Canada and the EU: Cooperation is a Two-Way Street

Susan M Hutton¹

Stikeman Elliott LLP

2007 to 2008 saw a ‘coming of age’ in the cooperative relationship between the Canadian Competition Bureau (the Bureau) and the Competition Directorate-General of the European Commission (the Commission). With the Bureau taking the initiative on at least one major international cartel investigation – the ‘Chocolate Cartel’ – cooperation seems to have become truly a two-way street.
Through such multilateral organisations as the International Competition Network (the ICN)² and the Organisation for Economic Cooperation and Development (the OECD),³ and pursuant to the 1999 EU/Canada Competition Cooperation Agreement,⁴ Canada and the EU have continued to strive for increased cooperation and convergence in the competition law enforcement arena. On 14-16 April 2008, representatives from both the Bureau and the Commission attended the 7th Annual ICN Conference in Kyoto, sending a clear message on cooperation and convergence along with some 500 other delegates, representing over 70 competition agencies.⁵
As to bilateral Canada-EU cooperation, 2007 to 2008 showed clear fruit in cartel investigations; increased convergence in leniency programs; comity in international merger clearances; and studies in similar sectors in such areas as pharmaceuticals and telecommunications. Despite this proof of the fruitful relationship between the Commission and the Bureau, however, 2007-2008 also demonstrated there is still work to be done, particularly in areas such as merger review procedure and, perhaps, abuse of dominance analysis. The 2008 EU-Canada Summit slated for October 2008 in Montreal might provide an opportunity for improving cooperation and convergence in these and other areas.

Cartels

Convergence in leniency/immunity programmes

Updates to their respective leniency programmes by the Bureau and the Commission bode well for continued convergence in the cartel enforcement arena. One of the main ‘cartel-busting tools’ for both Canada and the EU is a leniency programme.⁶ The ICN has been instrumental in motivating its members, including the Bureau and the Commission, to focus on fine-tailoring their leniency programmes in order to maximise the benefits of this anti-cartel tool.⁷
In both the EU and Canada,⁸ ‘full immunity’ (ie, total immunity from fines and prosecution) is potentially available to the first person who provides insider information on the existence of a cartel in which he or she has participated.⁹
Nonetheless, until recently, Canada and the EU had apparently different approaches to firms who lost the race for full immunity but still wished to offer timely and valuable cooperation. The European Commission has been operating an explicit leniency programme to cater to such firms.¹⁰ Firms that lose the race for immunity but provide evidence of ‘significant added value’ to evidence already in the Commission’s possession while terminating their cartel participation may be granted a reduction in fines on a sliding scale: the first company to meet these conditions is granted a 30 to 50 per cent reduction; the second a 20-30 per cent reduction; and subsequent firms, up to 20 per cent.¹¹ To set the base fine, the Commission will consider the gravity and duration of the offence as well as certain aggravating and attenuating circumstances.
In contrast, Canada had been following the US model, accepting plea agreements outside of its immunity programme from those firms in return for a reduction of their fines and sentencing, but without a formal policy with respect to these firms.¹² However, on 18 April 2008, after a public consultation on its Immunity Programme, the Bureau issued proposals to adopt a formal leniency programme to encompass parties that do not qualify for immunity.¹³
In step with the EU model, the Bureau is proposing that the commissioner, in recommending to the director of public prosecutions that a party not eligible for immunity receive lenient treatment, consider such factors as the value of the evidence and the timeliness of cooperation. A sliding scale is also being proposed: in general, the first leniency applicant meeting the conditions of the new programme is eligible for a reduction in fines up to 50 per cent; and subsequent qualified applicants may benefit from up to a 30 per cent reduction.
For its part, on 20 June 2008, the Commission also demonstrated the drive to continually update its leniency programme by introducing a new, simplified settlement procedure for cartels: having been made aware of the evidence in the Commission file, parties can choose to acknowledge involvement in the cartel and their liability in exchange for a 10 per cent reduction in fines.¹⁴

Cooperation as a two-way street: the Chocolate Cartel

As mentioned, both the Commission and the Bureau have been cooperating intensively in their cartel investigations through communication and coordination. As Sheridan Scott, Canadian Commission of Competition, confirmed in April 2008: ‘Tighter and more frequent communication between agencies means that we now hear about some cases more quickly from our international partners than through counsel.’ The Bureau currently holds bi-monthly bilateral meetings with its EU, US and Japanese counterparts to discuss the progress of cases as to investigative steps and timing. In her speech, Ms Scott mentioned a case, without divulging the parties’ names, in which coordination in enforcement actions was essential as the Bureau ‘delayed the use of formal powers to accommodate several other jurisdictions, thus preserving the element of surprise for all’.To complement this type of coordination with its international counterparts such as the Commission, the Bureau is intensifying its emphasis on home-grown cartels by beefing up its domestic investigative capabilities.¹⁵ It would seem that both cooperation and this domestic emphasis have born fruit in one of the most talked about international cartel investigations in recent months: the ‘Chocolate Cartel’, first cracked in Canada.
In November 2007, the Competition Bureau launched an investigation into allegations of price fixing in the chocolate confectionary industry. As the Bureau later confirmed to the media, Ontario’s Superior Court of Justice granted the Bureau search warrants ‘based on evidence that there are reasonable grounds to believe that a number of suppliers in the [industry] have engaged in activities contrary to the conspiracy provisions of the [Competition Act]’.¹⁶ Pursuant to these search warrants, dawn raids of several chocolate companies were conducted, including at the Canadian offices of Mars, Nestlé and Cadbury. As Assistant Deputy Commissioner John Pecman of the Bureau’s Criminal Matters Branch explained, the volume of commerce affected was potentially in the billions of dollars per year.¹⁷
The European Commission, the US Department of Justice (DoJ) and the German Federal Cartel Office then made their own moves – the Commission and the German FCO in February 2008,¹⁸ and the DoJ in early December 2007.¹⁹ As the Canadian commissioner of competition confirmed in April 2008: ‘[W]hat began as a purely Canadian cartel investigation has since drawn the attention of the US, Germany and the European Commission, all of which have launched their own probes, not to mention over 50 class-action lawsuits in the US to complement the nine or more filed in Canada.’²⁰ Indeed, the fall out continues to expand. As of early June 2008, some 80 lawsuits filed against the chocolate manufacturers Hershey, Mars, Nestlé and Cadbury Schweppes were consolidated in a Pennsylvania court, the US middle district court in Harrisburg where Hershey is headquartered.²¹ The regulators’ investigations are all ongoing, and as of July 2008, no formal enforcement actions had yet been taken.
The Bureau’s key role in these investigations is testament not only to its focus on domestic investigations but also to the free exchange of information and cooperation among the Bureau, the Commission, and the DoJ (and other enforcement agencies). The Bureau’s success as leader in investigating the Chocolate Cartel will no doubt create a strong precedent for a further deepening of the relationships between competition law enforcers in Canada and the EU.

Mergers

The importance of convergence for both the procedural and substantive aspects of intentional merger review cannot be underestimated. As Canada’s Competition Policy Review Panel stated in its June 2008 report: ‘Increasingly, the most significant mergers are international in scope […] [U]sing an analytical approach and regulatory process that is convergent with [Canada’s] major trading partners should […] help the […] Bureau conduct its work.’²²
Under the current Canadian regulatory regime, a proposed merger transaction that is notifiable under the applicable thresholds cannot be completed until the expiration of the applicable waiting period: 14 calendar days for a short-form filing and 42 calendar days for a more detailed long-form filing. The filings themselves contain information on the parties and the transaction that is different from both the information required in a European Form CO and that required in the US, consisting, in the case of a short-form filing, largely of ‘tombstone’ data on the parties and relevant affiliates, and lists of the top 20 customers and suppliers for principal categories of products of each principal business. Long-form notifications also require the filing of strategic transaction documents (similar to the ‘4(c)’ documents required in the US), as well as business, marketing and strategic plans, expanded lists of customers and suppliers, and more detailed information on overlap products, such as capacity and utilisation for each overlap production facility. Such formal filings may be replaced, or supplemented, however, by a competitive impact statement in the form of a request for an advance ruling certificate (ARC), the content of which, while not prescribed, will resemble more closely the detailed competitive impact analysis for overlap products contained in a European Form CO. Indeed, the Bureau has come to expect the parties to file such competitive impact statements, either instead of a formal notification (the Bureau can waive the requirement to notify on the basis of information contained in an ARC request) or in addition to such a notification. Either within the waiting periods or – in some cases – well after their expiry, the commissioner may apply to the Competition Tribunal for a remedial order if the commissioner is of the view that the merger or proposed merger will or is likely to prevent or lessen competition substantially in a relevant market.²³
The European Commission’s test for deciding whether a merger should be challenged is whether it would likely create a dominant position, resulting in higher prices, less choice and innovation. Notwithstanding this focus on dominance, the Commission also must consider whether the merger would ‘significantly impede effective competition’.²⁴ Consequently, as both the Commission and the Bureau must consider the economic effect of the merger on the competitive process itself (not just on competitors), their current merger tests are not significantly dissimilar overall.
However, unlike the Bureau, the Commission has a two-stage review timetable. Where a merger is notifiable under the applicable community thresholds, notification and clearance is required for the proposed transaction prior to its implementation. In Phase I, within generally 25 working days of the notification, the Commission must assess and give notice whether the merger raises no issues and can proceed, or whether there are ‘serious doubts’. If the Commission, pursuant to serious doubts, decides to carry out an in-depth inquiry, this Phase II investigation can last generally no longer than 90 working days after which time the Commission must render a decision.²⁵
Given the tight mandatory deadlines for the conclusion of cases, Europe has been, in effect, in the driver’s seat for many recent international mergers, especially in light of the more open-ended timetable for review of such mergers in the US. The Canadian merger review timetable is in the familiar position of being in between that of Europe and the US. The Canadian Bureau cannot suspend or extend the 42-day long-form waiting period, although it can seek an injunction to delay closing by as much as 60 days if it needs more time to complete its investigation when that waiting period expires. Now, there are calls for Canada to adopt an approach similar to that in the US, thus potentially further diverging from European procedures for merger review. Canada’s Competition Policy Review Panel recommended in its June 2008 report, Compete to Win, that Canada adopt a two-stage process. The Panel would want merger cases classified into two categories: those that are concluded and cleared within 30 days of initial filing, and ‘second stage’ cases posing more complex issues.²⁶ While such changes could bring Canada more in line with the European Commission’s procedure for ‘Stage 1’, the Panel has not advocated European-style deadlines for more difficult cases, but has instead recommended an open-ended investigation pursuant to a US-style ‘second request’ for additional documents and information. In the face of controversy over such US-style proposals, it remains to be seen whether and when Canada’s merger review process will indeed be reformed.
Notwithstanding the uncertainty over convergence with respect to merger review procedures, the review of the Thomson/Reuters transaction in 2007 to 2008 demonstrated the strength of substantive comity between the Bureau and the Commission. The Bureau chose to follow the Commission’s lead,²⁷ clearing the deal on the strength of remedy packages negotiated between the parties and the Commission.²⁸ Senior Deputy Commissioner of Competition Melanie Aitkin at the Canadian Bureau explained that for ‘international mergers, the overriding concern for the Bureau is to secure a remedy to resolve a likely substantial lessening or prevention of competition in Canada. Where appropriate, the Bureau will refer to remedies agreed on in other jurisdictions, provided the remedy required addresses the Canadian issues.’

Abuse of dominance: ‘Goldilocks’ role reversal?

At an October 2007 plenary on ‘International Focus on Unilateral Conduct’, the Canadian Commissioner of Competition Sheridan Scott discussed a theory on abuse of dominance, in circulation among Bureau staff, termed the ‘Goldilocks theory’. This theory posits that enforcement in the EU is too ‘hot’, in the US it is too ‘cold’, and in Canada it is ‘just right’.²⁹ It appears possible, however, that at least some Canadian abuse of dominance enforcers may be striving to play the role of Papa Bear, while European enforcers profess a desire to play Goldilocks instead. While the push in Europe seems to be for a more economics-based approach to abuse of dominance, Canadian enforcers, at the Bureau at least, appear ready in some cases to veer away from this approach.
Article 82, the EU abuse of dominance provision, has been said by many to have been applied in the past more on the basis of the ‘form’ of the conduct, rather than on an assessment of its economic effects. As the British Institute of International and Comparative Law, Competition Law Forum has explained, the approach leads to ‘[…] allegedly anti-competitive abuses being categorised under various headings, based on descriptions of behaviour that are likely to be prohibited regardless of their factual context or actual economic impact in any particular case. The form of conduct is examined, rather than its effect on competition in the market, or on consumer welfare’.³⁰
In December 2005, the European Commission published a discussion paper on the application of article 82 which advocated reform by focusing on a more effects-based analysis.³¹ As Competition Commissioner Neelie Kroes stated in a September 2005 speech outlining the proposals for reform: ‘I am convinced that the exercise of market power must be assessed essentially on the basis of its effects in the market, although there are exceptions such as the per se illegality of horizontal price fixing.’³²
While the public hearing consultation concluded in June of 2006, guidelines reflecting these reform proposals have yet to be issued.³³ Indeed, the European courts did not appear to be very sympathetic to this proposed reform. For instance, in the 2007 Microsoft Corporation v Commission judgment,³⁴ the Court of First Instance appeared to be in conflict with the more economics-based approach being developed by the Commission in its article 82 review.³⁵ Still, this apparent reluctance on the part of the courts to re-think article 82 does not wholly prevent the Commission from using a more economics-based approach in its own enforcement activities, and Europe’s push for the introduction of more economics in ‘abuse’ cases has been largely applauded by the antitrust community.
It seems somewhat ironic, therefore, that although Canada has always rigorously examined the economic effects of alleged abuse of dominance, pleadings by the commissioner in the recently settled Canada Pipe case indicate the Bureau may long for a more European-style presumption of anti-competitive effects, at least in some cases.
To find there has been an abuse of dominance in Canada, the Competition Tribunal must find that a firm or firms substantially or completely controls the relevant product and geographic markets; has engaged in a practice of anti-competitive acts; and the result or likely result is a substantial prevention or lessening of competition. While a high market share is usually necessary for a finding of ‘control’ (ie, market power), it is not sufficient. For instance, if barriers to entry are low, high market share may not indicate ‘control’.³⁶ In general, the Tribunal must consider the effects of the practice of anti-competitive acts on competitors in order to find there has been a practice of anti-competitive acts, and it must consider the impact on the competitive process in order to find an abuse has occurred. Decisions typically contain very detailed examinations of extensive economic evidence on these points.
In this context, one is left puzzled by the commissioner’s suggestion in pleadings filed in the Canada Pipe case that the effects of an anti-competitive act do not necessarily matter. As she stated in her arguments on the re-determination ordered by the Federal Court of Appeal: ‘[i]n light of the evidence regarding the subjective intent of [Canada Pipe], it is not necessary to consider the reasonably foreseeable consequences of the [loyalty programme under which Canada Pipe was offering rebates and discounts to certain distributors].’³⁷ The commissioner’s submissions appear to be in conflict with the Federal Court of Appeal’s judgment which espoused a more economics-based approach. As the court explained, subjective intent cannot be the only factor to consider in making a determination of whether there has been a practice of anti-competitive acts: the reasonably foreseeable or expected objective effects of the act, as well as any business justification must be factored into the assessment as well.³⁸ Moreover, the commissioner, in her submissions, argued that the test for establishing a substantial prevention or lessening of competition should be met where a respondent with significant market power has even a small effect on competition.³⁹ This could imply that the effect on competition does not matter as much as the fact that the firm has market power. Notwithstanding the commissioner’s pronouncements, as the Supreme Court of Canada denied the commissioner leave to appeal the FCA judgment and the case then settled, prior Canadian case law suggests that the Tribunal will likely continue to give economic effects a central role in abuse cases.
Such an arguably hawkish sentiment on the part of the commissioner is nonetheless noteworthy; however, given the proposal in Bill C-454, now before a parliamentary committee after a second reading (although likely to die on the order paper if a federal election is called in Canada this autumn), and supported by the Competition Policy Review Panel report, to permit the Tribunal to impose multi-million dollar fines for abuse of dominance.⁴⁰ Given the Bureau’s preference for settling cases, and its apparent views based on the Canada Pipe pleadings that dominant firms simply ought not to engage in certain exclusionary behaviours, the introduction of fines in Canada could yet usher in a new era of enforcement in Canada. Although admittedly unlikely, given the central role of economics in Canadian abuse cases to date, the EU and Canada may yet switch places so as to turn the ‘Goldilocks theory’ on its head.

Sector studies: Pharmaceuticals and Telecommunications

As further evidence of the fruits of cooperation, both the Commission and the Bureau have been studying competition in the pharmaceuticals and telecommunications industries over the past year.
In January 2008, the Commission raided some of Europe’s largest pharmaceutical companies as part of a far-reaching investigation⁴¹ into whether drug makers are preventing inexpensive generic medicines from reaching millions of consumers in the European market.⁴² Neelie Kroes, the commissioner for competition, stated that the decision to investigate the entire pharmaceuticals sector was based on new evidence that competition in Europe’s pharmaceutical markets ‘may not be working well [since] fewer new medicines are being brought to market, and the entry of generic medicines sometimes seems to be delayed’.⁴³ In particular, the inquiry will examine whether agreements between pharmaceutical companies, such as settlements in patent disputes, have blocked or lead to delays in market entry.⁴⁴
For many in the European legal community, the focus on generics is not surprising as the entry of generics into the market has already been a major issue for North American regulators.⁴⁵ Already as far back as 28 September 2006, the Bureau announced that it would be undertaking a study of the generic drug sector, in response to several studies that found the price of prescription generics to be high in Canada compared to other countries.⁴⁶ The Generic Drug Sector Study, released in October 2007, concluded that while strong competition exists in the supply of many generic drugs, the benefits of this competition are not reaching the Canadian public in the form of lower prices.⁴⁷
Both the Bureau and the Commission also contributed to the ICN Working Group on Telecommunications Services, the Bureau as a co-chair, and the Commission as a member. The Working Group presented its findings at the ICN’s 5th Annual Conference in Cape Town, South Africa, May 2006⁴⁸ leading to the ICN’s adoption of suggested best practices for achieving a more competitive telecommunications services sector. Both Europe and Canada have since seen reforms to their respective telecommunications industries. In November 2007, the Commission proposed revisions of the European telecom market regulatory framework, such as the provision of more consumer choice through more competition, and a ‘New Deal’ for radio spectrum, which would treat spectrum as ‘service neutral’, allowing use of spectrum for broadband delivery by anyone who pays for it.⁴⁹ Canada’s Minister of Industry has also advocated reforms to radio spectrum to increase competition, encouraging the removal of barriers to secondary markets for spectrum authorisations.⁵⁰ Just recently, Sheridan Scott, Canada’s commissioner of competition, addressed the Canadian Telecom Summit on competition policy in the telecommunications industry, urging progress towards greater reliance on market forces.⁵¹
And, just as the Commission has been tackling anti-competitive practices such as abusive behaviour of dominant telecom operators through article 82,⁵² for its part, the Bureau published an Information Bulletin on 6 June 2008 outlining how it would address issues related to anti-competitive conduct in the telecommunications industry under the abuse of dominance provisions of the Competition Act in markets no longer subject to regulation by the Canadian Radio-television and Telecommunications Commission.⁵³

Does greater cooperation lie ahead?

The EU-Canada 2008 Summit, taking place in Montreal in October, is being touted as the venue for finally launching official talks with respect to a Canada-EU free-trade agreement.⁵⁴ The Canadian chair of the Canada Europe Roundtable for Business (CERT), Roy McLaren, has been calling for such an agreement since as early as 1992.⁵⁵ The framework for a possible Canada-Europe Trade and Investment Enhancement Agreement (TIEA), first drawn up in 2005, indicates that both parties recognise the importance of competition for ‘the efficient functioning’ of their respective markets, and are dedicated to maximising the benefits of trade and the investment liberalisation process by cooperating to stifle anti-competitive conduct,⁵⁶ especially in light of the 1999 EU/Canada Competition Cooperation Agreement.⁵⁷
2007 to 2008 has seen many developments for both the European Commission and the Canadian Bureau of Competition in anti-cartel policy and enforcement; merger policy development and assessment; and abuse of dominance assessment. However, arguably the most exciting development remains the Chocolate Cartel investigation. The fact that Canada initiated the investigation of the chocolate manufacturers, with the EU and other jurisdictions quickly following the Bureau’s lead, demonstrates that cooperation is truly a two-way street.

Notes

1 The author thanks Anny Vexler, summer law student, for her assistance in preparing this article.
2 Online: www.internationalcompetitionnetwork.org.
3 Online: www.oecd.org.
4 European Commission, ‘Bilateral relations – Canada’ (current as of July 2008), online: http://ec.europa.eu/comm/competition/international/bilateral/canada.html.
5 See International Competition Network, ‘Competition authorities from around the world send clear message on convergence’ (16 April 2008), online: www.internationalcompetitionnetwork.org.
6 Sheridan Scott, ‘Address to the Federation of the Industries of São Paulo State’ (Speaking notes, 12 May 2008), online: www.competitionbureau.gc.ca.
7 Ibid.
8 Canada adopted its first immunity policy in 1994, following the success of the US Department of Justice’s policy, with the European Commission following suit in 1996.
9 European Commission, Europa Press Releases – Rapid, ‘Competition: Commission action against cartels – Questions and answers’ (25 June 2008), online: http://europa.eu/rapid.
10 ICN Cartel Working Group Subgroup 1 – General Legal Framework, Cartel Settlements (Report to the ICN Annual Conference, Kyoto, Japan, April 2008) at 5-6, online: www.internationalcompetitionnetwork.org.
11 European Commission – Competition, Cartels: Leniency (current to July 2008), online: http://ec.europa.eu.
12 ICN Cartel Working Group Subgroup 1 – General Legal Framework, Cartel Settlements (Report to the ICN Annual Conference, Kyoto, Japan, April 2008) at 6-7, online: www.internationalcompetitionnetwork.org.
13 Competition Bureau, ‘Draft Information Bulletin on Sentencing and Leniency in Cartel Cases’ (28 April 2008), online: www.competitionbureau.gc.ca.
14 European Commission, ‘Antitrust: Commission introduces settlement procedure for cartels’ (30 June 2008), online: http://europa.eu/rapid.
15 Sheridan Scott, commissioner of competition (Canada), ‘Change and Redemption in Cartel Enforcement’ (Speech delivered at the Canadian Bar association Spring Meeting, 29 April 2008), online: www.competitionbureau.gc.ca.
16 CTV News Staff, ‘Agency launches chocolate price-fixing probe’ (28 November 2007), online: www.ctv.ca.
17 Global Competition Review, ‘Canada Unwraps Chocolate Cartel’ (28 November 2007), online: www.globalcompetitionreview.com.
18 AP Worldstream, ‘European Commission looking into chocolate pricing’ (20 February 2008), online: www.newser.com.
19 Associated Press, ‘Bitter chocolate: US, foreign regulators probe price fixing claims’ International Herald Tribune (13 February 2008), online: www.iht.com.
20 See note 15.
21 Global Competition Review, ‘Collate lawsuits consolidate’ (2 June 2008), online: www.globalcompetitionreview.com/news.
22 Competition Policy Review Panel, Government of Canada, Compete to Win, Final Report – June 2008 at 55, online: www.ic.gc.ca/epic/site/cprp-gepmc.nsf/en/Home.
23 Stikeman Elliott LLP, Competition Act & Commentary, 2008 Edition (LexisNexis: July 2007) at 116-119. On a more substantive note, unlike its Canadian counterpart, the Commission does not have the right to challenge a completed merger after the fact. Currently, the Canadian commissioner has up to three years in which to challenge a merger transaction after it has been completed. However, in keeping with international norms, the Canadian Competition Policy Review Panel proposed shortening this period to one year.
24 European Commission, ‘New Merger Regulation frequently asked questions’ (20 January 2004), online: http://europa.eu/rapid.

25 See John Davies and Michael Bo Jaspers, ‘European Union’ Global Competition Review: Merger Control 2008 – Getting the Deal Through (London: 2008) at 124. See European Commission, ‘New Merger Regulation frequently asked questions’ (20 January 2004), online: http://europa.eu/rapid.
26 See note 22, at 56.
27 Competition Bureau, ‘Competition Bureau Clears Thomson Acquisition of Reuters’ (19 February 2008), online: www.competitionbureau.gc.ca.
28 European Commission, ‘Mergers: Commission clears acquisition of Reuters by Thomson subject to conditions’ (19 February 2008), online: http://europa.eu/rapid.
29 Sheridan Scott, ‘Plenary: The Commissioner’s Panel – International Focus on Unilateral Conduct’ (Opening remarks for plenary of the Canadian Bar Association 2007 Annual Fall Conference on Competition Law) (12 October 2007), online: www.competition bureau.gc.ca.
30 British Institute of International and Comparative Law, Competition Law Forum’s Article 82 Review Group, ‘The Reform of Article 82: Recommendations on Key Policy Objectives’ (2 February 2005) at 3, online: www.biicl.org.
31 European Commission, Antitrust: Article 82 review (current as of July 2008), online: http://ec.europa.eu/comm/competition/antitrust/art82/index.html.
32 Neelie Kroes, commissioner of competition, ‘Preliminary Thoughts on Policy Review of Article 82’ (speech at Fordham Corporate Law Institute, New York, 23 September 2005), online: http://europa.eu/rapid.
33 European Commission, Antitrust: Article 82 review (current as of July 2008), online: http://ec.europa.eu/comm/competition/antitrust/art82/index.html.
34 Microsoft Corporation v. Commission, Judgment of the Court of First Instance (17 September 2007), online: http://curia.europa.eu/en/transitpage.htm.
35 See Kelyn Bacon, ‘Tying after Microsoft: One Step Forward and Two Steps Back?’ GCP: The Online Magazine for Global Competition Policy (24 April 2008), online: www.globalcompetitionpolicy.org.
36 See note 23.
37 Commissioner of Competition v Canada Pipe Company Ltd, CT-2002-006, memorandum of Argument of the Commission of Competition (Re-determination proceeding), at paragraph 90, cited in Kevin Rushton, ‘Canada Pipe case settled, abuse of dominance provision remains unresolved’ The Competitor, Stikeman Elliott LLP (January 2008) at 2, online: www.stikeman.com.
38 Commissioner of Competition v Canada Pipe Company Ltd, 2006 FCA 233, at paras. 67 and 73, cited in Kevin Rushton, ‘Canada Pipe case settled, abuse of dominance provision remains unresolved’ The Competitor, Stikeman Elliott LLP (January 2008) at 3, online: www.stikeman.com.
39 Commissioner of Competition v Canada Pipe Company Ltd, CT-2002-006, memorandum of Argument of the Commission of Competition (Re-determination proceeding), at paragraph 167, cited in Kevin Rushton, ‘Canada Pipe case settled, abuse of dominance provision remains unresolved’ The Competitor, Stikeman Elliott LLP (January 2008) at 3, online: www.stikeman.com.
40 Unlike in Europe, Canadian law currently does not provide for the imposition of fines (or damages, for that matter) for abuse of dominance.
41 The investigation was launched on 15 January 2008.
42 Stephen Castle and James Kanter, International Herald Tribune, ‘European antitrust regulators raid drug companies’ (16 January 2008), online: www.iht.com/articles/2008/01/16/business/drug.php?page=1 [Castle & Kanter]. See European Commission – Competition, ‘Pharmaceuticals – Sector Inquiry’ (January 2008), online: http://ec.europa.eu/comm./competition/sectors.
43 European Commission – Competition, ‘Pharmaceuticals – Sector Inquiry’ (January 2008), online: http://ec.europa.eu/comm./competition/sectors. Stephen Castle and James Kanter, International Herald Tribune, ‘European antitrust regulators raid drug companies’ (16 January 2008), online: www.iht.com/articles/2008/01/16/business/drug.php?page=1 [Castle & Kanter].
44 European Commission – Competition, ‘Pharmaceuticals – Sector Inquiry’ (January 2008), online: http://ec.europa.eu/comm./competition/sectors.
45 Stephen Castle and James Kanter, International Herald Tribune, ‘European antitrust regulators raid drug companies’ (16 January 2008), online: www.iht.com/articles/2008/01/16/business/drug.php?page=1 [Castle & Kanter].
46 Competition Bureau, ‘Backgrounder - Generic Drug Sector Study’ (29 October 2007), online: www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/en/02507e.html.
47 Competition Bureau, ‘Canadians Could be Paying Less for Generic Drugs, Competition Bureau Study Finds’ (29 October 2007), online: http://competitionbureau.gc.ca.
48 International Competition Network, Report of the ICN Working Group on Telecommunications Services (Report to ICN Conference, Cape Town, May 2006), online: www.internationalcompetitionnetwork.org/.
49 Europa Press Releases Rapid, ‘Commission proposes a single European Telecoms Market for 500 million consumers’ (13 November 2007), online: http://europa.eu/rapid/.
50 Industry Canada, SPFC - Spectrum Policy Framework for Canada (June 2007), online: www.ic.gc.ca/epic/site/smt-gst.nsf/en/sf08776e.html.
51 Sheridan Scott, ‘Notes for an Address to the Telecom Summit, Toronto’ (18 June 2008), online: www.competitionbureau.gc.ca.
52 Competition Directorate-General of the European Commission, Telecommunications Overview (current to July 2008), online: http://ec.europa.eu/comm/competition/sectors/telecommunications/overview_en.html.
53 As the telecommunications industry continues to be deregulated under the Telecommunications Act, the sector is increasingly subject to the Competition Act. See Competition Bureau of Canada, Information Bulletin on Abuse of Dominance Provisions as applied to the Telecommunications Industry (6 June 2008), online: www.competitionbureau.gc.ca.
54 Michelle Collins, ‘EU Wants Provinces On Board Before Talks Start’ Embassy: Canada’s Foreign Policy Newsweekly (21 May 2008), online: www.embassymag.ca.
55 CERT, ‘Canada EU Trade and Investment Enhancement Agreement [TIEA]’ (website visited July 2008), online: www.canada-europe.org/en/AboutUs/EuTiea.htm.
56 European Commission, Bilateral Trade Relations, ‘Canada-European Union Trade and Investment Enhancement Agreement: Framework for the Agreement’ (current as of July 2008), online: http://ec.europa.eu.
57 European Commission, ‘Bilateral relations-- Canada’ (current as of July 2008), online: http://ec.europa.eu/comm/competition/international/bilateral/canada.html.

An extract from The European Antitrust Review 2009