Unilateral conductUnilateral conduct by non-dominant firms
Are there any rules applying to the unilateral conduct of non-dominant firms?
Yes. A number of practices may violate the Act if engaged in by non-dominant firms. Section 77 of the Act addresses exclusive dealing, tied selling and market restriction engaged in by ‘a major supplier of a product’. Although qualifying as a ‘major supplier’ still requires a degree of market power, case law indicates that it is lower than that required for dominance.
Sections 75 and 76 of the Act address resale price maintenance and refusals to deal. A firm does not need to be dominant to violate these provisions. However, given that both require an ‘adverse effect on competition’ to be actionable, a degree of market power on the part of the offending firm is still required.