Scribd Logo
Upload

Welcome to Scribd!

  • 22 views

    Philippine Competition Commission, Philippine Competition Law, Available at HTTPS://PHCC - Gov.ph/republic-Act

    Uploaded by

    Robby Delgado
    This document discusses standards that can be used as reasonable grounds or bases in competition law cases under Philippine law. It identifies five such standards: (1) failing to promote entrepreneurial spirit, such as favoring one's own services; (2) failing to encourage private investments or investments in general; (3) failing to facilitate technology development and transfer, such as discriminating against different types of technology; (4) failing to enhance resource productivity, like refusing to supply necessary services to other markets; and (5) limiting or controlling production, markets, technical development, or investment. The document analyzes these standards through examples from foreign competition law cases.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    Philippine Competition Commission, Philippine Competition Law, Available at HTTPS://PHCC - Gov.ph/republic-Act

    Uploaded by

    Robby Delgado
    22 views4 pages
    This document discusses standards that can be used as reasonable grounds or bases in competition law cases under Philippine law. It identifies five such standards: (1) failing to promote entrepreneurial spirit, such as favoring one's own services; (2) failing to encourage private investments or investments in general; (3) failing to facilitate technology development and transfer, such as discriminating against different types of technology; (4) failing to enhance resource productivity, like refusing to supply necessary services to other markets; and (5) limiting or controlling production, markets, technical development, or investment. The document analyzes these standards through examples from foreign competition law cases.

    Original Description:

    Enjoy!

    Original Title

    Delgado Rod Legalmemo3

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    This document discusses standards that can be used as reasonable grounds or bases in competition law cases under Philippine law. It identifies five such standards: (1) failing to promote entrepreneurial spirit, such as favoring one's own services; (2) failing to encourage private investments or investments in general; (3) failing to facilitate technology development and transfer, such as discriminating against different types of technology; (4) failing to enhance resource productivity, like refusing to supply necessary services to other markets; and (5) limiting or controlling production, markets, technical development, or investment. The document analyzes these standards through examples from foreign competition law cases.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    22 views4 pages

    Philippine Competition Commission, Philippine Competition Law, Available at HTTPS://PHCC - Gov.ph/republic-Act

    Uploaded by

    Robby Delgado
    This document discusses standards that can be used as reasonable grounds or bases in competition law cases under Philippine law. It identifies five such standards: (1) failing to promote entrepreneurial spirit, such as favoring one's own services; (2) failing to encourage private investments or investments in general; (3) failing to facilitate technology development and transfer, such as discriminating against different types of technology; (4) failing to enhance resource productivity, like refusing to supply necessary services to other markets; and (5) limiting or controlling production, markets, technical development, or investment. The document analyzes these standards through examples from foreign competition law cases.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 4

    Delgado, Rod Bendolf F.

    2014606661
    Legal Research and Thesis Writing JD40101

    LEGAL MEMORANDUM

    Topic: What is the standard of reasonable ground/basis in competition law cases?

    Competition laws, also known as antitrust laws, are “laws that stabilize the market
    condition by regulating the monopoly and unfair business practices”.1 In 2015, the Philippine
    Congress passed the Philippine Competition Act (PCA) or R.A. 10667. This legislation seeks to
    “protect the wellbeing of consumers and preserve the efficiency of competition in the
    marketplace”.2

    Within this act, it reflected its belief on how competition would encourage efficiency and
    innovation in businesses; According to the Philippine Competition Commission (PCC), tasked to
    “implement the national competition policy and attain the objectives and purposes of this Act”,
    competition -

     Promotes entrepreneurial spirit,


     Encourages private investments,
     Facilitates technology development and transfer, and
     Enhances resource productivity. Id.

    This provides a vague goal set by the PCA, which can be used as a standard that must be
    attained in order to fulfil its purpose. In the Philippines, there have been no cases on competition
    law. Because of the lack of jurisprudence in the Philippine context, resorts should be made to
    foreign jurisprudence. Foreign cases will then be applied to the standard set by the PCA, as
    reasonable grounds/basis in competition law cases.

    1
    Competition Law, (n.d.), In US Legal, Inc. Retrieved from https://definitions.uslegal.com/c/competition-law/
    2
    Philippine Competition Commission, Philippine Competition Law, available at https://phcc.gov.ph/republic-act-
    no-10667/ (2018, December 3)
    PROMOTES ENTREPRENEURIAL SPIRIT

    The first standard of a reasonable ground/basis that can be used in competition law cases
    is if the trade, business, or industry failed to promote entrepreneurial spirit. According to
    Cambridge dictionary, the word entrepreneurial “involves seeing a new opportunity and taking
    risks”.3 In the year 2017, the European imposed a fine on Google for “abusing its dominant position
    4
    in online search by giving preferential treatment to its own comparison shopping service.”
    Favouring one’s own services is a type of abuse of dominance, and this act has been prohibited by
    the European Commission.5 The reason behind this prohibition is, according to the case
    “consumers are in a situation with a smaller variety of visible comparison shopping services—i.e.
    primarily Google shopping—that may not offer them the best service.” Id at 4.

    Therefore, failure to promote entrepreneurial spirit by favouring one’s own services can be
    used as reasonable ground/basis in competition law cases.

    ENCOURAGING PRIVATE INVESTMENTS

    The second standard of a reasonable ground/basis that can be used in competition law cases
    is if the trade, business, or industry failed to encourage private investments or investments in
    general. Restricting or limiting market allocations, such as investments, is highly condemned by
    the Competition Authority in Italy.6 In the case Consorzio Industrie Fiammiferi, the Competition
    Authority held that, for the first time, “pursuant to the principle of supremacy of EU law, national
    legislation on the rules on the establishment and activities of the Italian match manufacturer
    consortium were incompatible with certain articles such as Article 101 of the TFEU”. Id.

    3
    Entrepreneurial, (n.d.), In Cambridge Dictionary. Retrieved from https://dictionary.cambridge.org/us/dictionary/
    english/entrepreneurial
    4
    Compelling Economics, Agenda The Google case: shop till you drop (off the screen) March 2018, available at
    https://www.oxera.com/agenda/google-shopping-case/ (2018, December 3)
    5
    Cullen International, #10CompetitionLawCasesYouShouldKnowAbout, available at
    https://pages.culleninternational.com/10_Competition_Law_Cases?fbclid=IwAR2zIlUTI7DvNv-
    3cFOHnKfaG36e9HWFa7nu8DMq2e-k65DMONtSzlgHUcw (2018, December 3)
    6
    Siragusa, M., Beretta, M., & Bay, M., (n.d.), Competition Law in Italy, Retrieved from
    https://www.clearygottlieb.com/-/media/organize-archive/cgsh/files/other-pdfs/competition-laws-outside-the-
    united-states.pdf
    Article 101 of the TFEU (Treaty on the Functioning of the European Union), states in
    paragraph one, “The following shall be prohibited as incompatible with the internal market: […]
    (b) limit or control production, markets, technical development, or investment;”7

    The infringement of Article 101 of the TFEU was attributable to the parties’ actions and
    the rules were therefore disregarded by the Italian courts and any public administration. Id at 6.
    Hence, failing to encourage private investments, and investments in general, can be used as
    reasonable ground/basis in competition law cases.

    FACILITATES TECHNOLOGY DEVELOPMENT AND TRANSFER

    The third standard of a reasonable ground/basis that can be used in competition law cases
    is if the trade, business, or industry failed to facilitate technology development and transfer. In the
    year 2008, The Secretariat of the Competition Commission of Switzerland submitted an
    application to the Commission to issue sanctions regarding Swisscom's abuse of its market
    dominant position in the area of ADSL services.8 It was alleged that Swisscom “may abuse its
    exclusive broadcasting rights by discriminating among competing pay TV distributors”. 5 Though,
    it was further declared that Swisscom did not perceive a case for market dominance, for the
    Secretariat of the Competition Commission failed to take into account “the fact that cable network
    operators could also offer broadband setup services”. Id at 8.

    If, however, it was proven that Swisscom had abused its broadcasting rights by
    discriminating among competing cable network operators/pay TV distributors, it could have been
    used as a ground for market dominance.

    Therefore, failure to facilitate or advance technological development by discriminating


    operators/industries that use a different type of technology can be used as a reasonable
    ground/basis for competition law cases.

    7
    Official Journal 115, Consolidated version of the Treaty on the Functioning of the European Union, available at
    https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E101:EN:HTML (2018, December 3
    8
    Swisscom, Active competition on the broadband market, available at https://www.swisscom.ch/content/dam/
    swisscom/en/about/investors/news/2008/20081113-01-wettbewerb-im-breitbandmarkt-spielt.pdf
    ENHANCES RESOURCE PRODUCTIVITY

    The final standard of a reasonable ground/basis that can be used in competition law cases
    is if the trade, business, or industry failed to enhance resource productivity. In a 2013 case in Spain,
    the Spanish NCA found that Correos (Spanish postal incumbent) “abused its dominant position in
    the upstream market for access services to the public postal network and the downstream services
    market for administrative notifications”.9 Correos’ refusal to supply access services not only
    prevents resource productivity but also prevented them from winning contracts from public
    administrations. 5 The Spanish NCA concluded that Correos’ refusal “created an insurmountable
    barrier to entry in the downstream market, because it prevented other operators from providing
    administrative notification services to public authorities”. Id at 9.

    Therefore, failure to enhance one’s resource productivity through one’s refusal to supply
    services to other markets/operators in need of such, in order for them to provide their own services,
    can be used as a reasonable ground/basis in competition law cases.

    9
    National Competition Laws Bulletin, Postal services and competition law: An overview of EU and national case
    law, available at https://www.lw.com/thoughtLeadership/overview-of-eu-national-case-law (2018, December 3

    You might also like