On February 24, 2011, the Commissioner of Competition announced that the Competition Bureau
will undertake "moderate revisions" to the Canadian Merger Enforcement Guidelines
(MEGs). This announcement follows a series of roundtable
consultations with competition law practitioners across Canada,
consultations with foreign agencies and an internal Bureau review.
A wide variety of opinions were expressed during these roundtable
consultations, including opinions as to whether revisions were
necessary, particularly given that the MEGs were last revised in
2004 following a thorough review and consultation process. In this
regard, an important factor driving the revisions is generally
believed to be the 2010 revisions to the U.S. Horizontal Merger Guidelines
(although these had last been revised in 1992).
The Bureau's press release indicates that the MEGs will not
undergo a "full rewrite" but rather will address specific
areas where the current MEGs do not fully reflect Bureau practice
and current economic and legal thinking. The Bureau's
announcement identifies a non-exhaustive list of seven areas in
which the Bureau is considering revisions. These are: 1) providing
additional guidance on monopsony issues; 2) explaining the
Bureau's approach to minority interests and interlocking
directorships; 3) providing additional guidance on the Bureau's
approach to unilateral effects, in light of current economic
thinking; 4) clarifying the framework for assessing coordinated
effects; 5) providing more accurate guidance on vertical issues,
focussing on foreclosure effects; 6) incorporating the Efficiencies Bulletin into the
MEGs; and 7) clarifying that merger review is not a "linear
process" that must start with market definition but is rather
an iterative process where market concentration is considered
together with other evidence of competitive effects. This last area
is understood to refer to economic tools such as the "upward
pricing pressure test" articulated by the economists Joseph
Farrell and Carl Shapiro in 2008. The degree to which such tools
find their way into the new MEGs is sure to be a matter of
considerable interest and debate.
The Bureau intends to publish revised draft MEGs in the second
quarter of 2011 and will be seeking public feedback prior to
finalizing the revised MEGs in the fall of 2011.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
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