South Africa’s Competition Commission (the “Commission”) has published the finalised Terms of Reference for its Online Intermediation Platforms Market Inquiry (“OIPMI”). The OIPMI follows the Commission’s release of its “Competition in the Digital Economy” paper wherein it notes the benefits of online products and services but expressed concerns about the ‘winner-takes-all’ nature of some of
Antitrust exaggerated backlash against Big Tech is an attack on principles of free markets
“The nail that sticks out gets hammered down.” That Japanese proverb – typically used to teach conformity – seems to be the approach advocated by U.S. Senator and Democratic presidential hopeful Elizabeth Warren in her recent call to “break up our…
On November 25, 2014, the Ontario Securities Commission (“OSC”) and the Competition Bureau (the “Bureau”, together with the OSC, the “Participants”) announced that they have signed a Memorandum of Understanding (the “MOU”), aimed at developing cooperation and effective delivery of each agency’s respective mandates.
The MOU signifies the acknowledgment of the important relationship between the…
On October 3, 2014, the Commissioner of Competition (“Commissioner”) announced the appointment of Rambod Behboodi as the Deputy Commissioner of the Competition Promotion Branch – the new branch within the Competition Bureau (“Bureau”) that will be created as part of the Bureau’s realignment initiative, where its existing eight branches will be consolidated into four. The…
The South African Competition Commission has recently concluded its investigation into the potential effects on competition of exclusive lease agreements between supermarkets and their landlords. This note explains the implications of the Commission’s decision for firms that rely on exclusive lease agreements.
Arguments for and against exclusive lease agreements
Supermarkets often play the role of…
The principal Canadian competition law theme in 2013, as with the year before, was enforcement. Criminal enforcement in the areas of price-fixing, bid-rigging and misleading advertising continued with new guilty pleas against various companies and individuals (e.g. auto parts, air cargo, chocolate, real estate advisory services contracts, gasoline and retail multiple telemarketing schemes). The Competition Tribunal (the “Tribunal”) released two decisions involving the Toronto Real Estate Board (“TREB”) and VISA and MasterCard that provided significant interpretations of the scope of the abuse of dominance and price maintenance provisions of the Competition Act (the “Act”). The Superior Court of Ontario also released its decision dismissing, in part, the Competition Bureau’s (the “Bureau”) misleading advertising charge against Rogers and Chat-r with respect to the claim of “fewest dropped calls”. Finally, the Supreme Court of Canada granted leave to appeal in Tervita Corporation v Commission of Competition. Five months earlier, the Federal Court of Appeal (“FCA”) upheld the order of the Tribunal requiring Tervita Corporation to divest the Babkirk hazardous waste landfill site in northern British Columbia that it obtained through its acquisition of Complete Environmental Inc.
With respect to private litigation, the Supreme Court of Canada released a trilogy of long awaited decisions in proposed class proceedings brought by indirect purchasers of products alleging competition law violations. The Supreme Court concluded, among other things, that indirect purchasers have a cause of action, resolving a conflict in appellate jurisprudence in Canada. The Supreme Court’s decisions are expected to have a profound impact upon cartel-related class actions in Canada.
2013 also saw John Pecman appointed as Commissioner of Competition on June 12, 2013 for a five-year term. Prior to his appointment as Commissioner, Mr. Pecman held the position of Interim Commissioner from September 2012 to June 2013.
Our Bulletin reports on these and other developments.
The year of 2013 provided further opportunity for development of South Africa’s competition policy, law and practice. The year’s highlights included the conclusion of the Competition Commission’s Fast Track Settlement process involving bid rigging in the construction sector; some important merger decisions; developments in the law on pursuit of private damages; and clarity on numerous procedural matters in enforcement actions. These are elaborated upon further below.
Merger Regulation Trends
324 mergers were notified to the Competition Commission in the period April 2012 to March 2013. This represents an increase of around 10% to the 291 mergers notified in the previous year. Most of these transactions were in the manufacturing 23%, property 27% and mining sectors.
In this most recent period, 85% of mergers were approved unconditionally. 11% were approved subject to conditions (28 behavioural remedies aimed at public interest issues and seven structural remedies); and 4% were withdrawn or dismissed for lack of jurisdiction. No mergers were prohibited.
The Commission continued with a trend we identified last year in protecting and advancing public policy considerations (most notably protection of employment) in its merger analysis. The case of Stefanutti/Enorgotec gave rise to the fastest decision yet by the authorities (reportedly made within four hours of filing of the Commission’s recommendation to the Tribunal) was based largely on the need to protect employment in a firm under severe financial distress.
In Glencore / Xstrata, the Competition Tribunal confirmed an agreement between the merging parties and the National Union of Mineworkers that the number of skilled employees retrenched as a result of the merger would be limited to 80, and the number of semi-skilled and unskilled employees retrenched would be limited to 100. Greater protection was provided for semi-skilled and unskilled workers, who may only be retrenched after two years following a 90 day review period, during which the necessity of the potential retrenchments had to be considered in consultation with the trade union.