Unilateral conductUnilateral conduct by non-dominant firms
Are there any rules applying to the unilateral conduct of non-dominant firms?
The Act, unlike EU competition law, contains a prohibition against anticompetitive public sales activities (Chapter 3, article 27). According to this rule, the SCA may order a public entity (eg, a municipality or a publicly owned firm) to stop engaging in sales activities (somewhat more narrow term than ‘economic activity’, see question 5), if these activities distort competition with private firms. This prohibition captures unilateral conduct by non-dominant entities (ie, it is not necessary to establish dominance or market power for the prohibition to be applicable). A motive for the introduction of the prohibition (in 2010) was in fact that the regular competition rules were not always applicable to competition concerns in public-private situations (eg, as a dominant position could not be established for the public entity). The fact that an entity is public may itself put it in a situation where it unilaterally can distort competition, without necessarily having high market shares. A public entity may, for example, absent profit aims and the risk of bankruptcy, be able to price at unsustainable levels.