Investigating an alleged abuse of dominant position under the Federal Competition and Consumer Protection Act No. 1 2018 (“the Act”) is a 3-step process as follows:
- Firstly, an assessment whether an undertaking is in a dominant position within the meaning of Section 70 (1)&(2) of the Act (“Dominance”);
- Secondly, where the undertaking under investigation is found to be in a dominant position, assessment whether the market conduct of the undertaking under the investigation amounts to an abuse of its dominant position (“Abuse of Dominance”). The second step of the process is only relevant if the Federal Competition and Consumer Protection Commission (“Commission”) finds the undertaking under investigation to be in a dominant position in the first step of the process;
- Thirdly, determination whether the alleged conduct of the dominant undertaking will result or results in any technological efficiency and other pro-competitive benefits and whether those technological efficiencies and pro-competitive efficiencies outweigh the anti-competitive effect of the undertaking’s Abuse of Dominance. Similarly, Step three only becomes relevant if the alleged conduct of the dominant undertaking is found by the Commission to be an Abuse of Dominance (“Efficiency Exception”).