Competition Policy and Practice in Canada Salient Features and Some Perspectives for India
This article is a study of the salient features of Canadian competition policy so as to provide useful insights for developing countries which have only recently been initiated into the dynamics of competition law and practice. Moreover, with regard to its relatively small market size and in some respects, the federal structure of its constitution, Canada bears some resemblance with India. Competition policy in small market economies is a relevant subject for study simply because most developing countries suffer from the small size of their domestic markets. Small market size and the existence of economies of scale result in a situation where a market for industrial goods can support only a few technically efficient firms. This results in concentrated markets with relatively higher concentration ratios than that is observed in large economies like the US. In small economies the potential scope for anti-competitive practices is likely to be higher.
K V RAMASWAMY
I Introduction
T
Pre-existing Market Structure in Canada
The rationale for having an active competition policy is the prevalence of monopoly or an oligopolistic market structure and the expected anti-competitive conduct of firms in such markets. It is useful to look at the structure of market that prevailed in the Canadian industry on the eve of the adoption of the Competition Act 1986. Market concentration, the degree to which a large proportion of output is controlled by a small number of firms, is a descriptive summary measure of the market structure. What were the salient features of industrial market in Canada in the 1980s? Khemani (1986) attempted to estimate the percentage of Canadian GDP that originated in “effectively competitive”, “government regulated” and “oligopolistic” industries. Oligopolistic industries were identified using the following criteria:
Khemani’s estimates indicated that only 44 per cent of Canadian GDP originated in sectors that can be described as “effectively competitive”, 18 per cent in “oligopolistic” and the remaining 38 per cent was found to originate in government regulated sectors. On a comparative basis the state of competition in Canada has been viewed as weaker than that in the US. This was further supported by an examination of CR4 levels in individual industries. In Canada 34 per cent of manufacturing industries were found to have CR4 levels of greater than 70 per cent in 1980 as compared to only 13 per cent in 1977 (Table 1).4The product level concentration is expected to be higher than that existing at the industry level, as markets are well defined. Available estimates of concentration at the product level showed that 95 per cent of 4,131 products had a CR4 level of more than 50 per cent. More than 70 per cent of the products had a CR4 level of more than 80 per cent. This suggests that a large number of Canadian industries were dominated by a small number of large enterprises in the 1980s. This was an outcome of the relatively small size of the Canadian domestic market. Further, it was found that the average size of the Canadian manufacturing plants are considerably smaller than their US counterparts.5 This supported the Stykolt and Eastman (1960) hypothesis that high tariff, high concentration industries are characterised by sub-optimal plant scale and excessive product diversity.6
Evolution of Competition Policy, Canada7
Canada was the first country to formulate and adopt a competition policy even before the Sherman Act of the US. In 1889 the act for the prevention and suppression of combinations in restraint of trade was adopted. This act of 1889 was a response to a public concern over the pricing practice of organisational groups of companies, technically called combinations or combines. In 1879, Canadian government had put up significant tariff barriers to protect and foster the development of domestic manufacturing base in Canada. The protection from competition created a large scope for a number of agreements to restrain domestic competition. This was particularly manifested in the areas of sugar, coal, agriculture, implements and fire insurance. In these trade associations (referred to as “combines”) like the Wholesale Grocer’s Guild and Coal Section of the Toronto Board of Trade fixed prices, engaged in collusive bidding and tightly enforced their engagements [Trebilcock et al 2002]. The report of the select committee of the House of Commons led to the first legislative act. The act of 1889 made it a criminal offence to conspire or combine to restrain the supply or raise the price of a commodity. An amended version of the act was introduced in 1910 called the Combines Investigation Act. The factors that forced the introduction of this act were a merger boom beginning in 1909 and the advent of sharply rising prices. This act expanded the meaning of combine to include mergers and monopolistic pricing. A serious limitation to the enforcement of the law was the “laws language” and the lack of effective enforcement machinery. Later changes in 1919 were found to be ultra vires as they infringed the provinces domain over civil rights. Several changes were made in 1960 to bring conspiracies, mergers and monopolies under the Combines Investigative Act. In the 1960s and 1970s, several cases made it difficult for the government to defeat an anti-competitive merger, or monopoly, unless the end result was a complete elimination of competition. For example, in the BC Sugar Case (1960), a company had acquired the only competitor in western Canada. In this case the court decided “public detriment” was defined as the “virtual elimination of competition”. The court found that some limited competition from eastern Canada existed and therefore, competition was not deemed to have been virtually eliminated by the merger. In the Irving Case (1976), a case relating to the purchase and control of all-English newspapers in New Brunswick, the government discovered it was not enough to show that there was lessening of competition (as required by the law) but also essential to prove that the lessening of competition was detrimental to the public. Similarly, in the Canadian Breweries Case (1960), the merger of several breweries in central Canada resulted in one firm gaining control; the court ruled that this would not be enough to bring about a violation of the Combines Investigation Act, especially in an industry where prices were regulated. This created an instance of regulated industries defence. In the Aetna Insurance Case (1977), a set of 73 companies was alleged to have conspired to raise prices. The court indicated that 30 per cent of the market was not covered by the agreement meant that ‘competition had not been “stifled”. Evidence of a market operating outside the conspiracy would be sufficient to defeat the argument that competition was lessened unduly. The court suggested that the government must establish that the parties “intended” to lessen competition “unduly”, and concluded that this had not been proven.
The supreme court had determined in the Aetna case, that the government was required to prove not only that the parties intended to enter into an agreement, but also had intended to lessen competition unduly (this came to be known as double intent requirement). This proved to be a heavy burden, relative to the situation in the US, with the virtual per se illegal treatment of the pure price fixing agreements. In 1980, another interesting case came before the court (Atlantic Sugar Refineries 1980). Three sugar refineries representing 90 per cent of the central and eastern Canadian market were alleged to be involved in a marketsharing agreement. The Canadian supreme court again favoured the virtual elimination of market proposition. The term “unduly” meant that the parties to the agreement were “free to carry on those activities virtually unaffected by the influence of competition”.8 This interpretation of “unduly” came to be known as the “virtual monopoly requirement”. Following this interpretation it became very difficult for the government to win any anticompetition case. Consequently, the government, after several aborted attempts to amend the competition law, succeeded in introducing the competition act of 1986.
II Salient Features of Competition Act 19869
The purpose of the 1986 Competition Act (CCA, hereafter) is set out as follows: “The purpose of this act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognising the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.” We may note that the goal of international competitiveness is recognised and that the legislation sees competition not an end in itself but rather as a means to the ends listed above. The objective is clearly to promote efficient markets by protecting competition and not competitors [Ross 2004]. This CCA is applicable to all types of businesses in Canada and most of the economic activities in Canada fall within the scope of the CCA. Activities, which are exempt from some or all of the provisions of the competition legislation, include collective bargaining activities, travel agents, underwriting, and amateur sport and export agreements. Therefore, CCA is applicable to the banking sector as well as government-owned enterprises that are in commercial activity. It is applicable to all commercial activities of Canada government to the extent that it would apply if they were not government agents (referred to as crown agents in Canada). There are no provincial competition laws other than laws for consumer protection dealing with misleading or deceptive marketing practices. This differentiates Canada from the US where many states have their own competition laws. It has criminal as well as civil provisions. The main change in 1986 CCA was to move mergers and monopolisation activity to the civil side of the act. This act removed the need to prove that “intent is to remove competition unduly”. The supreme court suggested that the second intent could be proved by reference to what a reasonable businessperson would have expected from the conduct in question.10
Enforcement Institutions
The investigative and adjudication of alleged violations of the CCA are vested in separate agencies. The investigation and enforcement of the CCA is the responsibility of the commissioner of competition. The commissioner and his staff operate as the competition bureau (CB, hereafter). They are part of the Federal Department of Industry, Canada. The competition tribunal is constituted as a civil court empowered with exclusive jurisdiction to hear and determine applications concerning non-criminal reviewable cases. However, only the commissioner has the sole discretion to decide whether to bring an application before the competition tribunal. An exception is the specialisation agreements, which can be brought by any individual. The commissioner will refer all criminal matters to the attorney general of Canada. The decisions rendered by the competition tribunal may be appealed to the federal court.
Scope
It is useful to mention the criminal and civil provisions in detail as it clearly illustrates the range of the Canadian competition law. It is important to note in the beginning that the prohibited practices as listed under criminal practices such as horizontal agreements, bid-rigging and other types of cartel like behaviour are not applicable if they relate to export of products/services from Canada.
Table 1: Cumulative Distribution of Canadian Industries by CR4 Levels
CR4 Levels in 1980 Number of Percentage of Percentage of Total Industries Industries Value of Shipments
Greater than 80 per cent 18 10.7 11.8 Greater than 70 per cent 40 23.7 23.3 Greater than 60 per cent 60 35.5 36.2 Greater than 50 per cent 78 46.2 46.6 Total 169
Source: Extracted from Khemani (1986), Tables 3-6, p 186.
Prohibited conduct (criminal practices)11: Under the Competition Act 1986, it is a criminal offence to conspire, agree, or arrange to prevent or lessen competition unduly in an industry. The attorney general of Canada prosecutes them in the courts.
Civil Reviewable Practices
This includes practices not considered inherently anticompetitive or pro-competitive; therefore they are not illegal.
its downstream product is unduly low. This is an anti-competitive act as this action squeezes rivals downstream.
(iii) Other provisions:12 They relate to (a) refusal to deal;
III Selected Key Issues
Abuse of Dominance
The provisions of abuse of dominance focus on conduct and behaviour of individual dominant firms. It refers to predatory, exclusionary or anticompetitive behaviour which adversely affects competitors (actual or potential rivals) and which lowers social welfare [Church and Ware 1998]. Three basic elements of abuse of dominance are (a) market power (b) conduct and
(c) effects. In situations when the provisions of the abuse of dominance are alleged to be violated the competition authorities need to show that the defendant controls wholly or substantially a class of/or species of business. Here the CB interprets “control” to mean “market power”. Market power is the ability to profitably maintain prices above competition levels or restrict non-price aspects of competition for a significant period of time. That period is usually taken to be one year. The CB presents no particular market share test. However, a firm with a market share of below 35 per cent and a group with a collective market share of 60 per cent are unlikely to be considered dominant [OECD 2002]. The lowest level of market share reported in contest cases is 87 per cent. After the fact of “control” is established there must be a “practice of anti-competitive acts”. The CCA provides a nonexhaustive list of such practices as we noted above. Finally, these acts must be shown to prevent or lessen competition substantially. The CCA gives the competition tribunal discretion to make orders where merely prohibiting the practice is not likely to restore competition in the relevant market. Under the CCA provisions the tribunal may make an order directing any or all persons against whom an order is sought to take such actions, including the divestiture of assets or shares, as are reasonable and as are necessary to overcome the effects of the practice in that market. The CB has issued enforcement guidelines on the abuse of dominance provisions (EGAD) based on economic and case law. It explains the principles the bureau applies in the alleged abuse of dominance violations. The EGAD states, “The abuse provisions establish the bounds of competitive behaviour for dominant firms and provide for corrective action where such firms go beyond legitimate competitive behaviour in order to damage or eliminate competitors so as to maintain, entrench, their market power” [Competition Bureau 2001:1]. Further, in determining the market power and the abuse of dominance issue, the CCA requires the competition tribunal to consider whether the practice under question is a result of superior competitive performance. This may be interpreted to suggests that the tribunal, if it desires, trade off any efficiency gains from the anticompetitive practice against the possible adverse effects on competition.
During the period between 1986 and 2001, the tribunal had issued six decisions finding abuse of dominance, four of them were contested. After a careful analysis of the competition tribunals approach in these cases, Trebilcock et al [2002] pointed out three general principles that govern the Canadian approach to abuse of dominance cases: (i) each case is decided on its facts;
(ii) an anticompetitive act must involve a predatory, exclusionary, or disciplinary intent; and (iii) subjective intent need not be proven but may be inferred from the circumstances.14 The competition tribunal has suggested that it may be apt to speak of the overall character of the act in question rather than intent. This explains the role of intent in distinguishing efficiency motivated acts from anticompetitive acts.
Special Case of Airline Industry
The airline industry in Canada presents an excellent example of dilemmas of competition policy. Canada liberalised its airline regulations in the 1980s. Its key measures were relaxed entry into markets, elimination of licence restrictions on frequencies and aircraft types and the introduction of freedom to discount tickets prices particularly in southern Canada [Anderson et al 1998]. The National Transportation Act of 1987 further liberalised entry and tariff regulations. This intensified competition during the next ten years adversely affected one of the Canada’s two major airlines, namely, Canadian Airlines. The other major airline is Air Canada. Intense competition between these two national airlines left them bleeding, losing millions of dollars during years of recession that affected travel industry. In 1992, attempts to merge these two airlines started. In 1992, Canadian Airlines accepted a merger proposal from Air Canada. However, Air Canada backed out fearing the $7.7 billion debt that the merged firm would have to bear. The prospect of merger resurfaced again only in August 1999. At this point, the federal government forced a merger by suspending the competition act in order to facilitate negotiation between the two airlines. The Canada Transportation Act (Responsible for Transport and Air Policy of Canada), suspended the CCA for a period of 90 days that is considered “essential to stabilise the national transportation system”. This was done by the federal government notwithstanding the provision in the national transportation policy that stated clearly that nothing done under the Transportation Act affects the application of the CCA [OECD 2002].
On December 23, 1999, the two airlines merged creating a near monopoly in the Canada airline services industry (or a single dominant carrier). This merger was forced on the industry because of the fear of job losses (estimated 16,000) in Canadian Airlines and the associated high political cost to the ruling party. This further raised questions on the possible abuse of dominance due to the market power of a single national airline. Does Canada need sector-specific rules to combat possible abuse? The minister for transport requested the CB for its views on this vexed question. At the same time the minister ruled out relaxing of rules of foreign airline entry into intra-Canada routes as a possible solution. This situation finally led to legislation and amendment of the CCA to incorporate airline-industry-specific rules on anti-competitive acts. The new regulations specify “anti-competitive acts” explicitly [OECD 2002]. They are: firstly, denial of access to certain essential facilities by a domestic airline and secondly, conduct that would be considered predatory or exclusionary. The CCA used the concept of “avoidable cost” in this context to describe anti-competitive acts in the airline industry. According to this amendment, if a dominant airline operates a route at fares that do not cover the avoidable cost of service then it will be considered an anti-competitive act. The amendment makes the competition commissioner not the minister of transport the person responsible for enforcing the sector-specific rules.
These new rules were soon tested before the competition tribunal as the CB received complaints from two other airlines (WestJet and Canjets) that Air Canada was indulging in predatory behaviour. The first complaint was from Westjet that Air Canada responded to its entry into the Atlantic Canada market by adding significant capacity and matching or undercutting WestJet fares. The second inquiry concerns CanJets complaint that Air Canada abused its dominant market position in its pricing response to CanJets entry in September 2000 by reducing its fares in an anticompetitive fashion. CanJet filed for an inquiry under section 9 of the Competition Act. The CB began its investigation on September 28, and on October 12, 2000, the commissioner of competition issued a temporary order against Air Canada, requiring it to withdraw certain discount fares on five routes in eastern Canada. On October 30, the commissioner extended the order for an additional 30 days, but limited its scope to three routes. This was the first instance the order was used by the bureau under the new legislation [Competition Bureau 1999-2000]. In February 2001, the CB issued the draft of enforcement guidelines for the abuse of dominance in the airline industry.
In March 2001, the CB asked the tribunal for an order prohibiting Air Canada from engaging in anti-competitive practice directed against low cost carriers, namely, Westjet and Canjet. The tribunal found that Air Canada had “operated or increased capacity fares that did not cover the avoidable costs of providing the service on specific routes. The interim finding did not deal with the question of whether Air Canada had abused its dominant positioning in an anti-competitive manner. This will be resolved in the second stage of the hearing” [Competition Bureau 200203]. Meanwhile, Air Canada’s problems multiplied with the accumulation of debt totalling $ 12 billion, part of it inherited from its forced merger with the Canadian airlines. Air Canada was also burdened with surplus employees due to its merger. In August 2003 Air Canada filed for bankruptcy protection. This forced the competition tribunal to stay its decision and wait until Air Canada emerges from the bankruptcy [Competition Bureau 2003-04].
The airlines industry case illustrates the pitfalls of forced attempts to create national champion or strategic firms of large scale to get competitive advantages. More important is the necessity of empowering competition authorities to deal with sector-specific anti-competitive acts. This issue spills over into the issues of interface between competition and sectorspecific regulators.15
Mergers
Merger enforcement guidelines (MEG) were first issued in 1991 and recently a draft of the revised guidelines is published for comments from the public [Competition Bureau 2003-04]. The Canadian merger provision has three interesting features. First, market share concentration ratios are not the sole basis for determining merger impact of “lessens competition substantially” and offer safe harbour provisions. A merger will not be challenged if the merged firms’ share will be less than 35 per cent. Second, other factors that need to be considered are: the extent of foreign competition, barriers to entry, the extent of remaining competition, the extent of change and innovation in the market. Third, the CCA allows for efficiencies defence. A proposed merger that reduces competition may be allowed to proceed if that loss is offset by efficiency gains. Both quantifiable (loss in consumer surplus) and non-quantifiable efficiencies (dynamic efficiencies) are taken into consideration [McFetridge 1998]. The CB’s 1991 guidelines interpreted the guidelines in term of “total surplus” standard. This is also known as Williamson or Aggregate Welfare (AGW) approach following Williamson (1968). This standard accepts any merger that increases the sum of producers and consumers surplus. This has led to some complications in recent years. Further, the CCA requires the merging firms to notify the CB in advance if size-based thresholds are met. In the first threshold, the total combined (acquirer and the acquired entity) Canadian assets (or sales) must be over C$ 400 million. The second threshold applies to the size of the acquired entity (C$ 35 million enhanced to C$50 million recently). Then the commissioner decides whether to issue consent order or to challenge the merger.
Two interesting merger cases may be worth noting. The first is called the ABB case (1989). This refers to the acquisition of the Canadian electrical power transmission and distribution equipment of Westinghouse (US multinational) by ABB (Swiss multinational). This would have reduced the number of domestic manufacturers of power transmission to one (in transformers with greater than 400 mva) and to two (in the category 40 to 400 mva). The bureau gave consent to this merger on the condition that ABB should get accelerated tariff reduction for imports from the US and the tariffs on power transformers would decline to zero in three years. In other words the consent order is based on the expected substitution of import competition for a reduction of domestic competition due to merger [McFetridge 1998].
The second case is known as the Superior Propane case that was taken up by the competition authority in 1998. Superior Propane and ICG Propane were engaged in the retail sale and distribution of propane and the provision of related services. They were the only two companies that supplied propane to endusers across Canada. In 1997, Superior Propane had 130 and ICG Propane had 110 branches across Canada. Superior Propane acquired ICG in December 1998. The CB challenged the merger and applied to the competition tribunal stating that it would substantially prevent or lessen competition. However, the tribunal decided that the merger was justified because the merger resulted in “efficiencies” that offset the monopoly power and the higher price. The tribunal found that the merger would substantially lessen competition in 66 of 74 local markets for the supply of propane. In another 16 markets, the merged entity would have a near monopoly with a market share ranging from 97 to 100 per cent. However, the tribunal interpreted the efficiency effects using the “total surplus standard” defined as the sum of consumer and producer surplus. The “deadweight loss” to consumers is balanced against the income gains to the producers due to efficiency. As the estimated efficiency gains exceeded the loss to consumers, the tribunal decided that the merger should be allowed to take place. The bureau disagreed with the tribunal’s decision and appealed to the federal court of appeal. The bureau argued that purpose clause of the CA 1986 and the interpretation of efficiency “effects” go against the tribunal’s approach. The CCA 1986 stated that the efficiency gains should be balanced against “the effects of any prevention or lessening of competition” (section 96.1). The federal court ruled, in April 2001, that the tribunal’s interpretation of section 96 should have considered a wider range of effects and had regard for the purposes of the CCA. The matter was sent back to the tribunal for a re-determination hearing. The tribunal in April 2002 again dismissed the commissioner application. The commissioner again appealed against this decision to the federal court of appeal on the following grounds: the tribunal had erred by not including all the effects of lessening of competition, including the entire wealth transfer; refused to consider the effects from a qualitative perspective; adopted a restrictive view of the effect of the merger on small and medium-sized businesses; did not consider the creation of a monopoly per se as an anti-competitive effect in the subsection 96(1) analysis; did not respect the judgment of a higher court; and erred in its allocation of the onus of proof. In 2003, the federal court dismissed the commissioner’s application and accepted the tribunal’s methodology. The dissenting opinion held that subsection 96(1) did not authorise the creation of monopolies [Competition Bureau 2002-03]. Finally in March 2003, the bureau announced that it would not appeal the federal court’s decision but would support legislative change to ensure that the competition tribunal considers only the efficiencies created in an anti-competitive merger when they are of benefit to consumers. The Superior Propane case suggests the difficulties of protecting the consumer interests in the face of inappropriate and controversial interpretation of “efficiency gains”. It is important to recall that the total surplus implicitly assumes that the gainers can potentially (hypothetically) compensate the losers (the Hicks-Kaldor compensation criterion of welfare economics). The issues of welfare, familiar to economists, raised by possible actual compensation are ignored.
Horizontal and Vertical Agreements
As we noted above the CCA 1986 prohibits anti-competitive horizontal agreements such as collusive price fixing and vertical restraints such as resale price maintenance and exclusive dealing. At the same time the CCA clearly lists the subject matter of agreements exempted under this act; (a) the exchange of statistics;
(b) the defining of product standards; (c) the exchange of credit information; (d) the definition of terminology used in a trade, industry or profession;(e) cooperation in research and development; (f) the restriction of advertising or promotion, other than a discriminatory restriction directed against a member of the mass media; (g) the sizes or shapes of the containers in which an article is packaged; (h) the adoption of the metric system of weights and measures; or (i) measures to protect the environment. This long list has not mitigated the fears of misapplication in cases of strategic alliances.16 It is argued that not all cooperation between competitors is anti-competitive and the business sector has preferred to form strategic alliances, usually in the form of a joint venture and involving less integration than a full-blown merger. These horizontal agreements typically provide for formal supply arrangements, access to technologies, distributional channels or collaboration on research and development. These agreements are widely believed to create efficiencies, particularly in network industries. Strategic alliances largely pro-competitive may be afforded criminal or civil treatment under the CCA. Many witnesses, including the commissioner of competition, admitted before the parliamentary committee that pro-competitive strategic alliances might be inadvertently caught by the conspiracy category of horizontal agreements. The risk of greater weight given to structural considerations (market share or concentration) instead of behavioural analysis is always present. This possibility could be having a significant chilling effect on the businesses attempting strategic alliances that are otherwise pro-competitive. Recently the CB has invited public opinion on amending the criminal provisions that are inimical to beneficial strategic alliances [Competition Bureau 2002-03].
Predatory Pricing
Predatory pricing is a criminal offence under section 50(1)(c) of the CCA. Several elements must be established before an offence is proven. The alleged predator must be engaged in a business and have adopted a policy of selling products at prices that are unreasonably low. Between 1994 and 1999, the CB received 931 complaints about alleged unfair pricing practices, such as predatory pricing, price discrimination and price maintenance. Only a fraction of them were subject to formal inquiries and litigation. In 1999, the bureau asked two independent experts to do an in-depth study of anti-competitive pricing provisions.17 This report referred to as Vanduzer report suggested shifting predatory provisions to the civil reviewable practices from the criminal offence section among other recommendations. One of the authors of this report is reported to have observed, “Predatory pricing … is really by far the most difficult kind of anticompetitive behaviour for which to work out appropriate rules. The basic provision in the act currently is a criminal offence, and ... I think the main problem with that provision is that it’s very vague. It’s not at all clear what unreasonably low pricing means. We’ve had very few cases that have interpreted the provision to provide us with any guidance as to exactly what the provision means. The consequence is it’s very difficult to use this provision as a reliable guide to distinguish aggressive competition that results in the reduction of prices from predatory pricing’, (Anthony VanDuzer, cited in the ‘Interim Committee Report’, government of Canada 2001). In brief the CCA provisions related to predatory and price discrimination remains unchanged and have been much less used in practice. Consultations with the stakeholders have been initiated to repeal the criminal provisions in 2003.
Cross-Border Issues
What action can be taken against anti-competitive practices when the origin of such practices is found to be located outside the territorial borders of an economy? Fighting international agreement had taken place in Canada.18 As spelled out by the cartels has assumed greater importance for competition authori-CB authorities, “It applies where a company doing business in ties in developed countries [Evenett 2002]. Canada is no excep-Canada (wherever incorporated) implements any directive, tion. The CB is increasingly driven to investigate trans-national instruction, intimation of policy or other communication from firms and transnational conduct. Section 46 of the CCA deals a foreign person who is in a position to influence the company, with the criminal actions of businesses in Canada that implement where the purpose of the communication is to give effect in conspiracies or arrangements with persons or corporations out-Canada to a foreign conspiracy. There is no need to prove that side Canada. Canada has followed a policy of asserting extra-any officer or director of the company in Canada had knowledge territorial jurisdiction. In other words, Canada claims jurisdiction of the conspiracy” [Chandler and Jackson 2000]. This approach over agreements reached outside Canada’s territory if they are has resulted in several guilty pleas [OECD 2002]. Some found to have substantial connection to competition in Canada. recent successful cross-border cases are described in Table 2. It The connection is established by the argument that those agree-is pertinent to note that the firms found guilty spread across ments would have violated anti-cartel laws of Canada if such countries including the US, Japan, Germany, Luxembourg,
Table 2: Some Recent Successful Cross Border Cases: Canada
Year Description of Case
2000-01 • In July 2000, SGL Carbon Aktiengesellschaft pleaded guilty to participating in an international conspiracy to fix prices and allocate markets for graphite electrodes. Graphite electrodes are used primarily in the production of steel in electric arc furnaces, the steel making technology used by all mini-mills. SGL was fined $12.5 million. SGL’s conviction followed the March 1999 conviction of UCAR Inc ($11 million fine) for its participation in the same conspiracy. SGL and the other members of the cartel agreed to restrict their production capacity, to fix the prices they would charge and allocate the volumes they would sell of graphite electrodes in world markets. As a result of the international cartel, a regime of uniform pricing existed between the two main suppliers of electrodes to the Canadian market, UCAR and SGL, and alternative supply sources were eliminated. It is estimated that over the course of this conspiracy, from May 1992 until June 1997, graphite electrode prices in Canada increased by more than 90 per cent.
2001-02 • In July 2001, an investigation by the CB into the food industry led to the conviction of Japan-based Ueno Fine Chemicals Industry (UFCI) on charges of participating in an international price fixing and volume allocation conspiracy. The company was fined $1,250,000, while one of its former senior executives was fined $1,50,000 for his part in the conspiracy. The investigation revealed that UFCI was involved in an international price fixing and market sharing conspiracy for more than 17 years, affecting price levels of preservatives used in the food industry.
• In October 2001, an international investigation of the food preservative industry by the Bureau, led to the conviction of US based Pfizer. The company pleaded guilty to a price-fixing charge and was fined $1.5 million. The CB’s, investigation revealed that Pfizer was involved in an international price fixing conspiracy from 1992 to 1994, whereby prices were fixed for sodium erythorbate, a food preservative agent.
2002-03 • In October 2002, Degussa AG of Germany, Lonza AG of Switzerland, and Nepera and Reilly Industries of the US pleaded guilty to participating in an international conspiracy to fix prices and allocate market shares of vitamin B 3 sold in bulk in Canada between 1992 and 1998. Kumo Sommer, a Swiss national and former executive at Hoffmann-La Roche, a Swiss corporation, also pleaded guilty to participating in a number of conspiracies involving bulk vitamins between 1991 and 1997. The federal court of Canada imposed fines totalling $3.875 million on the companies and $1,50 000 on the former executive. Since September 1999, Canadian courts have imposed a total of approximately $95.5 million against companies and individuals involved in bulk vitamin conspiracies.
2003-04 • In August 2003, Akzo Nobel Chemicals and Bioproducts pleaded guilty in the federal court of Canada for their part in an international conspiracy that affected the sale and supply of choline chloride, an additive widely used in the animal feed industry. Netherlands-based Akzo Nobel Chemicals was fined $1 million, and US-based Bioproducts was fined $ 6,00,000. A significant proportion of the Canadian market was affected by this conspiracy.
• In August 2003, Arteva Specialties Sarl, a Luxembourg-based company also known as KoSa, pleaded guilty and was fined $1.5 million in the federal court of Canada for its part in a conspiracy that affected the sale of polyester staple fibre. This product is widely used by textile. manufacturers in fabrics, sheets, shirts and other clothing, and home furnishings. The investigation is continuing into the alleged involvement of other companies in this conspiracy.
2005** • In December 2005, Nippon Carbon Company (NCK) pleaded guilty and was fined $1,00,000 by the federal court of Canada for aiding and abetting an international conspiracy to fix the price of graphite electrodes used in steel production. Between May 1992 and June 1997 graphite electrode manufacturers agreed to fix prices and to divide world markets and the volumes of electrodes sold in the various markets. Tokyo-based NCK supported the cartel’s agreement by not selling graphite electrodes to the Canadian market during this period. NCK is the seventh party to be convicted in Canada for participating in the graphite electrodes cartel.
Notes: *$ Indicate Canadian dollars. ** News report available at http://www.competitionbureau.gc.ca Source: Compiled from the Annual Report of the Competition Commissioner, Canada, 2001-02,2002-03 and 2003-04.
Switzerland and the Netherlands. They are found in consumer products like vitamins as well as critical industrial intermediate products.
Investigation of multi-jurisdictional competition questions is a complex and expensive task. In order to meet this challenge Canada has relied on a number of international cooperative arrangements. Canada has signed a mutual legal assistance treaty with the US for criminal matters (1985) and an agreement for the application of the competition law and deceptive marketing practices with the US, the European Union (EU) and Mexico. The purpose of these agreements is to facilitate securing evidence and information in multi-jurisdictional anti-competitive cases. Through international coordination efforts, Canada has attempted to improve enforcement efficiency of its competition laws.
IV Summary and Perspectives for India
Competition law and practice in Canada has evolved over time to represent modern competition law consistent with modern economic theory that emphasises conduct and behaviour of firms rather than market structure. This in particular deserves attention, as Canada is a relative small economy with greater scope for concentrated markets. It has a broad sweep as it includes all types of enterprises including government enterprises. Its criminal provisions, for example, on bid rigging and horizontal agreements etc, convey strong deterrent signal to anti-competitive behaviour. They are not applicable to exports. Rules relating to abuse of dominance provide for an efficiency defence. Enforcement of abuse of dominance has tended to emphasise the overall character of the act (of abuse of dominance) in question rather than intent. The merger rules suggest an accommodative framework for Canadian firms to carry out size and scope expansion by putting asset/sales size threshold for merger notifications.19 A cursory look at the data presented in the annual reports of the competition commission indicates that less than 1 or 2 per cent of the total mergers that takes place in Canada in a year are actually contested by the competition authorities. It clearly excludes agreements between firms that are pro-competitive and further moving towards amending horizontal/vertical agreements to reduce the possible chilling effect on strategic alliances. This is in order to create an enabling environment for Canadian firms to make adjustments and face global competition. The special case of airtransport and the forced merger discussed earlier perhaps suggests some attempt to encourage national champion firms. The outcome does not appear to be encouraging as the consumer welfare effects are yet to be realised. The CB has reportedly received complaints about the predatory practices of the dominant carrier Air Canada and the regulatory authorities reportedly receive a large number of consumer complaints against poor services. Some merger consent cases indicate inclusion of import liberalisation as one of the conditions. This approach is important for developing countries like India where more often import liberalisation is the best way to promote competition in domestic markets. At the same time, Canada has strongly asserted extra-territorial jurisdiction. This has yielded substantial benefits in terms of guilty pleas by firms involved in international cartels.
In brief, a reading of the Canadian law and practice suggests a competition policy framework that is continuously evolving, transparent in its disclosure of enforcement priorities and rules.
It is public friendly in its approach through its enforcement guidelines and advocacy of voluntary compliance.20
In the light of the above discussion, we can offer some perspectives on competition law and practice in India. The competition law 2002 is equally modern in its content and approach. It declares the following four types of agreements between firms as per se illegal. They are agreements related to (i) price fixing
[jjEmail: swamy@igidr.ac.in
Notes
1 National competition law can be defined as the set of rules and disciplines maintained by governments relating either to agreements between firms that restrict competition or to the abuse of a dominant position, including attempts to create a dominant position through merger. Strictly speaking competition policy is much broader than competition law and practice. Competition policy encompasses trade policy, privatisation, tax and subsidy policies that affect the state of competition in product markets. In this paper, we use the term competition policy to refer to laws, administrative rules and case laws, which are employed to deter restrictive business practices including laws relating to mergers and acquisitions.
2 See Cook 2002 for a survey. 3 Details are available at http://www.competition-commission-india.nic.in. 4 Khemani (1986). 5 McFetridge (1986) provides a summary of research in this area. 6 However, Khemani (1986) observed that structural conditions in the
manufacturing industries of Canada are changing so as to result in increased competition. This is attributed to entry and import penetration levels in the Canadian industry. Interestingly, Khemani observed “there is no evidence that suggests the pace of increased competition in Canada is more intense than that south of the border (United States)” (p 166).
7 This narrative is based on Ross (1998) and Trebilock et al (2002). 8 See footnote 22 in Ross (1998). 9 The Federal Competition Act, which came into force on June 19, 1986.
Here we discuss only the selected features. The CCA has much broader scope than indicated here and cover large areas of consumer protection and deceptive marketing practices that are outside the scope of this paper.
10 See footnote 30 in Ross (1998).
11 This is set out in detail as it clearly illustrates the range of the CCA 1986.
12 Some of these are self-explanatory, therefore not elaborated.
13 The CCA recognises the importance of intellectual property rights for innovative activity in the economy and provides for their exemption. It clearly states that “an act engaged in pursuant only to the exercise of any right or enjoyment of any interest derived under the Copy Right Act, Industrial Design Act, Integrated Circuit Topography Act, Patent Act, Trade-Marks Act or any other Act of Parliament pertaining to intellectual or industrial property is not an anti-competitive act” (Section 79 (5)).
14 Trebilcock et al 2002, p 527.
15 This important issue is not pursued here.
16 See the arguments of experts documented in the report of the parliamentary committee on amendment to the competition law.
17 They are Anthony VanDuzer and Gilles Paquet, both of the University of Ottawa. They submitted a report entitled ‘Anticompetitive Pricing Practices and the Competition Act: Theory, Law and Practice’. It is referred to as VanDuzer report.
18 This is following from the effects doctrine, first put forward by the US supreme court in the Alcoa case of 1945. It states that national authorities are entitled to prosecute any restrictive business practices, which affect competition in their jurisdiction, irrespective of their origin. The effects doctrine is increasingly accepted and used to settle international cartel issues. The sufficiency of effects doctrine is also contested. See Klodt (1998).
19 An interesting comment back in 1986 stated “firms in Canada have little to fear from competition policy authorities and enjoy considerable flexibility in rationalising and reorganising their production facilities to meet changing domestic and world market conditions” [Khemani in 1986: 163]. Another astute observer noted, 10 years later, “While there are few overt public interest or industrial policy goals stated in the statute, there can be little doubt that there is considerable room for manoeuvre, including implications that Canadian firms must be able to restructure to meet continental and globalising pressures” [Doern 1996].
20 The CB has established a series of programmes to promote compliance. They are not discussed here to save space.
21 This is suggested being an offshoot of the Haridas Exports Case, see Bhattacharjee (2003) for a critical discussion of this and other aspects of the competition law 2002. Chakravarthy (2004) is an excellent source for understanding Indian competition policy.
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