On May 18, 2011, the Competition Bureau issued its new Fee and Service Standards Handbook for Written Opinions to reflect the significant amendments to the Competition Act that came into force in 2009 and 2010 (see news release: Competition Bureau Updates Fee and Service Standards Handbook for Written Opinions).
In releasing its new Fee and Service Standards Handbook, the Bureau said:
“The changes to the Handbook were necessary to reflect amendments to the Act that came into force in 2009 and 2010, including changes to the conspiracy provision, the addition of a provision governing competitor collaborations that substantially prevent or lessen competition, and changes to other provisions of the Act relating to certain pricing practices. The release of the Handbook follows the issuance of the Bureau’s revised Fee and Services Standards Handbook for Mergers and Merger Related Matters on October 22, 2010.”
Under section 124.1 of the Act, any person may apply to the Commissioner, together with supporting information, for a binding written opinion regarding the applicability of any provision of the Act. A written opinion is binding on the Commissioner provided that all material facts relating to the proposed conduct have been submitted for an opinion (which remains binding for as long as the material facts on which the opinion was based remain substantially unchanged and the conduct is carried out substantially as proposed).
Binding written opinions are available, subject to the Commissioner’s discretion to issue an opinion, for proposed conduct only under the following provisions of the Competition Act, among others:
price maintenance (section 76), exclusive dealing, tied selling or market restriction (section 77), abuse of dominance (section 79), the new civil agreements provision (section 90.1), conspiracy (section 45), misleading representations and deceptive marketing practices (sections 52 to 55.1 and 74.01 to 74.06), deceptive telemarketing (section 52.1), deceptive prize notices (section 53), multi-level marketing and pyramid selling (sections 55 and 55.1), performance claims (section 74.01(1)(b)) and promotional contests (section 74.06).
For past written opinions issued by the Bureau see: Written Opinions.
Key updates in the Bureau’s new Handbook include:
– How the Commissioner of Competition determines whether to issue binding written opinions under section 124.1 of the Competition Act for proposed business conduct (while the issuance of binding advisory opinions under the Act is discretionary, the Bureau will in some cases provide non-binding informal advice regarding proposed business conduct).
– What information is required by the Bureau to commence applicable service standard periods (the Bureau has adopted non-binding service standard periods for its internal performance, including for the issuance of binding written opinions).
– When service standard periods may be paused or terminated by the Bureau.
– How the Bureau determines the complexity level for a proposed practice or conduct (the Bureau assigns complexity designations – namely non-complex or complex – to matters including the issuance of written opinions and merger review, which determines the Bureau’s service standard periods).
– There have been no changes to the required fees or service standard periods applicable to written opinion requests under section 124.1 of the Act.
For a copy of the Bureau’s new Handbook see: Fee and Service Standards Handbook for Written Opinions.
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