Complying with Competition Law
09
Checklist of key items for preventing abuse of dominance
and other anti-competitive agreements
If a business holds a dominant position in a market, it should
be careful when:
implementing loyalty programmes or exclusivity agreements
with customers
applying different prices and sale conditions to business
customers who are essentially the same in relation to credit
worthiness and volumes purchased
using a product as an incentive for a customer to purchase
another product
selling products or services below cost
refusing to supply a product or service without good reason
entering into joint buying or production agreements
In the case of anti-competitive agreements (other than hardcore
cartels) and abuse of dominance cases, the Competition
Authority will generally try to get the business involved to agree
to stop the anti-competitive behaviour. This may involve for
instance, writing a formal cease and desist letter to the
business, requesting that it stop the anti-competitive behaviour.
Where the anti-competitive conduct has been significant, the
Authority may seek formal undertakings from one or more of
the parties involved and seek to have these undertakings made an
order of court. Where settlement is not possible, the Authority
can apply to the High Court for a declaration that the conduct
is illegal and seek an injunction requiring the business to cease
the illegal conduct. If the Court finds in favour of the Authority,
competitors or customers can take a follow-on action for
damages against the company or companies involved.
All businesses should in general be careful when:
announcing prices in advance, or sharing information that
could be seen as co-ordinating on price and capacity, or
market and customer sharing
making comments that could be viewed as signalling to
competitors on issues such as price, production levels and
trading conditions
making threats or promises regarding price and market
shares
setting minimum resale prices
entering into information, research and development
agreements
entering into joint buying or production agreements
taking collective action such as group boycotts