August 10, 2020
Practical Law Canada has published a New Legal Update, which discusses the Competition Bureau’s revised Competitor Collaboration Guidelines. This Update includes an overview of sections 45 and 90.1 of the Competition Act, a summary of the Bureau’s key proposed changes and implications for collaborations between competitors.
Below is an excerpt with a link to the full Legal Update at Practical Law.
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On July 29, 2020, the Competition Bureau (Bureau) announced that it was updating its Competitor Collaboration Guidelines (Collaboration Guidelines), inviting public comments by September 29, 2020 (see News Release, Competition Bureau invites feedback on updated Competitor Collaboration Guidelines, Competition Bureau, July 29, 2020).
The Bureau’s Collaboration Guidelines, which were issued when the Competition Act, R.S.C. 1985, c. C-34 was amended in 2009, describe the Bureau’s general approach to applying sections 45 and 90.1 of the Competition Act (the criminal conspiracy and civil agreements sections).
In 2009, Canada introduced a new two-track conspiracy regime under the Competition Act, which came into force in 2010. Following the changes, hard-core conspiracy agreements between competitors (price-fixing, market allocation and output restriction agreements) became per se criminal offences (that is, without the requirement to prove any competitive effects) pursuant section 45.
Other types of agreements between competitors that may prevent or lessen competition substantially became subject to a new civil provision regarding agreements between competitors under section 90.1.
For more information, see Practice Notes: Canadian Conspiracy (Cartel) Law, Conspiracy Defences, Cooperating with Competitors: Business Briefing, Criminal Competition Law Enforcement and Establishing and Avoiding a Conspiracy Agreement.
According to the Bureau, it is updating its Collaboration Guidelines to “reflect its experience reviewing competitor collaborations since the 2009 amendments to the Competition Act.” The updates also reflect relevant court and Competition Tribunal decisions over the past ten years, including the Bureau’s challenge of e-book publishers and retailers.
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For the full Update, see: Competition Bureau Issues Updated Competitor Collaboration Guidelines for Public Comment.
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