On 23 April 2002, the Canadian Standing Committee on Industry, Science and Technology released a report containing twenty-nine recommendations for enhancing Canada's competition law regime, including, among other things, two significant proposals related to the criminal pricing practices under the Competition Act. One involves repealing the criminal offences of price discrimination, regional predatory pricing, predatory pricing and disproportionate advertising allowances and their replacement with amendments to the civil abuse of dominance provisions of the Competition Act. The Committee's second key proposal in this context is to repeal the price maintenance provision. Horizontal price maintenance would form part of an amended conspiracy provision, while vertical price maintenance would be added to an expanded abuse of dominance provision. The article sets out a brief overview of the rationale for the Committee's recommendations regarding the Competition Act's pricing provisions, as well as the Federal Government's response to the Committee's proposal. The authors review the history leading to the current pricing provisions as well as the scope of the current provisions themselves. In an effort to provide context for the Canadian competition law regime related to pricing practices, a brief consideration of the treatment of such practices by competition law authorities in Europe and the United States is provided. Following a consideration of the policy implications of decriminalizing the anti-competitive pricing practices under the Competition Act, the authors conclude that despite the compelling arguments in favour of decriminalizing provisions, these provisions cannot be amended in isolation. The article concludes that the effects of decriminalization are far-reaching and that many issues must be addressed prior to implementing the Committee's various recommendations. The authors suggest that undertaking an analysis of the broad policy implications arising from decriminalization is the approach most likely to produce a consistent and balanced policy for the future enforcement of the Competition Act's anti-competitive pricing provisions.
World Competition