Section 72 Federal Competition and Consumer Protection Act 2018

Section 72 of the Federal Competition and Consumer Protection Act 2018 is about Abuse of a dominant position prohibited. It is under Part IX (Abuse of a Dominant Position) of the Act.

(1) Subject to the provisions of subsection (3), any abuse by one or more undertakings of a dominant position in a market is prohibited.

(2) For the purposes of this Act, an abuse of dominant position occurs where one or more undertakings in a dominant position

(a) charge an excessive price to the detriment of consumers;
(b) refuse to give a competitor access to an essential facility when it is economically feasible to do so;

(c) engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-competitive effect of that act outweighs its technological efficiency and other procompetitive gains; or

(d) engage in any of the following exclusionary acts, unless the firm concerned can show technological efficiency
and other pro-competitive gains which outweigh the anti-competitive effect of its act-
(i) requiring or inducing a supplier or customer not to deal with a competitor,

(ii) refusing to supply scarce goods to a competitor when supplying those goods is economically feasible,
(iii) selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to object of a contract,

(iv) selling goods or services below their marginal or average cost, or
(v) buying up a scarce supply of intermediate goods or resources required by a competitor.

(3) For the purpose of assessing market dominance, account shall be taken in particular of-
(a) the market share of the undertaking or undertakings concerned in the relevant market;
(b) its or their financial power;

(c) its or their access to supplies or markets;
(d) its or their links with other undertakings;
(e) legal or factual barriers to market entry by other undertakings;
(f) actual or potential competition by undertakings established within or outside the scope of application of this Act;

(g) its or their ability to shift supply or demand to other goods or services; and
(h) the ability of the opposite market side to resort to other undertakings.

(3) An undertaking shall not be treated as abusing a dominant position if its conduct-
(a) contributes to the improvement of production or distribution of goods or services or the promotion of technological or economic progress, while allowing consumers a fair share of
the resulting benefit;

(b) is indispensable to the attainment of the objectives referred to in paragraph (a); and
(c) does not afford the undertaking the possibility of eliminating competition in respect of a substantial part of the goods or services concerned.

(4) An undertaking may be considered as abusing its dominant position with regard to subsection (3) (c) of this section if the Commission is satisfied that its activities –
(a) have the effect of unreasonably lessening competition in a market; and
(b) impede the transfer or dissemination oftechnology.