Appendix. Selected Abuse of Dominance Statutes

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APPENDIX

SELECTED ABUSE OF DOMINANCE STATUTES

Australia – Trade Practices Act 19741

Year of Enactment / Amen dments:

1974, 1995-96, 1997-98, 2001, 2005

Provisions for Abuse of Dominance:

The Trade Practices Act prohibits a corporation that has a substantial

degree of power in a market from: leveraging such power to

eliminate or substantially damage a competitor or related

corporations; preventing a person from entering any market; or

deterring or preventing a person from engaging in competitive

conduct in any market.2

Provisions f or Attempts to Bec ome Dominant:

The Trade Practices Act prohibits contracts, arrangements, or

understandings made before the Trade Practices Amendment Act of

1977 that have the purpose, effect, or will likely have the effect of

substantially lessening competition.3It also prohibits exclusive

dealing and the acquisition of shares or assets that would result or

likely result in substantially lessening competition.4

Miscellaneous:

The substantial degree of market power, rather than dominance, is

the focus of the act. In determining the “degree of power,” the court

“shall have regard to the extent to which the conduct of the body

corporate...isconstrainedbytheconduct of (a) competitors, or

potentialcompetitors...;or(b)personstowhomorfromwhomthe

body corporate ...suppliesoracquiresgoods or services in that

1. Trade Practices Act 1974 (Cth) §§ 45-47, 50, available at

http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/

03475BFBA45FA9B2CA257007001781A3/$file/TradePrac1974Vol1_W

D02.pdf, (amended 1995-96, 1997-1998, 2001, 2005).

2.Id.§ 46.

3.Id.§ 45(1)(b).

4.Id.§§ 47, 50.

330 Monopolization and Dominance Handbook

market.”5The High Court of Australia ruled that the act does not

articulate a cause of action basedon the essential facilities doctrine.6

Austria – 1988 Cartel Act7

Year of Enactment / Amen dments:

1988, 2000, 2006

Provisions for Abuse of Dominance:

The 2006 amendment aligns Austrian competition law with that of

the European Union.8It also introduces a leniency program and new

merger control thresholds.9Section 35 of the Cartel Act is similar to

Article 102 of the EC Treaty.10 However, it is unlike Article 102

because selling products below purchase price is explicitly referred

to as an abusive practice.11

Provisions f or Attempts to Bec ome Dominant:

None.

Miscellaneous:

If there is a legitimate interest in doing so, the Austrian Cartel Court

is empowered to issue rulings on abusive behavior that ended.

Belgium – Act on Protection of Economic Competition12

Year of Enactment / Amen dments:

2006, 2009

Provisions for Abuse of Dominance:

The act prohibits “any abuse by one or more undertakings of a

dominant position on the Belgian market or in a substantial part of

it.”13

5.Id.§ 46(3).

6.SeeQueensland Wire Indus. v. Broken Hill Party 167 C.L.R. 177 (1989).

7. KARTELLGESETZ 1988 [KARTG 1988] [1988 CARTEL ACT]

BUNDESGESETZBLATT [BGBL] No. 600/1988, § 35, available in English

at http://www.bwb.gv.at/NR/rdonlyres/4E837A92-B3BC-494A-92ED-

833A4613FCCA/0/kartellgesetz_englisch.pdf (amended 2000, 2006).

8.Id.

9.Id.

10.Id.

11.Id.

12. Loi sur la protection de la concurrence économique [Act on the

Protection of Economic Competition] of Sept. 15, 2006, MONITEUR

BELGE, [M.B.][Official Gazette of Belgium], Sept. 26, 2006, 3d ed., ch.

2, art. 3, available in English at http://economie.fgov.be/en/binaries/apec-

new_tcm327-56301.pdf, (amended 2009).