additionally there exist a number of sector-specific guidelines: the guidelines on definition of manipulation in the electricity market, guidelines on abuse by property maintenance companies, guidelines on group insurance bundling with consumer loans, guidelines on monopolistic pricing by mobile network operators.

    It is required of rules of non-discriminatory access to natural monopolies’ services and infrastructure to take form of governmental regulations.

  55. 28.

    Is certain conduct per se abusive (without the need to prove effects) and under what conditions?

  56. The conduct set out as abusive in the statute (eg, monopolistic pricing, refusal to deal, discrimination among customers) constitutes a ‘per se’ violation in the sense that the anti-competitive effect of such actions is presumed.

  57. 29.

    To the extent that anti-competitive effects need to be shown what is the standard to demonstrate these effects?

  58. The FAS, in trying to expose the restraint of competition invoked by a violator’s conduct, will look for the signs of the following effects:

    • a decrease in the number of independent market players;
    • economically unjustifiable price increases or decreases;
    • refusal of market players to deal independently; and
    • setting of additional rules of access to goods incompatible with existing legislation.
  59. 30.

    Does the abusive conduct need to harm consumers?

  60.  According to the amendments to the FLPC that entered into force in 2016, the conduct needs to either restrict competition or infringe upon the business interest of any person. Thus the issue of harm to consumers is not of primary importance in the unilateral conduct cases. 

  61. 31.

    What defences are there to allegations of abuses of monopoly power?

  62. If we set aside the cases where a defendant contends the issue of its dominance, we find that the defences in the abuse of dominance cases depend largely on the nature of the alleged abuse. The common defence used in various cases aims at proving that the defendant’s conduct in question is a product of existing objective economic (market) conditions.

  63. 32.

    Can abusive conduct be objectively justified?

  64. The conduct scrutinised by the competition authority as abusive could be found admissible if the alleged violator presents the evidence of its positive effects, such as positive impact on technical advance or economic growth or enhancement of the entity’s ability to compete in the international market or providing customer benefits (article 13 of the FLPC)

    This is only applicable to some of the abuses listed in the FLPC, such as decrease or halt of production, discrimination, restriction of entrance into market.

  65. 33.

    What objective justifications have been successful?

  66. The judicial practice of successfully justifying abusive conduct is scarce enough to claim that there is a lack of guidance on which justifications are more effective and which are less. Potentially any of the defences set forth in the article 13 (see question 32) of the FLPC could be successfully invoked.

  67. 34.

    How is the burden of proof distributed in an abuse analysis?

  68. It is required that the competition authority proves the existence of both dominance and abusive nature of conduct (anti-competitive events or infringement of rights).

  69. 35.

    What are the legal conditions to establish an abusive tie?

  70. The primary conditions for bundling to be considered abusive are:

    • it is established that the unwanted goods or services are not essential to the original subject of the agreement; or
    • there is evidence that the unwanted bundling is forced upon the customer rather than merely offered.
  71. 36.

    What are the legal conditions to establish a refusal to supply or refusal to license?

  72. While refusal to license does not constitute a violation for the reasons described in question 19, a refusal to deal is considered abuse of dominance if the dominant entity expresses its unwillingness or avoids entering into agreement without objective economic reasons.

  73. 37.

    Do these abuses require an essential facility?

  74. Such abuses are attributable to any dominant entity.

  75. 38.

    What is the test for an essential facility?

  76. The essential facility doctrine is not really applied in the Russian competition law. The entities monopolising infrastructure are proclaimed dominant either as a ‘natural monopolist’ based on the statutory definition or as a dominant company based on the FAS’ case analysis.

  77. 39.

    What is the test for exclusivity arrangements?

  78. The kind of exclusivity arrangements prohibited by the FLPC are the ones which prevent the customer from buying the seller’s competitor’s goods. The entity’s dominant position is not necessarily relevant in this case.

  79. 40.

    What is the test for predatory pricing?

  80. The predatory pricing is lowering or elaborately keeping the price at a level below costs or below the level of prices in a comparable market.

  81. 41.

    What is the test for a margin squeeze?

  82. The margin squeeze is not effectively named as a separate kind of abuse in the FLPC so if such a case arises it is likely that it will need showing that such conduct actually leads or may lead to restriction of competition and driving out competitors could serve as a sign of such restriction.

  83. 42.

    What is the test for exclusionary discounts?

  84. The discounts by a dominant entity are generally perceived as a part of pricing, so the FAS considers the price of the product after applying the discounts and such price may show to be predatory or indicative of discrimination among customers. However, it is likely that such conduct would take an extensive analysis of its effects and would not be a ‘per se’ violation.

  85. 43.

    Are exploitative abuses also considered and what is the test for these abuses?

  86. Yes, excessive and predatory pricing are both prohibited. The two tests employed under the FLPC are a cost-based test and a comparable markets test.

  87. 44.

    Is there a concept of abusive discrimination and under what conditions does it raise concerns?

  88. Abusive discrimination is expressly prohibited by the FLPC. It potentially encompasses every instance of dominant entity’s dealing with its customers under different conditions if such different treatment is not justifiable. It is worth noting that the relations within integrated company groups are subject to the same rules so the dominant entity could not use favourable conditions for the companies of its own group.

  89. 45.

    Are only companies with monopoly power subject to special obligations under unilateral conduct rules?

  90. Yes, monopoly power is a condition for application of unilateral conduct rules. However, an entity could not be dominant on its own and still be subject to the named obligations if it is a part of a dominant group.

  91. 46.

    Must the monopoly power exist in the same market where the effects of the anti-competitive conduct are felt?

  92. There is no rule that requires FAS to prove that monopoly power exists in the same market where the anticompetitive effect takes place. In practice the FAS may take the negative effects on other markets into consideration in the abuse of dominance case, however the main evidence is that of anticompetitive effect or of infringement on interests in the market where the dominant entity exercises its monopoly power.

    Sanctions and remedies

  93. 47.

    What sanctions can the competition authority impose or recommend?

  94. Administrative liability for the abuse of dominant position is set within the articles 14.31 and 14.31.1 of the Administrative Offences Code. The FAS has the power to impose the following sanctions:

    • fines with fixed limits rates (applied to both legal entities and officials);
    • fines as a percentage of annual turnover (applied to legal entities); and
    • disqualification (applied to the entity’s officials in cases of reoccurring offences).

    If an entity’s conduct does not prove to have adverse effects onto competition in any market a turnover-based fine cannot be applied.

    An alternative compensatory means that the FAS employs is the collection of the violator’s illegal income, which is the income that the violator received from the sales of the product that involved the abuse of dominance.

  95. 48.

    How are fines calculated for abuses of monopoly power?

  96. The turnover-based fine is calculated as a percentage of turnover from the sales made in the market of the violation during the year precedent to the year when the antimonopoly case was initiated.

    The formula for calculating of the basic fine is the following:

    Basic fine MinFine (MaxFine – MinFine) / 2

    If the amount of revenue from the sale of goods is not more than 75 per cent of the total amount of revenue:

    MinFine = 1 per cent, MaxFine = 15 per cent of the revenue.

    The basic fine is 8 per cent of the revenue.

    The size of the basic fine is reduced by 1.75 per cent for each mitigating circumstance found in the case and increased by 1.75 per cent for each aggravating circumstance.

    For mono product companies, which derive more than 75 per cent of their total revenue from the market where violation was committed, a different set of percentage applies:

    MinFine = 0.3 per cent, MaxFine = 3 per cent of the revenue.

    The basic fine is 1.65 per cent of revenue.

    The size of the basic fine is reduced by 0.3375 per cent for each mitigating circumstance and increased by 0.3375 per cent for each aggravating circumstance.

  97. 49.

    What is the highest fine imposed for an abuse of monopoly power?

  98. The FAS fined 'Gazprom Neft' for 4.675 billion roubles, the LUKOIL Group – to 6.54 billion rubles, 'Rosneft' – to 5.28 billion roubles, TNK BP – at 4.197 billion roubles in a single case of collective dominance abuse in the markets of motor gasoline, aviation fuel and diesel fuel in the first half of 2009. These companies were found to have created discriminatory conditions for independent participants in the wholesale market of oil products.

  99. 50.

    What is the average fine imposed over the past five years?

  100. The FAS does not provide the statistics on the average amount of fines collected; however, it is common for the fines to be in the vicinity of the basic fine according to the formula above, meaning 8 per cent or 1.65 per cent for mono product companies.

  101. 51.

    Can the competition authority impose behavioural remedies?

  102. The FAS imposes behavioural remedies most frequently in order to stop the unlawful conduct and prevent it in the future.

  103. 52.

    Can it impose both negative and positive behavioural obligations?

  104. It does impose both negative and positive obligations, sometimes in the form of instructions which can be rather specific, such as providing formulas for price setting.

  105. 53.

    Can the competition authority impose structural remedies?

  106. According to the article 38 of the FLPC the FAS can go to court and initiate a procedure of structural division of entities that systematically abuse their dominant position. However, this is considered dormant law as it has never been employed by the FAS.

  107. 54.

    Can companies offer commitments or informal undertakings to settle concerns?

  108. The competition law does not provide for such measures as commitments. A company’s actions to stop the unlawful conduct are to be counted as a mitigating circumstance at the fine calculation stage.

  109. 55.

    What proportion of cases have been settled in the past five years?

  110. The settlement of cases is only possible at the stage of the appeal against the FAS’ decision in court and needs to be approved by the court. The settlement is still a very rare instance; usually there are only a few cases each year and the number is insignificant compared to the total of cases that the FAS initiates.

  111. 56.

    Have there been any successful actions by private claimants?

  112. There were a number of private claims that were successful in courts. It should be noted that an FAS decision confirming the fact of a competition law violation is an essential part of a successful court claim for damages. Another crucial part of obtaining favourable judgement in claim for damages is establishing that the competition law violation is the only cause of damages suffered.

    Appeals

  113. 57.

    Can a company appeal a finding of abuse?

  114. An appeal against the FAS decision can be filed with court within three months from the date of the decision.

  115. 58.

    Which fora have jurisdiction to hear challenges?

  116. According to the FLPC an appeal against an FAS decision can be filed only with the Commercial Court.

  117. 59.

    What are the grounds for challenge?

  118. There are two principal grounds for challenge of the FAS decision on a competition law violation and it needs to be proved that both these grounds exist or else the appeal shall be dismissed by the court:

    • the contested decision is unlawful and unfounded; and
    • the contested decision infringes upon the business interests of the appellant.
  119. 60.

    How likely are appeals to succeed?

  120. According to the Deputy Head of the Russian Federation Competition Authority, approximately 96 per cent of FAS decisions were successful for the FAS in court.

    Topical issues

  121. 61.

    Summarise the main abuse cases of the last year in your jurisdiction.

  122. Google is fined for abuse of dominant position

    On 14 September 2015 the FAS found Google in abuse of its dominant position in the market of mobile application stores.

    The mandatory pre-installation of certain applications and priority settings for its search engine that Google required from mobile devices manufacturers was considered to constitute abusive conduct.As a result Google was ordered by the FAS to amend its existing agreements in compliance with the competition law and was fined 438 million roubles.

    By this time the FAS’ decision has been upheld by the courts of two instances.

    Largest Russian metal producers are suspected in violations of the antimonopoly law

    The FAS initiated an investigation against EVRAZ, Severstal, Chelyabinsk Metallurgical Plant due to alleged setting of monopolistically high prices. This case is an illustration of abuse of collective dominance.

    According to the FAS, the analysis of prices set by trade agents has shown a growth by 34 per cent and 103 per cent respectively in prices of reinforcement bars manufactured by EVRAZ and Severstal in the period of January through April 2016. The price of similar product manufactured by Chelyabinsk Metallurgical Plant rose by 70 per cent in the period of December 2015 to May 2016.

  123. 62.

    What is the hot topic in unilateral conduct cases that antitrust lawyers are excited about in your jurisdiction?

  124. The register of dominant entities previously used by the FAS for reference on companies with dominance has been abolished since the beginning of 2016, which means that the dominant position of an entity is to be established on a case-by-case basis. It is expected now that the quality of economic analysis shall grow especially with courts taking closer look at the economic substantiation when reviewing the FAS’ decisions.

  125. 63.

    Are there any sectors that the competition authority is keeping a close eye on?

  126. Habitually the FAS scrutinises the sectors which have an immediate impact on consumer welfare. In terms of dominance the primary concern of the competition authority is focused on natural monopolies (electric grid, railway infrastructure, etc). Also pharmaceuticals industry, road fuels and telecommunications industry are closely monitored by the FAS.

  127. 64.

    What future developments can we expect?

  128. At the beginning of the 2016 the IV Antimonopoly Package came into force; however, further alterations to competition law are being discussed currently. One of the most pressing issues is the extension of the competition law to cover the intellectual property related transactions. Currently the FLPC contains an overall exemption of the IP-related unilateral actions. In the past five years there were a number of high-profile court cases that tackled the question of which actions could be considered IP-related and which could not.

    At the moment there is a strong initiative to lift the existing exemption of intellectual property from the scope of the abuse of dominance rules. Presumably, such move will require additional regulation in order to acknowledge the peculiar status of IP rights as a means of incentivising the development of technology.

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Questions

    Overview

  1. 1.

    What is the legal framework governing unilateral conduct by companies with market power?


  2. 2.

    What body or bodies have the power to investigate and sanction abuses of market power?


  3. Monopoly power

  4. 3.

    What role does market definition play in market power assessment?


  5. 4.

    What is the approach to market definition?


  6. 5.

    How is market power or monopoly power defined?


  7. 6.

    What is the test for finding of monopoly power?


  8. 7.

    Is this test set out in statute or case law?


  9. 8.

    What role do market shares play in the assessment of monopoly power?


  10. 9.

    Are there defined market share thresholds for a presumption of monopoly power?


  11. 10.

    How easily are presumptions rebutted?


  12. 11.

    Are there cases where companies with high shares have been found not to exercise monopoly power?


  13. 12.

    What are the lowest shares with which companies have been found to exercise monopoly power?


  14. 13.

    How important are barriers to entry and expansion for the assessment of monopoly power?


  15. 14.

    Can the lack of entry barriers negate a finding of monopoly power?


  16. 15.

    What kind of barriers to entry are typically considered in the analysis?


  17. 16.

    Can countervailing buyer power negate a finding of monopoly power?


  18. 17.

    What if consumers can easily switch between suppliers?


  19. 18.

    Are there any other factors that the regulator considers in its assessment of monopoly power?


  20. 19.

    Are any entities or sectors exempt from the antimonopoly regime?


  21. 20.

    Can companies be deemed to hold collective monopoly power?


  22. 21.

    Can the exercise of joint monopoly power or tacit oligopolistic collusion be treated as an infringement?


  23. 22.

    Has the competition authority published guidance on how it defines markets and assesses market power?


  24. Abuse of monopoly power

  25. 23.

    Is there a general definition for what constitutes abusive conduct? What does it entail?


  26. 24.

    What are the general conditions for finding an abuse?


  27. 25.

    Is there a list of categories of abusive or anti-competitive conduct in the applicable legislation?


  28. 26.

    Is this list open or closed?


  29. 27.

    Has the competition authority published any guidance on what constitutes abusive conduct?


  30. 28.

    Is certain conduct per se abusive (without the need to prove effects) and under what conditions?


  31. 29.

    To the extent that anti-competitive effects need to be shown what is the standard to demonstrate these effects?


  32. 30.

    Does the abusive conduct need to harm consumers?


  33. 31.

    What defences are there to allegations of abuses of monopoly power?


  34. 32.

    Can abusive conduct be objectively justified?


  35. 33.

    What objective justifications have been successful?


  36. 34.

    How is the burden of proof distributed in an abuse analysis?


  37. 35.

    What are the legal conditions to establish an abusive tie?


  38. 36.

    What are the legal conditions to establish a refusal to supply or refusal to license?


  39. 37.

    Do these abuses require an essential facility?


  40. 38.

    What is the test for an essential facility?


  41. 39.

    What is the test for exclusivity arrangements?


  42. 40.

    What is the test for predatory pricing?


  43. 41.

    What is the test for a margin squeeze?


  44. 42.

    What is the test for exclusionary discounts?


  45. 43.

    Are exploitative abuses also considered and what is the test for these abuses?


  46. 44.

    Is there a concept of abusive discrimination and under what conditions does it raise concerns?


  47. 45.

    Are only companies with monopoly power subject to special obligations under unilateral conduct rules?


  48. 46.

    Must the monopoly power exist in the same market where the effects of the anti-competitive conduct are felt?


  49. Sanctions and remedies

  50. 47.

    What sanctions can the competition authority impose or recommend?


  51. 48.

    How are fines calculated for abuses of monopoly power?


  52. 49.

    What is the highest fine imposed for an abuse of monopoly power?


  53. 50.

    What is the average fine imposed over the past five years?


  54. 51.

    Can the competition authority impose behavioural remedies?


  55. 52.

    Can it impose both negative and positive behavioural obligations?


  56. 53.

    Can the competition authority impose structural remedies?


  57. 54.

    Can companies offer commitments or informal undertakings to settle concerns?


  58. 55.

    What proportion of cases have been settled in the past five years?


  59. 56.

    Have there been any successful actions by private claimants?


  60. Appeals

  61. 57.

    Can a company appeal a finding of abuse?


  62. 58.

    Which fora have jurisdiction to hear challenges?


  63. 59.

    What are the grounds for challenge?


  64. 60.

    How likely are appeals to succeed?


  65. Topical issues

  66. 61.

    Summarise the main abuse cases of the last year in your jurisdiction.


  67. 62.

    What is the hot topic in unilateral conduct cases that antitrust lawyers are excited about in your jurisdiction?


  68. 63.

    Are there any sectors that the competition authority is keeping a close eye on?


  69. 64.

    What future developments can we expect?