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Predatory Foreclosure 2004 Predatory Foreclosure 2004 The OECD Competition Committee debated predatory foreclosure in October 2004. This document includes an executive summary and the documents from the meeting: an analytical note by Mr. Jeremy West of the OECD and written submissions from Canada, Denmark, the European Commission, Germany, Japan, Korea, Mexico, New Zealand, Norway, Switzerland, Chinese Taipei, Turkey, the United Kingdom, and the United States, as well as an aide-memoire of the discussion. Competition law and policy on predatory foreclosure should be used to protect competition, not to protect competitors. There is no consensus on the best cost benchmark to use in predatory pricing cases, or even on whether an ideal measure exists. Although the average avoidable cost test is gaining support among scholars and practitioners, several delegates expressed a preference for maintaining enough flexibility to tailor the cost measure used to the facts of each case. A dominant firm’s price may be considered predatory in some jurisdictions even if it is above all measures of the firm’s own cost. On the other hand, below-cost pricing – even by dominant firms – is not always predatory. Competition authorities should take into account any legitimate business justifications offered by alleged predators. The “meeting competition” defence is recognised in many jurisdictions, but its rationale is not entirely sound and it can be difficult to apply in the presence of non-price competition. Several lessons about law enforcement methods against predation may be learned from recent cases brought against airlines. Not all predatory behaviour involves pricing strategies. Companies may also use “cheap exclusion” tactics to eliminate and deter competition. Resale below Cost (2005) Competition on the Merits (2005) Policy Brief: Preserving Competition: Keeping Predators at Bay (2005) Predatory Pricing (1989) Unclassified DAF/COMP(2005)14 Organisation de Coopération et de Développement Economiques Organisation for Economic Co-operation and Development 15-Mar-2005 ___________________________________________________________________________________________ English/French DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Unclassified DAF/COMP(2005)14 PREDATORY FORECLOSURE English/French JT00180386 Document complet disponible sur OLIS dans son format d'origine Complete document available on OLIS in its original format DAF/COMP(2005)14 FOREWORD This document comprises proceedings in the original languages of a Roundtable on Predatory Foreclosure which was held by the Competition Committee in October 2004. It is published under the responsibility of the Secretary General of the OECD to bring information on this topic to the attention of a wider audience. This compilation is one of a series of publications entitled “Competition Policy Roundtables”. PRÉFACE Ce document rassemble la documentation dans la langue d’origine dans laquelle elle a été soumise, relative à une table ronde sur les pratiques d'éviction des marchés, qui s’est tenue en octobre 2004 dans le cadre du Comité de la Concurrence. Il est publié sous la responsabilité du Secrétaire général de l’OCDE, afin de porter à la connaissance d’un large public les éléments d’information qui ont été réunis à cette occasion. Cette compilation fait partie de la série intitulée « Les tables rondes sur la politique de la concurrence ». Visit our Internet Site – Consultez notre site Internet http://www.oecd.org/competition 2 DAF/COMP(2005)14 OTHER TITLES SERIES ROUNDTABLES ON COMPETITION POLICY 1. Competition Policy and Environment OCDE/GD(96)22 2. Failing Firm Defence OCDE/GD(96)23 3. Competition Policy and Film Distribution OCDE/GD(96)60 4. Competition Policy and Efficiency Claims in Horizontal Agreements OCDE/GD(96)65 5. The Essential Facilities Concept OCDE/GD(96)113 6. Competition in Telecommunications OCDE/GD(96)114 7. The Reform of International Satellite Organisations OCDE/GD(96)123 8. Abuse of Dominance and Monopolisation OCDE/GD(96)131 9. Application of Competition Policy to High Tech Markets OCDE/GD(97)44 10. General Cartel Bans: Criteria for Exemption for Small and Medium-sized Enterprises OCDE/GD(97)53 11. Competition Issues related to Sports OCDE/GD(97)128 12. Application of Competition Policy to the Electricity Sector OCDE/GD(97)132 13. Judicial Enforcement of Competition Law OCDE/GD(97)200 14. Resale Price Maintenance OCDE/GD(97)229 15. Railways: Structure, Regulation and Competition Policy DAFFE/CLP(98)1 16. Competition Policy and International Airport Services DAFFE/CLP(98)3 17. Enhancing the Role of Competition in the Regulation of Banks DAFFE/CLP(98)16 18. Competition Policy and Intellectual Property Rights DAFFE/CLP(98)18 19. Competition and Related Regulation Issues in the Insurance Industry DAFFE/CLP(98)20 20. Competition Policy and Procurement Markets DAFFE/CLP(99)3 21. Regulation and Competition Issues in Broadcasting in the light of Convergence DAFFE/CLP(99)1 3 DAF/COMP(2005)14 22. Relationship between Regulators and Competition Authorities DAFFE/CLP(99)8 23. Buying Power of Multiproduct Retailers DAFFE/CLP(99)21 24. Promoting Competition in Postal Services DAFFE/CLP(99)22 25. Oligopoly DAFFE/CLP(99)25 26. Airline Mergers and Alliances DAFFE/CLP(2000)1 27. Competition in Professional Services DAFFE/CLP(2000)2 28. Competition in Local Services DAFFE/CLP(2000)13 29. Mergers in Financial Services DAFFE/CLP(2000)17 30. Promoting Competition in the Natural Gas Industry DAFFE/CLP(2000)18 31. Competition Issues in Electronic Commerce DAFFE/CLP(2000)32 32. Competition and Regulation Issues in the Pharmaceutical Industry DAFFE/CLP(2000)29 33. Competition Issues in Joint Ventures DAFFE/CLP(2000)33 34. Competition Issues in Road Transport DAFFE/CLP(2001)10 35. Price Transparency DAFFE/CLP(2001)22 36. Competition Policy in Subsidies and State Aid DAFFE/CLP(2001)24 37. Portfolio Effects in Conglomerate Mergers DAFFE/COMP(2002)5 38. Competition and Regulation Issues in Telecommunications DAFFE/COMP(2002)6 39. Merger Review in Emerging High Innovation Markets DAFFE/COMP(2002)20 40. Loyalty and Fidelity Discounts and Rebates DAFFE/COMP(2002)21 41. Communication by Competition Authorities DAFFE/COMP(2003)4 42. Substantive Criteria used for the Assessment of Mergers DAFFE/COMP(2003)5 43. Competition Issues in the Electricity Sector DAFFE/COMP(2003)14 44. Media Mergers DAFFE/COMP(2003)16 45. Non Commercial Services Obligations and Liberalisation DAFFE/COMP(2004)19 46. Competition and Regulation in the Water Sector DAFFE/COMP(2004)20 47. Regulating Market Activities by Public Sector DAFFE/COMP(2004)36 4 DAF/COMP(2005)14 48. Merger Remedies DAF/COMP(2004)21 49. Cartels: Sanctions against Individuals DAF/COMP(2004)39 50. Intellectual Property Rights DAF/COMP(2004)24 5 DAF/COMP(2005)14 TABLE OF CONTENTS EXECUTIVE SUMMARY ..................................................................................................................... 7 SYNTHÈSE........................................................................................................................................... 11 BACKGROUND NOTE........................................................................................................................ 17 NOTE DE RÉFÉRENCE....................................................................................................................... 61 NATIONAL CONTRIBUTIONS Canada ......................................................................................................................................... 111 Denmark ...................................................................................................................................... 119 Germany ...................................................................................................................................... 131 Japan ............................................................................................................................................ 157 Korea............................................................................................................................................ 163 Mexico ......................................................................................................................................... 169 New Zealand................................................................................................................................ 185 Norway ........................................................................................................................................ 201 Switzerland .................................................................................................................................. 207 Turkey.......................................................................................................................................... 213 United Kingdom .......................................................................................................................... 217 United States................................................................................................................................ 227 European Commission................................................................................................................. 231 Chinese Taipei ............................................................................................................................. 243 SUMMARY OF THE DISCUSSION ................................................................................................
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