On July 23, 2013, the Competition Tribunal
("Tribunal") dismissed the application
of the Commissioner of Competition
("Commissioner") requesting an order
prohibiting Visa and MasterCard from enforcing some of their
merchant customer rules. Among other things, the rules in question
prohibit merchants from imposing a surcharge when a consumer uses a
premium credit card for payment. When used by their customers,
premium credit cards result in higher credit card acceptance fees
for merchants. The Commissioner argued that such fees are passed on
to all customers in the form of higher prices for goods and
The Tribunal dismissed the application because it was brought
under the price maintenance provision of the Competition
Act ("Act") and the Commissioner
had not established that the merchant customers resold the Visa and
MasterCard products as required under that provision to constitute
a reviewable practice.
The Tribunal noted that, even if the Commissioner's
application met the requirements of the price maintenance
provision, it would have declined to issue the order requested
because the competition issues raised by the Commissioner are best
addressed by regulation. The Tribunal made no award of costs,
noting that, notwithstanding it was unsuccessful, the case was one
that was appropriately advanced.
This case highlights the fact that, even if conduct meets the
requirements of a reviewable practice under the Act, including
having the requisite anti-competitive effect, the Tribunal may
exercise its discretion not to issue an order. To date, the
Tribunal has issued only a summary of its decision. Once its
reasons are issued, we should have further guidance on the
application of the price maintenance provision.
The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.
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