Mid-year Competition Law Update: Most- Favoured Nation Clauses and Anti-Competitive Rebates
As we move into the second half of the year, we examine two recent competition enforcement cases in Europe, and consider their relevance and applicability in the context of ASEAN competition law.
Specifically, we discuss the position taken in Europe with regards to Most Favoured Nation clauses (e.g., clauses requiring a supplier to grant a customer a price no less favourable than the prices granted to other customers) and rebate schemes, and how the same may be assessed under ASEAN competition laws. These are clauses used very frequently in agreements relating to sales and services provided, where the aim is to maximise the potential from the relationship.
Increased Scrutiny of Most Favoured Nation Clauses
Since 2010, various competition authorities in Europe have been investigating the use of price (and other conditions) parity clauses – commonly known as Most Favoured Nation or MFN clauses - in agreements made between established online hotel reservation platforms and the hotels listed on their websites. The various European competition authorities have taken the view that such conduct would likely constitute an anti-competitive agreement in violation of Article 101 of the Treaty of the Functioning of the European Union (“TFEU”) as well as the equivalent provisions under their respective national competition laws. These follow earlier decisions taken by the US and European competition authorities that the MFN clauses imposed by Apple on book publishers in the “ebooks case” were anti-competitive and should be removed.
On 21 April 2015, the French, Italian and Swedish competition authorities (“Authorities”) accepted the commitments proposed by Booking.com, an online hotel reservation platform – one of several caught in like investigations - to address the competition concerns arising from the price parity agreements it entered into with hotels listed on its website.
Summary of Bookings.com Case
In the Booking.com case, Booking.com had imposed MFN clauses that obliged hotels, as a condition for being listed on Booking.com’s website, to offer Booking.com at least as favourable offers of room prices, number of nights stayed and other conditions as those offered on competing platforms as well as through other distribution channels, including the hotel's own distribution channels.
Upon investigations, the Authorities found that the MFN clauses used by Booking.com were likely to:
Reduce competition between Booking.com and its competing platforms – The rationale being that Booking.com’s price parity clause implied that increases by Booking.com of the commission rates paid by hotels could not lead to higher room price on Booking.com than that available through its competitors. This would have allowed Booking.com to raise its commission rate without losing customers to its competitors, which might in turn lead to higher hotel room prices.
Foreclose smaller platforms or those that have just entered the online booking market – The rationale being that competitors would have been prevented from entering or expanding on the market by competing through lower commission rates in exchange for hotels setting lower room prices on that platform’s channels.
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The Authorities noted that the consequence of the above was that
the MFN clauses might have
significantly restricted competition, hence distorting the final prices for hotel rooms to the detriment of consumers.
In response to the concerns expressed by the Authorities, Booking.com submitted various commitments that were ultimately accepted by the Authorities as adequately addressing their competition concerns. The commitments would allow hotels to, amongst others, offer different terms and conditions (e.g., free Internet access) and availability to customers that book with on-line travel companies that offer lower rates of commission or other benefits, and allow hotels to offer lower rates to consumers that book through off-line channels and in the context of the hotels’ loyalty programmes.
MFN under ASEAN Competition Laws
MFN clauses essentially involve a vertical agreement in which the
supplier commits to grant the
distributor a price that is no less favourable than the prices granted to its other customers. From this concept, different structures of MFN clauses have emerged. MFN clauses can be reversed into most- favoured-supplier clauses whereby a buyer will assure the seller that it will match the best price offered by one of its competitors disclosed to it by the seller. Another variation is the so-called “English clause”,
which requires the buyer to report to its supplier any better offer made by competing suppliers and allowing it to accept such an offer only if the initial supplier does not match it. MFN-type clauses extend beyond the online sales sector and may be common in firms’ contracts with their customers and suppliers, and can operate at either the retail or wholesale level.
From a competition law perspective, the concern is that MFN agreements are a means to artificially fix prices. They can be a means to reinforce the effectiveness of resale price maintenance (“RPM”) policies by reducing the buyer’s incentive to lower the resale price. Where MFN agreements involve dominant market players (i.e., entities with significant market power), they may serve to maintain or reinforce market positions and constitute an abuse of dominance as they raise the barriers to entry and prevent new entrants from seeking to enter or expand into the market by negotiating lower prices with suppliers.
Within ASEAN, competition authorities generally have the jurisdiction to investigate MFN clauses under their respective competition law provisions as a form of price-fixing agreement or as an abuse of dominance:
Singapore: In Singapore, MFN agreements which are characterised solely as a vertical agreement
(i.e., agreements between entities that operate at different
stages of the production and
distribution chain) are unlikely to be investigated as an anti-competitive agreement, given that vertical agreements are expressly excluded from the competition law prohibition on anti- competitive agreements. However, where MFN agreements are being used as a tool for horizontal collusion among competitors (e.g., several distributors coming together to agree to impose an MFN agreement on their supplier), they may be investigated as a horizontal price-fixing agreement. In addition, MFN agreements that involve dominant market players may also be investigated as an abuse of a dominant position if they are deemed to have significantly impacted competitive conditions in Singapore. The indicative market share for dominance in Singapore is 60%. However, dominance can be established at lower market shares, depending on other factors such as barriers to entry and countervailing buyer power. As such, companies which may be considered to be in a dominant position must exercise great caution before imposing any MFN- clauses in their contracts with customers or suppliers. In industries that are characterised by MFN agreements between different players in the production chain, the CCS may decide to conduct a market study to assess if further investigations are warranted.
Malaysia: In Malaysia, MFN agreements may be viewed as vertical agreements involving price
The Malaysian Competition Commission’s guidelines expressly state that the
commission will take a strong stance against RPM and find it anti-competitive. It is possible that the commission will similarly take a strict position against MFN agreements if they result in RPM.
As in Singapore, MFN agreements that involve dominant market players may also be investigated as an abuse of a dominant position if they are deemed to have adversely affected consumers and excluded a competitor that is just as efficient as the dominant enterprise. The indicative market
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share for dominance in Malaysia is 60%. However, dominance can be established at lower market shares, depending on other factors such as barriers to entry and countervailing buyer power.
Indonesia: MFN agreements are not expressly mentioned as one of the categories of prohibited agreements or activities prohibited under Indonesia’s competition law. However, it is possible that MFN agreements may be viewed as a form of vertical price fixing which is prohibited under Indonesia’s competition law, especially where it is used as a tool to reinforce RPM. In addition, MFN agreements if entered into by a dominant player may be investigated as an abuse of dominance, as Indonesia’s competition law prohibits business actors from (i) directly or indirectly determining trade requirements with the purpose to prevent and/or impede consumers from obtaining goods and/or services with competitive price and quality; and (ii) impeding other business actors having potential to become competitors from entering the same relevant market. One of the thresholds for dominance in Indonesia is where the business actor or a group of business actors control at least 50% of the market share.
In the 2005 Carrefour case, the Indonesia competition authority, the KPPU, held that PT Carrefour Indonesia (“Carrefour”) had violated the competition law by implementing: (i) listing fee, which required its suppliers to pay a non-refundable deposit for newly supplied products; and
(ii) minus margin, which required its suppliers to guarantee that their selling price to Carrefour was the cheapest compared to the selling price to Carrefour’s competitors. Further, Carrefour’s suppliers were also required to pay the difference between the selling price to Carrefour and the
cheaper selling price to competitors. Carrefour was ordered requirement and was fined a total of IDR 1.5 billion.
Thailand: In Thailand, MFN agreements may be viewed as
to remove the minus margin
an agreement which creates a
monopoly or reduces or restricts competition. In particular, it may be viewed as an agreement which fixes the sale or purchase prices of goods or services as a single price or as agreed or
restricting the volume of goods or services sold or purchased. In addition, MFN agreements if entered into by a dominant player may be investigated as an anti-competitive conduct by business operators with market dominance. Amongst others, dominant players are prohibited from unreasonably determining or maintaining purchase or sale price for goods or fees for services. One of the thresholds for dominance in Thailand is where the business operator has a market share in the previous year exceeding 50% and at least 1,000 million Baht in turnover.
Vietnam: In Vietnam, MFN agreements may prohibited as an anti-competitive agreement under the law which prohibits, amongst others, agreements that (i) either directly or indirectly fix the price of goods and services; (ii) prevent or impede other enterprises from participating in the market or developing their business; or (iii) exclude from the market other enterprises which are not parties to the agreement. Agreements under category (i) above are prohibited only if the combined market share of the parties involved exceeds 30% of the relevant market. However, there is no such qualification for the agreements under categories (ii) and (iii) above. As such, whether or not the entity’s market share needs to be considered would depend on how the Vietnam competition authority characterises MFN agreements. In addition, MFN agreements entered into by dominant enterprises may be investigated as an abuse of dominance. Amongst others, dominant enterprises are prohibited from fixing an unreasonable selling or purchasing price or fix a minimum reselling price goods or services, or imposing conditions or preventing market participation by new competitors. The indicative market share for dominance in Vietnam is 30%.
It may be open for any undertaking being investigated in relation to an MFN clause to argue that the MFN clause has a net economic benefit (e.g., prevent free-riding by the sellers, allow distributors to reduce costs of frequent negotiations, protect specific investments incurred by distributors) or are objectively justified, depending on which prohibition the undertaking is being investigated under.
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Assessment of Rebate Schemes by Dominant Players
Under the 2009 EC Guidelines issued on abusive exclusionary conduct by dominant undertakings (prohibited under Article 102 of the TFEU), rebates or discounts granted by dominant market players may be assessed to have actual or potential foreclosure effects, and therefore, anti-competitive.
Rebates are commonly granted by businesses to customers if the customer’s purchases over a defined reference period exceed a certain threshold (whether by volume or by value). These rebates can be granted on all purchases (retroactive rebates) or only on those made in excess of the required threshold (incremental rebates). Although such schemes are not uncommon, and may even stimulate demand and benefit customers, it has been recognised that such arrangements, when implemented by a dominant firm, may foreclose the market as they make it less attractive for customers to switch their demand to an alternative supplier.
On 21 May 2015, Advocate General Kokott delivered an opinion on the rebate scheme operated by Post Danmark A/S (“Post Danmark”), a dominant player in the Danish bulk mail market. In addition to clarifying the factors to be considered in assessing the exclusionary potential of a rebate scheme, the Advocate General’s opinion raised interesting points as to whether the abusive nature of a rebate scheme must be demonstrated by means of a price/cost analysis such as the “as-efficient-competitor” test and whether a rebate scheme must be shown to have an appreciable effect on competition in order to be classified as an abuse of dominance.
Summary of Post Danmark Case and Advocate General Kokott’s Opinion
Post Danmark had been accused by the Danish competition authority of abusing its dominant position in the bulk mail market by operating a rebate scheme for direct advertising mail, and was prohibited from continuing to operate the scheme. The firm had an overall share of approximately 95% of the bulk mail market in Denmark at the relevant time, of which 70% was covered by a statutory monopoly. Of the entire bulk mail market, direct advertising mail constituted 7%.
The scheme allowed customers who exceeded a certain threshold (either 30,000 letters or a gross postage value of at least DKK 300,000) during a single reference year to enjoy a 6% rebate, with further increments and levels up to a maximum of 16%. At the beginning of each year, the price payable by a customer was determined on a provisional basis by reference to the volume which that customer was expected to order. At the end of the year, all prices were then retroactively adjusted to reflect the volume of mail the customer actually sent for that year. Thus, the customer would be required to reimburse Post Danmark for the rebate value if the actual volume ordered fell short of the forecasted volume.
Among other conclusions, the Advocate General found that such a
rebate scheme was capable of
producing an economically unjustified exclusionary effect. The Advocate General considered that the scheme was a retroactive (i.e., rebates granted on all purchases) rather than an incremental (i.e., rebates granted only on those made in excess of those required to achieve the threshold) one, and noted that retroactive rebate schemes were more likely to have a “suction effect” as they affect the cost of all orders
already placed rather than just affecting future orders. Such rebate schemes therefore made it easier for the dominant firm to tie its customers to itself and attract more customers. In this case, the fact that comparatively high rebates of between 6% and 16% were granted retroactively over a relatively long reference period of one year was indicative of a strong suction effect. Such suction effect was further enhanced by the fact that the rebates applied without distinction to both the contestable part of the demand (i.e., the part where Post Danmark faced competition) and to the non-contestable part of demand (i.e., the part covered by Post Danmark’s statutory monopoly). This would have given customers the incentives to purchase even the contestable part of their demand from Post Danmark in order to enjoy higher rebates overall.
The Advocate General further noted that any anti-competitive exclusionary effect exerted by the rebate scheme would be all the more likely and significant, the stronger the dominant firm was on the relevant market and the weaker the position of its current or potential competitors. In this case, the Advocate
General considered that in light of its dominant position on the
market, Post Danmark was an
unavoidable trading partner and the rebates which it applied carried considerable exclusionary potential.
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The market was characterised by high economies of scale and high barriers to entry, making it difficult for competitors to establish themselves and compete for demand. Customers would thus be unable to have their needs met by competitors without losing some of the rebates that they would have enjoyed, resulting in the scheme having a high exclusionary potential.
As to the importance of the “as-efficient-competitor” test, the Advocate General took the view that there is no legal obligation that the abusive nature of a rebate scheme by a dominant firm must always be based on price/cost analysis such as the “as-efficient-competitor” test, where the abusive nature is immediately shown by an overall assessment of the other circumstances of the individual case.
The Advocate General also clarified that the exclusionary effect produced by such a rebate scheme does not need to exceed any form of appreciability (“de minimis threshold”) to be considered an abuse. Rather, it would be sufficient for the scheme to have an actual or potential exclusionary effect (rather than having a ‘serious’ or ‘appreciable’ effect on competition), and for the presence of such an effect to be more likely than its absence, in order to establish an abuse.
Rebates and Discount Schemes in ASEAN
Rebates and discount schemes are commonly used by businesses in ASEAN to incentivise customers to purchase larger volumes. Such schemes may be investigated by the relevant competition authorities if they are deemed to have the effect of harming competition.
Existing ASEAN competition authorities generally have the jurisdiction to investigate such schemes under their respective competition law provisions, generally as a form of an abuse of a dominant position:
Singapore: In Singapore, rebates and discounts schemes are generally acceptable unless they are employed by a dominant firm with the effect of harming competition. The CCS has noted that it is important to consider if the rebate or discount schemes are only commercially rational because they have the effect (or potential effect) of foreclosing all (or a substantial part) of the market to competition. The CCS has also highlighted that although discounts schemes can take different forms, it is the effect of such discount schemes that will determine whether or not they constitute an abuse. For example, discounts that are conditional on buyers making all or a large proportion of their purchases from the dominant firm or discounts that are conditional on the purchase of tied products (i.e., products that buyers would have preferred to purchase separately) are more likely to have an exclusionary effect and be viewed as an abuse of dominance. The indicative market share for dominance in Singapore is 60%. However, dominance can be established at lower market shares, depending on other factors such as barriers to entry and countervailing buyer power.
In the CCS Guidelines, there is no reference to a price-cost analysis or an “as-efficient-competitor” test for the assessment of the competitive effects of a dominant firm’s discount scheme. Under the Competition Act and the CCS Guidelines, there is also no appreciability or de minimis threshold that needs to be satisfied for abuse of dominance infringements. The CCS had, in its previous abuse of dominance case against ticketing agent SISTIC, articulated its position that it is sufficient for the competition authority to show a likely effect and it is not necessary to demonstrate an actual effect on the process of competition, in order for an abuse to be established – a position that was upheld by the Competition Appeal Board in the appeal of the SISTIC case.
In January 2013, Coca Cola Singapore Beverages gave a voluntary undertaking to the CCS to amend its supply agreements with on-premise retailers which included the removal of loyalty- inducing rebates that had the effect of inducing on-premise retailers to purchase exclusively or almost exclusively from it.
Malaysia: In Malaysia, rebates and discounts schemes are generally recognised as pro-competitive.
However, dominant enterprises are prohibited from utilising such schemes to foreclose a market to competitors. For example, a firm would be disallowed from using such a scheme to prevent
rivals from entering the market. Additionally, loyalty discounts related to costs may be justifiable, but non-cost related discounts structured in a way to ensure customers are not available to other competitors may be problematic, depending on how much of the market is foreclosed. The
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market share for dominance in Malaysia is 60%.
However, dominance can be
established at lower market shares, depending on other factors such as barriers to entry and countervailing buyer power.
In the Guidelines by the Malaysian Competition Commission, there is no reference to a price-cost analysis for the assessment of the competitive effects of a dominant firm’s discount scheme. However, the Guidelines note that discounts or rebates may be a form of exclusionary conduct where a dominant enterprise is able to dictate the level of competition in a market by preventing efficient new competitors from entering or significantly harming existing equally efficient competitors - either by driving them out of the market or preventing them from effectively competing.
Rebates and discount schemes are not expressly law. However, such schemes may constitute an
mentioned under Indonesia’s abuse of dominant position.
Indonesia’s competition law prohibits business actors from (i) directly or indirectly determining
trade requirements with the purpose to prevent and/or impede consumers from obtaining goods and/or services with competitive price and quality; and (ii) impeding other business actors having potential to become competitors from entering the same relevant market. One of the thresholds
for dominance in Indonesia is where the business actor or a group of business actors control at least 50% of the market share.
In the 2004 ABC Battery case, the KPPU investigated a campaign by PT Arta Boga Cemerlang (“ABC”), which offered wholesale and semi-wholesale stores in the Java-Bali area with a 2% discount if they showcased ABC’s battery products and its promotional materials. Further, ABC Batteries also provided an additional 2% discount if the store agreed to not sell Panasonic’s battery products. Based on the volume of the sales of batteries in Indonesia from AC Nielsen, ABC had 90.8% national market share between August 2000–July 2001, which increased to 91.2% for the same period in 2002 and then decreased to 90.3% in 2003. The KPPU decided that ABC had abused its dominant position by entering into agreements with its retailers requiring them only to sell ABC batteries and not to sell Panasonic batteries. The KPPU cancelled all contracts made between ABC and the retail stores under this campaign.
Thailand: In Thailand, although rebates and discount schemes are not expressly mentioned, under the Trade Competition Act 1999, a business operator having market domination is prohibited from acting in an anti-competitive manner under Section 25 of the Act. Dominant players are prohibited from unreasonably determining or maintaining purchase or sale price for goods or fees for
well as unreasonably fixing compulsory conditions restricting opportunities in
purchasing or selling goods from competitors. One of the thresholds for dominance in Thailand is where the business operator has a market share in the previous year exceeding 50% and at least 1,000 million Baht in turnover.
Section 29 of the Act prohibits more generally business operators from carrying out any act which is not free and fair competition and has the effect of restricting business operations of other business operators. It is conceivable that the imposition of anti-competitive rebates may also be assessed under Section 29 of the Trade Competition Act.
Vietnam: In Vietnam, rebates and discount schemes are not expressly mentioned under the Vietnam Competition Law. However, they may possibly be assessed under Article 13 of the law
which prohibits dominant enterprises from, amongst others,
applying different commercial
conditions to the same transactions aimed at creating inequality in competition. It is not clear if
the offering of discounts (and hence different prices) to customers would constitute applying different commercial conditions to the same transactions, and further guidance may need to be sought from the Vietnam competition authority. The indicative market share for dominance in Vietnam is 30%.
However, it may be open to the parties concerned to argue that such schemes have beneficial effects like expanding demand and helping to cover fixed costs. These schemes may also allow for lower input costs
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for producers further down the supply chain and encourage them to compete more effectively. Moreover, such schemes may also reflect efficiency savings as a result of supplying particular buyers.
Given the increased scrutiny of MFN clauses and rebate schemes by competition authorities worldwide, businesses in the region should start paying heed if they are already engaged in such arrangements or are planning to enter into one, especially if they occupy a dominant position in the market.
As highlighted in this update, existing ASEAN competition authorities generally have the jurisdiction to investigate MFN clauses and rebate schemes under their respective competition law provisions although the regimes and considerations may differ slightly from jurisdiction to jurisdiction. As competition laws get enacted and implemented in the rest of ASEAN as part of the ASEAN Economic Community 2015 blueprint, businesses must also be alert to the competition risks in relation to such conduct in the remaining ASEAN jurisdictions.
As the competition laws across ASEAN differ, ensuring compliance
may be complex and business
arrangements should undertake a jurisdiction-specific review so as to comply with the various national competition laws in ASEAN.
Should you have any queries or wish to speak to us regarding your business’ compliance with competition
law in ASEAN,
please do not hesitate to contact us at [email protected] or
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