Antimonopoly & Unilateral Conduct 2018

Introduction

This guide provides an overview of the competition law principles that govern unilateral conduct in prominent antitrust jurisdictions, including the EU, the US, China, India, Canada, Russia, Korea and Japan, among others. It covers fundamental concepts, rules on specific categories of abuse, and procedural issues. Each chapter is organised as a series of questions to allow readers to compare the practice in different jurisdictions and assess similarities and differences with ease.

Unilateral conduct is perhaps the least stable of the three pillars of competition law. Compared to the prohibition of cartels and prospective merger assessment, unilateral conduct rules attract considerably more controversy. Assessments of “dominance” or “market power” are often challenging (particularly in online markets), competition authorities are willing to push the boundaries of the law by developing novel theories of harm, and there is considerable divergence across jurisdictions. And yet, enforcement is becoming more frequent, with severe financial sanctions.

This guide seeks to help practitioners and companies to navigate these challenges. 

The concept of abuse

There is consensus that competition rules should not hinder companies with market power from competing vigorously “on the merits”. Rather, they should be limited to preventing only the anticompetitive exercise of market power. As former EU Commissioner for Competition, Mario Monti, put it, “in competition the best should win on the merits, but only on the merits” (2004). Similarly, former FTC Commissioner Joshua Wright, observed that, “[t]o reach the conclusion that unilateral conduct is exclusionary and therefore a potential violation of Section 2 of the Sherman Act, a trier of fact must undertake the difficult task of separating bona fide anti-competitive conduct from competition on the merits” (Dissenting Statement in the matter of McWane, Inc (2014)).

This principle, however, does not translate into an easily justiciable set of criteria that can guide companies’ conduct. As the Court of Appeal in the UK observed, the concept of “competition on the merits” is “far from being a legal definition or the expression of a sufficiently hard-edged concept to enable factual situations to be included within it or excluded from it as a matter of law” (National Grid v GEMA (2010)). 

A particular point of contention is to what extent unilateral conduct analysis should follow an “effects-based” or “form-based” approach. To some extent this is a false dichotomy.

On the one hand, effects alone are not necessarily determinative because competition on the merits may have the effect of excluding competitors. As the EU courts have noted, “Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient” (Post Danmark I (2012)).

On the other hand, a form-based approach also relies on economic theories and assumptions about competitive effects of the conduct at issue. If these assumptions are not tested in individual cases, the assessment risks being dissociated from economic reality. As the UK courts noted, it would be “difficult in practical terms to reconcile a finding that conduct had no anticompetitive effect at all with a conclusion that it was nonetheless reasonably likely to have such an effect” (Streetmap v Google (2016)). Nor can a form-based approach offer legal certainty because the categories of abuse are typically not closed. 

Therefore, to avoid the risk of "false positives” (Type I errors), competition authorities need to identify both (i) forms of behaviour that are anticompetitive from the perspective of economic theory and (ii) evidence that these behaviours foreclose competitors in practice.

Novel theories of harm

The issue of legal certainty is a concern in unilateral conduct cases, since competition agencies seek to identify new types of abusive conduct. In the EU, for example, the Commission (often followed by national competition authorities) has taken enforcement action in respect of novel forms of abuse, especially at the intersection of antitrust and intellectual property.

The European Commission has challenged conduct involving making incorrect representations to a patent office (AstraZeneca (2010), seeking injunctions based on standard essential patents against willing licensees (Motorola and Samsung (2014), also addressed by the EU courts in Huawei v ZTE (2015) and the UK courts in Unwired Planet v Huawei (2017)), and making reverse payments in settling patent disputes (Perindopril (2014), also addressed by the UK Competition and Markets Authority in GlaxoSmithKline(2017)). And US courts have addressed the issue of “product hopping” whereby companies seek to obtain a patent on a modified version of a drug that will soon lose patent protection (New York v Actavis (2015) and Mylan v Warner Chilcott (2016)).

There is also a difficulty in seeking to apply long-standing unilateral conduct rules to technology sectors that may not have existed even a few years ago. Germany’s Bundeskartellamt is investigating whether an alleged breach of privacy rules in Facebook’s terms of use could constitute an abuse of dominance. The European Commission recently published a Mid-Term Report on its Digital Single Market strategy, which highlighted the “dual role” of online platform operators that also act as sellers on their own platforms, leading to complaints of unfair treatment of competing third parties. And a number of competition agencies have investigated – or continue to investigate – Google’s conduct in online search, mobile operating systems and online advertising.

The focus on technology is likely to continue. The President of the Bundeskartellamt recently stated that “in the Internet world, we find many companies that are oligopolies. Maybe two or three active in the market… In this scenario, abuse of dominance – unilateral conduct cases – become a very regular focus of our work” (Pre-International Competition Network Forum, 2017).

Globalisation of enforcement…

The emergence of a new group of antitrust agencies that actively enforce rules of unilateral conduct has resulted in companies facing parallel investigations in several jurisdictions at once. Compared to international cartel and merger investigations, the multilateral review of anticompetitive conduct is a more recent phenomenon, but looks likely to continue.

Younger antitrust agencies have shown themselves increasingly willing to challenge conduct in complex cases. In December 2014 South Korea’s KFTC fined LG and KT$4 million and US$1.7 million, respectively, for effecting a margin squeeze. In February 2015, China’s NDRC imposed a fine of US$975 million against Qualcomm, followed by the KFTC, which imposed a fine of $873 million in 2017.  

In the area of standard essential patents (SEPs), Motorola’s exercise of SEPs to seek injunctions has been the subject of a consent decree agreed with the FTC (2013), and a decision of the European Commission (2014). Similar issues have been addressed in India in the course of CCI investigations and court proceedings against Ericsson (2013–2015).

…But divergence of approach

In a global and increasingly interconnected economy, the likelihood of facing multiple parallel investigations is becoming greater. Given the lack of clear and well-established principles for analysing unilateral conduct, this increases legal uncertainty. It invites complainants to forum shop and exploit antitrust proceedings for self-serving ends. And it creates temptations for governments to rely on unilateral conduct rules as a protectionist instrument. Such developments risk turning competition rules against their own objectives. They do not promote competition, but risk chilling healthy competition.

Even between the relatively mature antitrust regimes of the EU and the US, some considerable differences remain in unilateral conduct rules. One example is the duty to supply under competition rules, where the US Supreme Court with its Trinko (2004) judgment set the bar considerably higher. The question under what conditions a company with market power has a duty to assist its rivals and share its assets with them impacts incentives to invest and innovate. The European Commission’s recent prohibition decision in ARA (2017) shows that “failure to supply” is still an active part of EU enforcement practice.

Another critical area is pricing. The judgments of the EU courts in Tomra (2010 and 2012)  and the judgment of the General Court in Intel (2014) suggested a relatively formalistic approach, at least for certain types of pricing practices. The Court of Justice in Intel, though, has changed course, requiring the Commission to analyse all the relevant circumstances where the addressee argues that the conduct was not capable of restricting competition even for cases that are seen as by nature abusive. In the US greater emphasis is placed on the analysis of effects and implications for consumers. A good example is the recent judgment of the District Court of New Jersey in Eisai v Sanofi (2014) where the court held that the mere possibility that a retroactive discount could force a rival to forgo some of its profit margin “does not translate into an injury for antitrust purposes”.

Finally, the concept of “excessive pricing” is an anathema to US antitrust lawyers, but it has become an active area of enforcement in Europe – at least in the pharmaceutical sector. In May 2017, the Commission opened an investigation in alleged excessive pricing by Aspen in relation to cancer drugs, following a finding of infringement by the Italian competition authority. In Pfizer (2016), the UK Competition and Markets Authority imposed a record fine of approximately US$109 million following a finding of excessive pricing, although that judgment was struck down in 2018 by the Competition Appeal Tribunal.

Comments Add your comment

Add Your Comment