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Competition Commission and South African Airways (Pty) Ltd (final) (18/CR/Mar01) [2005] ZACT 50 (28 July 2005)

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IN THE COMPETITION TRIBUNAL

REPUBLIC OF SOUTH AFRICA

Case Number: 18/CR/Mar01

In the matter between:

The Competition Commission Complainant

and

South African Airways (Pty) Ltd Respondent

REASONS AND ORDER

Introduction

1. This case concerns the legality of two incentive schemes, which the respondent, South African Airways (Pty) Ltd (“SAA”), the country’s largest domestic airline, has with travel agents. The Commission brings this complaint referral pursuant to a complaint brought by the Nationwide Airlines Group (“Nationwide”) a domestic rival of SAA.¹ The Commission alleges that the incentives constitute an abuse of dominance designed to exclude or impede SAA’s rivals in the domestic airline market. The Commission seeks an order declaring that the schemes constitute prohibited practices and the imposition of a fine of R 100 million. SAA denies liability and has put all the issues in dispute. We have found that SAA has contravened Section 8(d)(i) and our reasons for this conclusion follow.

Background to the case

2. On 13 October 2000 Nationwide lodged a complaint with the Competition Commission against SAA.² In brief the complaint alleged that SAA was trying to exclude it from the domestic airline market by engaging in a number of practices that were prohibited under the Competition Act (the ‘Act’). Four anti-competitive practices were alleged – (i) SAA was engaged in predatory pricing (ii) SAA was poaching key staff (iii) SAA had concluded agreements with travel agents in terms of which they received commissions on an incremental basis that it alleged had an exclusionary effect (iv) SAA had a reward scheme for employees of travel agents, known as “Explorer”, which it was also alleged had an exclusionary effect.

3. These claims formed the subject matter of an interim relief application that Nationwide then brought unsuccessfully against SAA in October 2000. The reasons for the failure of Nationwide’s application are set out in our decision in Nationwide Airlines (Pty) Ltd and Others versus South African Airways (Pty)Ltd and Others and no more need be said of that here, although it suffices to say the incentive schemes which are at the heart of the present case were the subject matter of the interim relief application, although they were alluded to in passing.³

4. Subsequently, the Commission concluded its investigation into the Nationwide complaint. It referred the complaint to the Tribunal on the 18 May 2001. In its complaint referral the Commission relies on only two of the alleged restrictive practices that were in the original Nationwide complaint, viz. those that relate to the incentive schemes for travel agents and the Explorer scheme. The other practices complained of have not found their way into the case before us nor has Nationwide pursued them by way of a non-referral.⁴ It would appear that the reason for the Commission’s selection of certain practices to constitute the basis of its present referral, are that similar practices have been scrutinised in cases in other countries and the Commission has sought to rely on this jurisprudence in this case.⁵

5. It is worth noting at this stage that although this case is most commonly associated with Nationwide it is not confined to it. On 23 August 2001 the Commission amended its complaint referral to refer, inter alia, for the first time to the alleged exclusionary effects of the scheme on the complainant and “other competitors”.⁶ It is common cause that the only other competitor at the time was Comair Limited a company which operates a passenger service in the Southern African region. By virtue of a licence from British Airways, it uses the name BA/Comair. We will for this reason refer to this firm as BA/Comair.

6. According to the Commission the abuse that is alleged in this case commenced in about April 1999 and by the end of the hearing (December 2004) was believed to still be continuing. Nevertheless the evidence we have had presented in this case has not always correlated with that period or with any consistent time period. The Commission has provided some figures for the period ending March 2001 (travel agents sales figures and sales of airline tickets at Johannesburg International), others for the period ending May 2001(Table B in figures bundle 2 a comparison of travel agency flown revenue and BSP), some for June 2001 (Table E2 which relates to passenger information on BA/Comair), and yet others until October 2004 (Table G figures bundle 2 which relates to passenger sales on Nationwide).

7. Perhaps the reason for this unevenness in selection is that information was collected at different times during the long life of this case and earlier information was not updated to conform to a common endpoint.⁷ We do not wish to exaggerate the difficulties in these inconsistencies as some of the information is of less probative value than others or the use of different periods has been appropriate because the data is being employed to illustrate different points.

8. Nevertheless from the point of view of fairness the case had to be pinned down to a finite period. For reasons that will become clearer later it is not the existence of the schemes in question that is pertinent but their nature, which has changed over time. For this reason, we have decided that for the purpose of assessing the duration of the abuse, we shall assume that the evidence of its existence commences in October 1999 and ends in May 2001, the latter date being the date, according to the Commission, when its investigative period ended.⁸ We will refer to this from now on in the decision as the ‘relevant period’. This is a period for which most of the more important information on effects is presented, although we will, for the purpose of interpreting information, make use of figures that come before and after that period. It is common cause however that the Explorer scheme ended in June 2002 and that the override scheme was still in existence at the end of this case.

9. Thus what we are saying is that it may well be that the effects of these two schemes may have been in existence for long after our reference period, but we believe that it is necessary to confine our findings to a finite period which corresponds with a period where evidence on market shares, sales of tickets through travel agents and effects on rivals’ sales of tickets can reasonably be correlated.

10. As will be evident from the date that this complaint was lodged by Nationwide (October 2000), and the date we heard final argument, (5 March 2005), this case has taken a long time to conclude. The blame for this delay has itself been a subject of contention between the Commission and SAA, and is discussed more fully below. It suffices to say at this stage that we find it highly undesirable for litigation to take so long to reach conclusion and that it satisfies neither the interests of complainants, consumers or respondents.

Synopsis of our approach

11. We first examine the operation of the two schemes at issue in these proceedings, as this is necessary to understand the case before us. We then examine briefly the theory of harm advanced by the Commission and SAA’s response to it. We then consider the various elements of the case that the Commission needs to establish in order to prove a contravention. We first, as is customary, analyse the relevant markets, then consider if the respondent is dominant in these markets and then move on to consider the abuse. The section on the abuse first considers arguments on what the legal test is and then examines the factual issues in light of that conclusion.

12. Finally, since we have found that SAA has contravened section 8(d)(i), we consider what remedy is appropriate.

PART I – THE MERITS

The incentive schemes

13. The three airlines that competed in the domestic market during the relevant period, all made use of travel agents’ services to sell domestic tickets, for which they paid by way of commissions.⁹

14. Initially it appears that the structure of the commissions was quite straightforward and travel agents received a standard basic commission. At some stage, and it is not clear from the evidence exactly when, but certainly well prior to the relevant period, airlines began introducing what is known as an override incentive scheme for paying commission.

15. The SAA override incentive scheme works in this way. Agents receive a flat basic commission for all sales up to a target figure that is set for them in the contract. The target figure is expressed in rand value. If they exceed the target they become eligible for two further types of commission that are paid over and above the basic commission, which continues to be paid on sales over the target. The first category is what is termed the ‘override commission’. This is an additional commission paid if the agent meets and exceeds the target. However, the override commission is not limited to the amount above the target, but is payable on the total of all sales achieved above and below the target. Thus assume the firm has a target of sales set at R 100 million. If it exceeds this target by R 10 million it will receive an override commission, typically set at 0,5%, on all it sales i.e. it will amount to R 550 000. Note because the firm continues to receive its basic commission of 7% as well, the average rate would now be 7,5%. Because the override commission is payable on all sales earned, even those below the target, it is referred to as the ‘back to rand one’ principle. In some contracts the override commission is set at a constant rate, in others, it is subject to a continual increase as the firm’s sales reach continually higher targets. Thus in the American Express contract the override rate is a constant 0,5%.¹⁰ In the Luxavia agreement, the override rate increases the more the agent exceeds its target. ¹¹ The rate starts at 0,5% when the firm reaches its target, but moves to as high as 1,55%, if it exceeds its target by 25%. The figures show that if it attains its peak override commission at this level, it would not only earn a base commission of around R 37 million, it would also earn an override commission on top of that of R 8 million.

16. But there is also a second category of commission for which the firm that exceeds its target is eligible and this is referred to as the ‘incremental commission’. If the travel agent earns a certain percentage of sales above target it then becomes eligible for this additional commission. This commission, unlike the override commission, is payable only on the amount above the target and is not therefore back to rand one, but is ‘back to rand base’. For this reason the incremental commission rate is typically much higher than the override and base commission rate, and in some agreements, is subject to escalation as well. Going back to our two models; in the American Express agreement, its incremental commission kicks in when it achieves sales in excess of 15% of its base target. The incremental rate commences at 14% for sales 15% above target, but rises steeply so that sales 35% above target are rewarded at a rate of 31%. Note the effect this has on the respective commissions. When American Express gets to 15% above target its basic commission is about R6,3 million while its incremental commission (14%) amounts to R1.6 million. When it reaches its peak at 35% sales above target its basic commission is R7,4 million, but its incremental commission (31%) is now R 8,5 million thus exceeding the basic commission.

17. The Luxavia agreement also has an incremental commission although it is structured differently. Here the incremental commission kicks in when sales are 5% above target, although the rate starts at only 5% and increases to a rate of 20% for sales that exceed the target by 25%. It thus differs slightly from the American Express structure in that the incremental commission starts becoming payable earlier, but at a lower rate and reaches a lower peak commission.

18. The target is a key feature in these agreements. Agencies do not face a common target that they must meet. Each firm is set a custom made target based on its previous annual sales figures with a percentage increment. Even the increments are not uniform and appear to be the subject of negotiation between the firm and SAA. In the agreement with American Express, the agency is required to achieve an annual growth of 25% from its target in the preceding financial year.¹²

19. It is not clear from the evidence as to whether SAA introduced the override scheme into the market or whether they reacted to what British Airlines was doing internationally. Nothing turns on this. What we do know is that when SAA first introduced the scheme there was no complaint in the market place. Mr Viljoen, the chief executive officer of South African Airways at the relevant time, has testified that he found these types of agreements in place when he joined SAA and that an agent had told him that they had been around since 1980.¹³

20. In October 1999, SAA, according to the evidence of Viljoen, adopted a more aggressive approach to the override scheme. In Viljoen’s words, he was not prepared to reward agents for generic growth i.e. growth that came about from inflation, as opposed to an increase in sales. SAA remedied this by firstly reducing the basic commission from 9% to 7%. Then it made the attainment of override and incremental commission more challenging, either by raising targets annually over and above the rate of inflation, and/or raising the point at which incremental commission became payable. At the same time, it increased the rate of the incremental and override commission.¹⁴ It is common cause that in order to retain their previous level of profitability, agents would not only have to exceed their targets, but also exceed them by some margin to take advantage of the override and incremental commissions. However for those who could ascend the peaks the rewards were bountiful. It is this mechanism and the alleged incentives it entails that are at the heart of the Commission’ s case on the abuse.

Explorer Scheme

21. The Explorer scheme rewarded individual travel agent consultants with a free international air ticket based on their achieving SAA’s sales targets. Conceptually it resembles frequent flyer schemes for passengers. The crucial distinction between the override scheme and Explorer is that Explorer is targeted at employees of the agency while the override scheme is aimed at the firm and hence its shareholders benefit.

22. SAA was the only airline offering this type of incentive to local travel agents. Mr Venter, the Financial Director of BA/Comair, testified that his airline could not match such a scheme because BA/Comair’s volume base of sales was too low in relation to that of SAA, to make it viable.

23. A second aspect of the Explorer Scheme was a bonus pool that allocated points to an agency as whole, based on the sales of all its consultants. More points are obtainable depending on the agency’s share of total SAA sales. According to Viljoen, this aspect of the scheme incentivises not only the individual consultant, but also the staff of the travel agency as a whole.¹⁵

24. The Commission state that the Explorer Scheme was in full operation during the relevant period and, in conjunction with the override incentive scheme, aggravated the anti-competitive effect of the override incentive schemes.

The Commission’s case

25. The Commission’s case is that the abuse of dominance relates to two relevant markets. The first is the market for domestic scheduled airline travel and the second is the market for South African travel agency sales of domestic scheduled air travel in South Africa.¹⁶ SAA is alleged to be dominant in both. It alleges that SAA has used its dominance in the travel agency market to impose on travel agents a system of compensation that not only rewards them in terms of an unobjectionable basic commission, but also rewards them additionally by means of commission calculated on the override and incremental incentives we referred to above. For the sake of convenience we refer to these latter two additional methods of compensation, collectively, as the override incentive scheme. The Commission argues that the effect of the override incentive scheme is to induce travel agents to sell more SAA tickets and less of those of its rivals when the agent has an opportunity to do so. The reason is that as the agent sells more SAA tickets its, rewards increase significantly. These rewards would be foregone if the agent instead sells tickets of SAA rivals. Thus agents have a compelling financial incentive to prefer to sell an SAA ticket to a customer over that of a rival. Crucial to the Commission’s case, is the fact that SAA re-designed its override compensation in 1999 by reducing the basic commission and increasing rewards via the override and incremental incentives, but travel agencies needed to achieve much higher levels of sales before these additional rewards became payable to them. Once attained however, the rewards became increasingly lucrative.

26. How does the travel agent manage this if the customer wants to fly with a rival? The Commission argues that the travel agents are not always able to influence the customer’s choice, but can do so frequently enough for their intervention to matter. The reason agents have this ability, is that airline ticket prices are so volatile that they are not transparent to customers and hence they are willing to accept the agent’s advice. The increased business that the scheme brings to SAA does not come so much out of new business, but rather at the expense of SAA’s rivals who, because their compensation schemes are less lucrative, since they sell less tickets, will never be in a position to reward the agent in the way the SAA scheme does. Thus the agent earns more by selling its next ticket on an SAA flight than on a Nationwide flight.

27. This, says the Commission, is what makes the conduct exclusionary in nature. The imposition of the Explorer scheme on top of the override scheme serves to enhance its exclusionary nature as the Explorer scheme operates at the level of individual consultants and employees.

28. The Commission goes on to argue that because travel agents can and do distort consumer choices to accomplish their own commercial objectives, this leads to two competitive harms. The first is that consumers in the short run will be flying on more expensive tickets and at less preferable times than if the ticket offering had been unbiased. Secondly, that SAA is able to perpetuate its existing dominance and to restrict new entry into the market and to inhibit its existing rivals from expanding in the market.

29. The net result of an anti-competitive exclusionary strategy is a less competitive market in which there are higher fares, less choice for consumers and less innovation.¹⁷

SAA’s case

30. SAA embarked on a war of attrition against the Commission’s case. Not only does it dispute the Commission’s approach to market definition as we later discuss, but it goes on to deny that it is dominant, even if these definitions are accepted. Secondly, it contests the notion that travel agents either have the inclination or the ability to move passengers away from their airline of choice to SAA. Thirdly, SAA disputes the Commission’s case on the effects of the schemes. SAA argues that not only has the Commission failed to establish a causal link between the schemes and the expansion of SAA in the market, and the corresponding demise of its rivals, but that it has also failed to demonstrate harm to consumers.¹⁸

31. SAA does not deny having re-designed its override scheme in 1999, but claims that this was not done to introduce exclusionary incentives, but rather to lower the costs of its distribution system by making agencies more efficient and not to reward them for sales growth that they had no part in i.e. increases due to ticket price inflation.

32. Finally SAA invokes the efficiency defence contemplated in sections 8(c) and 8(d). It argues that even if the scheme is found to be anti-competitive, it nevertheless enhances the efficiency of its distribution network because travel agents are incentivised to become more familiar with SAA products and hence better able to guide consumer choice.

The Relevant Markets

33. As this case concerns an alleged abuse of dominance, it is trite law that the Commission needs to establish that SAA is dominant in respect of some market for the conduct alleged to be abusive to be unlawful. In most abuse cases only one potential market is implicated and the relevant market debate turns on whether it has been defined with sufficient precision with respect to potential substitutes. In this case the debate is somewhat different, as we are dealing with the relationship between two possible relevant markets. These are not alternative market definitions, as SAA in its heads of argument suggests, but interdependent markets – without the one, the abuse could not be effected, without the other, the exclusion would be ineffectual.¹⁹

34. In our view this is an aspect of the case that SAA has failed to grasp and hence its counter-definition of the relevant market as one premised on specific routes at specific times ignores the possibility of the relationship.

35. That more than one market can be implicated in an abuse case is not novel in competition law. Cases in the European Union have dwelt upon these possibilities. Whish states that in the EU, it is not required that the abuse, dominance and the effects of the abuse all occur in the same market. For instance, in the Commercial Solvents case, Commercial Solvents ceased supplying its downstream customer with a raw material to manufacture a particular drug, since it wanted itself to enter the downstream drug-manufacturing market.²⁰ It was found to have abused its dominant position in the market for the supply of the raw material in order to better its own position in the downstream drug market, in which it had no presence, let alone being dominant. In the European cases of tie-ins, it is common for the abuse to be perpetrated in one market, while the effect is felt in another market.²¹

36. There is nothing in our Act that suggests that an abuse of dominance cannot be perpetrated in one market and the effect thereof be experienced in another related market. Any contrary interpretation would mean that a dominant firm could leverage its market power from one market into another, with impunity.

First relevant market – travel agency services

37. The Commission first alleges that there is a relevant market for “South African travel agency sales of domestic scheduled air travel in South Africa”. ²²

38. Let us see how they get to this conclusion. Airlines use travel agents to sell their tickets. To do this they remunerate travel agents for their services by way of a commission. This is not the only model for their remuneration, but was during the period of complaint.²³ Airlines have various options besides travel agents for selling their tickets. They may do so directly themselves, or use some other method such as the internet. The Commission argues that the latter two options are not adequate and hence not competitively relevant substitutes for the services of travel agents. In any event, the evidence is that during the relevant period 70-85% of domestic airline tickets, depending on the airline, were sold through travel agents.²⁴ It is also the evidence of Viljoen that if travel agents did not provide this service, each airline would have to set up satellite offices to provide these services. He states:

“This of necessity would require enormous capital expenditure and overheads which could only be recouped by airlines by way of possible fare increases. Such a result is clearly detrimental to passengers.”²⁵

39. There is a prior question – is the travel agent, the agent of the customer or the airline? The question is answered by understanding what we are analysing. Where the practice complained of relates to the effect of a remuneration scheme for travel agents, then the appropriate definition is that of a market in which airlines purchase ticket distribution services from travel agents.

40. The best evidence for the centrality of travel agents as a distribution mechanism is that of Viljoen who, in an effort to justify the override scheme, has argued that for airlines to duplicate these services by creating networks that replicate those of travel agents would be prohibitive.

“If I had to replicate that overnight, I don’t know how I will, we will have to treble, as I said our IT platforms. We would have to employ staff at a huge cost and train them.”²⁶

41. The reason for this is fairly clear, as the Commission argues. Internet sales, at least at this time, did not account for a significant number of sales during the relevant period. This is evidenced by the airline’s own Internet sales data: in 2001, SAA sold less than 0.3% of its ticket revenue through its own website.²⁷

42. Direct distribution channels are not an alternative for consumers who want to examine their choices. Thus although these channels are alternative means for airlines to sell tickets to consumers, they were not during the relevant period, satisfactory substitutes for consumers shopping for the best available options on domestic flights and the preponderance of consumers choosing travel agents over the other options speaks most powerfully to this point. Nor indeed is it likely that airlines would need to bother with incentive schemes if this outlet was not of such centrality. The best evidence for their centrality during the period is the significant percentage of each of the three airlines’ tickets sold through travel agents during the relevant period. (See Table 1 that appears below)

43. The figures show that all three airlines relied, during the relevant period, on travel agents for the sale of the bulk of their domestic airline tickets. By comparison, other vehicles for ticket sales cannot be regarded as competitively significant substitutes.

44. We find that first relevant market is the market for the purchase of domestic airline ticket sales services from travel agents in South Africa.

Dominance

45. Having defined this market we now turn to the question of whether SAA is dominant in this market.²⁸ Table 1 below sets out the respective sales of SAA, BA/Comair and Nationwide for one year during the relevant period, July 2000 to June 2001. These figures come from tables prepared by the Commission based on documents discovered by the three respective airlines. SAA has not challenged the veracity of the figures, insofar as they purport to represent the respective ticket revenues from sales through travel agents, and they constitute a useful proxy for the market shares in the travel agent market during the relevant period.²⁹

46. SAA’s dominance as a seller of tickets emerges from these figures. Not only does it account for 65,7% of total sales but also 69% of sales through travel agents.

Table 1: SAA’s Market Shares Relative to its Competitors *

Source: Tables A.1-A.3 Pages 1-3 Figures Bundle 2- * (July 2000 to June 2001)

47. As Table 1 shows, SAA’s sales dwarf those of its two domestic rivals. This difference in volumes is relevant to the theory of exclusion that the Commission advances. It is not only SAA’s absolute size that matters, but also its size relative to that of its rivals.

48. SAA sales constitute over 45% of sales of domestic airline tickets through travel agents and hence it is presumed to have market power in terms of section 7(a).³⁰

Second relevant market - Market for domestic airline travel

49. The Commission’s second relevant market is the market for “scheduled domestic air travel in South Africa.”³¹

50. This relevant market definition was the subject of great contestation. SAA disputes the way the Commission has defined the market not, as is usual, in a debate over possible substitutes, but at the conceptual level as to what market is relevant given the nature of the complaint. Secondly, even if the Commission’s definition is accepted, SAA disputes the method that the Commission has adopted to count market shares.

51. SAA has not presented a consistent position on the relevant market. In its answering papers, Viljoen argues for a market for the provision of domestic air travel services in the conveyance of passengers on particular domestic airlines routes, on particular flights, at particular times on particular days.³² Its experts, whose report came later in the proceedings, had a different view. They defined two types of relevant market. Firstly, that of all domestic flights on three city-pairs where SAA and Nationwide compete, with a separate market for business travel and another for leisure travel in each of these city-pairs.³³ Secondly, the market for distribution of domestic airline tickets.³⁴ In final argument, SAA adopted the stance of Viljoen and contended for the market for the provision of domestic air travel services in the conveyance of passengers on particular domestic airline routes on particular flights at particular times on particular days. SAA also argued that the channel to market whether by means of travel agents, internet or direct booking is immaterial to the service being bought and the relevant market.³⁵

52. We agree with the Commission that this approach to the relevant market is flawed because it fails to properly account for the abuse being advanced. In short, the relevant market is wrong because it is not relevant to the theory of harm being advanced. Were the case one of excessive pricing in respect of a category of airline tickets, then finding sub-markets in respect of particular classes of passengers on city to city pairs at particular times, may be feasible. It is not however pertinent at all to the market in which the abuse is being experienced (the travel agent market) or the market where the exclusion finally takes place, domestic air travel.

53. In our view the Commission has correctly defined the second relevant market as being the market for scheduled domestic airline travel, as this is the market where, if the behaviour is exclusionary, the final effect will be experienced. It will not be experienced in any narrower sub-market, as the exclusionary effect, if it exists, is experienced across the range of city-to-city pairings, passenger classes and flight times. Although SAA’s rivals are not present on all domestic routes, and at all times, they are potential competitors in respect of all scheduled flights where they do not already have a presence. The evidence is that the number, destination and time of flights is continually changing so that we cannot view the market as a static model where rivals only contest route times and schedules that they are on at a particular moment in time.

54. The override scheme applies to all domestic tickets sold by SAA uniformly, not to specific classes of tickets. If it has the effect the Commission contends for, namely that it incentivises agents to sell SAA tickets at the expense of its rivals, then this behaviour will be felt in the related market of domestic airline travel as whole. It can affect the sale of any of its rivals’ tickets on any route, at any time or on any class. SAA’s distinction may be of relevance if the abuse was perpetrated in respect of customers in the domestic airline travel market, but on these facts, it is not. The abuse occurs in the related market and its effects are experienced across the domestic airline travel market as a whole.

55. This market-wide effect was conceded by Viljoen:

“MR PRETORIUS “So in other words, do you agree with me that the same effect that is in the whole market will be in any single city pairing that we may speak about, if there is such an effect?

MR VILJOEN: Yes, there is. In that case, yes.” ³⁶

56. We find that the second relevant market is the market for domestic scheduled airline travel.

Dominance

57. Perhaps the most contested terrain in this matter has been the Commission’s figures and methodology in arriving at its conclusion that SAA is dominant in this market.

58. Dominance in a market may be calculated using various determinants. Most commonly the method is based on the relative sales revenues of the firms in the particular market. Whilst sometimes other figures are used, number of goods sold etc, this if often because sales revenue figures are not available, rather than the fact that they are not considered a reliable statistic for the purpose of determining market share.

59. In this case, the Commission has sought to establish the fact that SAA is presumptively dominant in the market for domestic airline travel by making use of data on ticket sales revenue. This is not an uncomplicated task as the discussion will show.

60. The first question before we examine the data is whether to attribute the figures of SAX and SAL, two other regional airlines that operate in the domestic market, to SAA. SAX refers to South African Express Airways (Pty) (Ltd). At the relevant time, Transnet owned 76,01% of SAX, with the balance held by Thebe Investment Corporation. SAL refers to South African Airlink (Pty) (Ltd). At the relevant time, SAA had a 10% interest in SAL with the balance held by private shareholders, unconnected to SAA or the government.³⁷

61. The Commission argued that since SAX and SAL have some common ownership links with SAA, share ground-handling facilities, code sharing, common sales outlets and common branding, we should conclude that they acted in concert with SAA. More importantly, the evidence of Viljoen suggests that these airlines operated as satellite services complementary to those of SAA and hence did not directly compete with it.³⁸

62. The Commission further makes the point that, insofar as the market for travel agency services is concerned, many of the override agreements concluded during the relevant period, including those of the largest agencies, included sales of SAX, SAL, or both, within the target figures. This means, the Commission argues, that from the perspective of these agents, the differences between these firms were irrelevant and hence it is proper to count them as part of SAA’s share for the purpose of the travel agency market.

63. In the market for domestic air travel, since we find that SAA is dominant without including the market shares of either SAX or SAL, we need not decide this particular issue, although we supply figures for both in Tables 2 and 3 below. In relation to the travel agency market, attributing their market shares to SAA seems correct, given that for the purpose of achieving their compensation levels, travel agents could include sales on SAX and SAL in their SAA totals.

64. The first source of data on ticket sales is the revenue generated by travel agents on tickets that they sell. The method by which this is done is called the BSP or bank settlement plan. When an agent sells a customer a ticket they take the first coupon in the ticket pack and send it to the BSP, which computes an amount owing to the airline. This amount, which reflects gross sales by travel agents, is referred to as ‘BSP revenue’. When the passenger crosses the gate at the airport and boards the aircraft for the flight in question, the coupon that is in the boarding pass is collected and is processed. That information is captured in an information system and is referred to as ‘flown revenue’.

65. BSP revenue is always higher than flown revenue for the equivalent number of sales. This is so for a number of reasons. In the first place, flown revenue excludes revenues owing to travel agents for commission. It also excludes cancellations and interline revenue, where part of a particular flight booking makes use of the services of another carrier.³⁹

66. Flown revenue is therefore a more reliable gauge of market share. However although the Commission, cognizant of this distinction, prepared its market share figures based on flown revenue as opposed to BSP, its approach was still criticised by Viljoen. Indeed, so many difficulties did he foresee that he seems to view the exercise as futile.

67. Here is a sample of what he said on this point:

“So the difficulty we have as an industry is there is no easy comparison of market share… If we use capacity, which is what I used, that is the maximum that it can be if you fill every seat providing you split it between point of sale. If you use BSP it is highly flawed because it is sold and not flown. There are cancellations. There are other airline sectors in there. There are yield management effects. If you use ACSA, again it is just feet crossing the threshold into an aircraft and it does not take into account the point of sale. The only true measurement of market share is actual carried or flown passengers of each airline, which statistics we do not have for our competitors…(p 535)…So are no accurate figures. (p529). You need to get the flown, carried passengers of each of the airlines taking into account where the tickets were bought, if you want an accurate measure of the true domestic market shares. There is nothing else. And we don’t have it. So we guess”.

68. Let us deal with these objections of Viljoen’s, and others not recorded in this extract to see if they have any substance.

i)Tickets may have been sold in another country not South Africa.

69. Viljoen says a flight may have been reflected as flown revenue even when the ticket was sold by an overseas travel agent. He stated that depending on the time of the year, this figure could constitute as much as 20–40% of the number of passengers. No documentary evidence was offered to support this however.⁴⁰ Nevertheless the Commission responded to this criticism and through us, requested further documentation from SAA.⁴¹ It requested SAA to provide figures of flown revenue of SAA on domestic services sold in South Africa, broken down into the following categories: Interline, online, direct sales, travel agent sales, and finally, total sales including interline and total sales excluding interline.⁴² It therefore was able to compute SAA’s market shares by excluding sales outside South Africa, thereby representing only domestic sales of domestic tickets, and also to exclude interline data.

70. Secondly, the Commission obtained data from each of the airlines and combined this with data from ACSA to calculate the number of domestic passengers passing through Johannesburg Airport who purchased tickets in South Africa. ⁴³

71. The revised figures submitted by the Commission at the resumption of hearing in November 2004, which we find in the record in Figures Bundle 2, cure the defects listed by Viljoen in that firstly, they excluded domestic air tickets sold abroad. Secondly, they addressed the concern that the figures didn’t account for cancellations since, being flown revenue, these figures excluded refunds, cancelled tickets, lost tickets, i.e. any ticket that are included in BSP that’s not contained in flown revenue. Finally, the figures excluded interline sales.⁴⁴

72. When the hearing resumed three months later, the Commission had had a chance to present these figures to Viljoen in cross-examination. The Commission showed, that in fact, there was no substantial growth in the tickets sold outside South Africa, but in fact, there was a decline.⁴⁵ Though denied by Viljoen, this was not seriously contested by SAA.

73. Viljoen also appears to be have doubted that the SAA figures could be cleansed of foreign sales as, according to him, it did not keep records in this way. Counsel for the Commission explained that the order requesting further information from SAA had required a breakdown that made the distinction and that this information had then been supplied. It is worth noting here that when Viljoen resumed his evidence he was no longer an employee of SAA, having left a month earlier and had, it appears, no part in the compilation of the document. Be that as it may, this fails to explain the discrepancy between what he says SAA could supply and what they did. SAA itself did nothing to attempt to fill this lacuna.

74. We accept that the order was validly complied with and that the figures supplied purport to be what they say they are and that the Commission correctly relies on this information to calculate market shares.

ii) The figures do not take into account ticket swaps between airlines.

75. Viljoen testified that SAA and BA/Comair have an arrangement that each will honour the other’s tickets. A passenger thus with a ticket issued by BA/Comair and who then flies on an SAA flight, would be reflected on flown revenue as an SAA sale. The Commission has not been able to correct for this feature, but Viljoen is not able to explain why it is statistically significant given that this is on his evidence a reciprocal arrangement.

iii) SAA figures will always be higher because it has a better yield per ticket sold.

76. Viljoen says that because SAA has a better yield management system it gets a better yield per seat than do its rivals.⁴⁶ Accordingly its revenues will always be higher than the other two even if they have sold the same number of seats. Flown revenue does not correct for this. Again this criticism is made abstractly and no exercise has been performed by SAA to show how statistically significant it is. BA/Comair and Nationwide provided the Commission with their average ticket yields from July 1999 to June 2001.⁴⁷ SAA was asked to provide the same figures, but stated that it did not have them. This came as a surprise to Viljoen, now testifying as an erstwhile chief executive, who said that in his day the data was available and that perhaps the new people did not know how to access it.

77. This is a most unsatisfactory response. Again, as with the flown revenue figures, it does not redound to the credit of SAA that it cannot have resolved anomalies in respect of documentation between the erstwhile chief executive officer and those responsible for answering the Commission’s requests.

78. Nevertheless the Commission still performed an exercise to show what the figures were using passenger numbers only. The Commission obtained from ACSA figures that showed the number of domestic passengers passing through Johannesburg International Airport who purchased tickets in South Africa. This data yielded the following set of market shares---SAA 66,8% BA/Comair 22,4% and Nationwide 10,8%. When the figures included SAL and SAX, then broken down they were as follows: SAA 56,9%, SAL 5%, SAX 9,7%, BA Comair 19,1% and Nationwide 9,2%. Viljoen still questioned whether these figures had the foreign sales extracted and more generally whether the ACSA figures were reliable. The Commission had called a witness from ACSA who testified that these figures came from the airlines themselves.

79. T he Commission also argued that revenue, as a basis of calculating market share is an accepted practice worldwide. Furthermore, revenue is used by all airlines, SAA included, to calculated commission and incentive payments.

80. We would agree. Even though the Commission has done its best to correct for this alleged distortion by extracting passenger figures which reveal much the same figures, it is not clear, as a matter of antitrust economics, that Viljoen’s objections on this point have any substance. The fact that a firm’s revenues are higher per unit than those of its rivals, does not mean that sales revenue has to be adjusted to correct for this. It is precisely because it is able to attain these revenues, that is of interest.

81. In our view the Commission has done a more than thorough task in assembling and analysing the sales revenues and has correctly come to the conclusions on market shares that SAA has. Let us now consider the figures.

82. We set the various figures that the Commission has extracted in their various permutations in Tables 2 and 3 below.

Table 2: Domestic market share of SAA using various data sources (%)

Notes: ¹ Calculation excludes SAX and SAL.

Sources: ² Table A.1, Figures Bundle 2, p1. ³ Figures bundle 2, Table C, p5.

Table 3: Market Shares of SAA based on revised estimates

Source: Figures Bundle 2 pages 1, 5

83. What most of these figures suggest is a market share figure close to 66%. Even if one excludes the SAX and SAL and uses only passenger numbers, the most favourable figure in the tables for SAA, the market share is still 57%. Is it likely that there remains in this lowest possible figure, methodological gremlins that the Commission has not ironed out that affect SAA shares more disproportionately than its rivals that could bring this figure below 45%? We are satisfied that there are not.

84. We are further comforted by the fact that other proxies for market share (i.e. other than revised flown revenue and passenger figures) exist, which tell a similar story. We have the figure offered by Ms Harris, of Rennies Travel, SAA’s witness, that between them, SAA, SAL and SAX manage on a daily basis, approximately 70% of the domestic flights or departures in this country.⁴⁸

85. Then we have the consistency between these figures and internal travel agency estimates. For instance one travel agent in correspondence remarks in a letter to SAA that “the nearest other airline barely achiev[es] one third of SAA sales.” ⁴⁹

86. Not only has SAA not come up with figures of its own, its objections to the Commission’s figures have been speculative, trivial and ultimately, unhelpful. Never did SAA say, “ you have got it wrong by making this mistake this is what the figures are.” Rather it adopted the pose of a caviller without offering a version of its own, a task which could not have been difficult, given the small number of players in the market and its own market intelligence, being the largest airline. The Commission by contrast has done a thorough and diligent job in establishing the figures and has during the course of the hearing met all of SAA’s objections to the extent it has been possible to do so.

87. In our view the Commission has demonstrated that SAA’ s market share is well over 45%. Because we find that SAA is presumptively dominant we need not deal with a good deal of the evidence raised by SAA’s expert witnesses to the effect that it does not in fact have market power. This evidence is irrelevant, because once we find a firm’s market share exceeds the 45% threshold it is presumed to be dominant in terms of section 7(a) which states categorically that a firm is presumed dominant if it has 45% of the market. This is to be contrasted with section 7(b) where the presumption of market power is rebuttable. SAA is not just dominant but overwhelmingly so.

88. We therefore conclude that in the second market for domestic airline travel, SAA is dominant in terms of 7(a).

Conclusion on market shares in both markets

89. Although we have examined at some length whether SAA has market power in the domestic airline market it is not necessary for the Commission to show that this is the case. The Commission’s case depends on proving market power in the primary market where the abuse occurs and that is in the first market for travel agency services. Because the abuse occurs here, and its effects are only felt in the secondary market of airline travel, it is only really necessary for the Commission to establish that it has market power in this first market.

90. Nevertheless the Commission has, as we have discussed, done more than this and shown SAA is presumptively dominant in both markets. Given the relationship of the markets, it would be highly unlikely for SAA to dominate the market for travel agents services if it was not dominant in the adjacent market for domestic airline travel.

91. But the Commission has gone even one step further than relying on legal presumptions. It has shown that SAA enjoys market power in relation to travel agents. Recall this is the market power that is relevant in this case otherwise the abuse could not be perpetrated. The evidence in this case of the negotiations with travel agents and how SAA was able to impose a remuneration model on them against their will, is an example of this. In the words of Viljoen, who was never afraid of the blunt answer:

“MR VILJOEN: No, the fight was about the fact that I’m paying them less, because even if they make the targets, they are getting less, much less.

ADV PRETORIUS: But I’m saying they weren’t happy with what you offered them.

MR VILJOEN: Not at all.

ADV PRETORIUS: Why did they accept it?

MR VILJOEN: Why did they accept it?

ADV PRETORIUS: Ja

MR VILJOEN: Because I said I’m not paying more. That’s it.” ⁵⁰

92. Mortimer for his part stated that:

“ Our market power as travel agents is weak. We are not able to dictate our revenue model in the South African market. In South Africa suppliers determine the average level of commissions and we as agents look to our profitability form our ability to be successful in implementing the override agreements.” ⁵¹

93. SAA has not led any convincing evidence to rebut the notion that it has market power in relation to the travel agency market. Its experts queried if the market should not be analysed as a dual sided market. That is a market where two or more distinct sets of customers have an interdependent relationship with one another by virtue of a relationship with a common intermediary. For antitrust purposes, such a relationship, some recent literature suggests, may be important because the market power or alleged market power of the intermediary may be affected by its relationship with not just one set of customers, but perhaps two or more.⁵² Thus a credit card company may need to be looked at not only from its relationship to its cardholder customers, but also the stores which accept its cards. The point about this theory, as Holt has correctly noted, is that it relates to the market power of the intermediary between two sets of customers. In this case the travel agent is an intermediary between the supplier airlines and its customers. But the travel agents market power is not at issue in this case and therefore the theory, interesting as it maybe, has no application.

94. Now recall that a firm that enjoys a market share between 35% and 45% is presumed dominant unless it can show otherwise. This means that even if SAA’s market share in the travel agents market is below 45%, SAA has not rebutted the presumption of market power. If it was below 35%, a figure no one, not even the most optimistic SAA witness has seriously contended for, the Commission would have the onus of proving market power and that, on the present evidence, it certainly has done.

The Abuse

95. Having found that SAA is dominant in the two relevant markets we now consider whether the Commission has established that SAA has abused its dominant position.

Legal standard

96. The Commission, as noted, alleges SAA’s Explorer Scheme and the incentive scheme amount to a contravention of section 8(d)(i) and in the alternative, a contravention of section 8(c).

97. We set out below the whole of section 8 with the relevant sections underlined because the structure of the section becomes relevant to the interpretation of arguments to be considered.

Section 8

It is prohibited for a dominant firm to-

1. charge an excessive price to the detriment of consumers;

2. refuse to give a competitor access to an essential facility when it is economically feasible to do so;

3. 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 or other pro-competitive gain; or

4. engage in any of the following exclusionary acts, unless the firm concerned can show technological, efficiency or other pro-competitive gains which outweigh the anti-competitive effects of its act –

   1. requiring or inducing a supplier or customer to not deal with a competitor;

   2. refusing to supply scarce goods to a competitor when supplying those goods is economically feasible;

   3. 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 the object of a contract;

   4. selling goods or services below their marginal cost or average variable cost; or

   5. buying-up a scarce supply of intermediate goods or resources required by a competitor.

98. Both these sub-sections refer to ‘exclusionary acts ’ a term defined in the Act as:

“..[an] act that impedes or prevents a firm from entering into, or expanding within, a market;”⁵³

99. We have previously observed in York Timbers that 8(c) places a considerably greater burden on a complainant than 8(d). The first major difference between the two sub-sections is the treatment of the evidential burden in respect of the efficiency justification.⁵⁴ In terms of section 8(d), the onus of proof of the efficiency justification is on the respondent, whereas in section 8(c), the onus to negate it is on the complainant. Another difference is that in terms of 8(d) an administrative fine is competent for a first contravention. It is thus treated in the same way that the Act treats the other so-called per se contraventions.⁵⁵ In contrast, section 8(c) is treated in the same way as other ‘rule of reason’ contraventions for which a fine is not competent, unless the conduct is substantially a repeat by the same firm of conduct previously found by the Tribunal to be a prohibited practice.⁵⁶

100. There is a third difference. Paragraph (d) makes specific reference to five exclusionary acts, whereas paragraph (c) refers generally to an ‘exclusionary act’. It would follow that any exclusionary act not captured in the list in paragraph (d) would fall to be considered in terms of paragraph (c).

101. It would seem from the manner in which the section is drafted, that conduct in (d) is presumed to be exclusionary, whereas conduct not in the list would still have to be established as exclusionary. It is established under (c) only if it meets the definition of an exclusionary act.

102. The reason for these differences in treatment is that the exclusionary acts in 8(d) are listed, presumably evidencing the legislature’s view that these are the more egregious of the exclusionary acts and so firms who are dominant are on notice that they must behave with due caution in relation to this conduct, whereas in 8(c) no acts are listed and hence the complainant would have to prove that the conduct sought to be impugned is indeed exclusionary. Here the dominant firm has no advance notice that the conduct is deemed exclusionary in nature, and hence may be in some danger zone. This explains the policy choice to shift the onus in (c) to the complainant in respect of negating efficiencies, and secondly, not exposing firms to a fine for first time offences.

103. SAA asks us however to give a different reading to section 8(d). SAA argues that it is not enough to prove that the respondent did one of the acts listed in 8(d). The Commission must still prove that it is exclusionary i.e. that it impedes or prevents a firm from entering into, or expanding within, a market. Thus one would have to read into the text of 8(d) the revised words, so that it would now read: “engage in any of the following [exclusionary] acts, if they are exclusionary…”. SAA argues that the legislature did not intend to create a per se offence in 8(d), it merely meant to signal that if exclusionary conduct of the kind listed, is found to be the exclusionary conduct in question, the consequences for the respondent are the reverse in onus and the prospect of a first time fine. SAA argues that although its interpretation requires reading in ‘ if they are exclusionary’ it does account for the presence of the words ‘exclusionary acts’ in 8(d). If the listed conduct were per se exclusionary, there would be no need for the legislature to have referred to the words ‘exclusionary acts’, hence, on the SAA interpretation, we avoid redundancy.

104. SAA’s approach is not supported by the language of the section, which states, quite unambiguously, the “.. following exclusionary acts”. In section 8(c) where the Act does require proof that the conduct is exclusionary the language is different and refers to “an exclusionary act other than act listed in paragraph (d”). SAA’s approach is also inconsistent with the way in which the per se sections are treated elsewhere in the Act where the listing of specified conduct has created the offence. The whole point of the legislature’s approach is to treat certain conduct in this fashion so that its exclusionary nature does not have to be established each time. The interpretation of SAA would create some species of ‘middle ground’ contravention neither per se nor rule of reason⁵⁷. The creation of this unique species to support this reading seems wholly unwarranted. The legislature must be seen to be taking a view that either the conduct is exclusionary in the sense meant by the Act, or not. If not, why is 8(d) then worth the candle? If the point of the specified list is to warn firms in advance what conduct puts them into the danger zone, how is that purpose served if the conduct is only susceptible to ‘consideration as’, (SAA’s reading) rather than being ‘deemed’, exclusionary?

105. We find that as a matter of law if the Commission proves that SAA's conduct “requires or induces a customer not to deal with a supplier” then it has proved an exclusionary act. It is not necessary for the Commission to go on to prove that the conduct “impedes or prevents a firm from entering into, or expanding within, a market”. This is consistent with our finding in Patensie where we held that section 8(d) does not require the showing of an exclusionary effect:

“However, as already noted, in terms of Section 8(d) the complainant does not have to establish that the act complained of has an exclusionary effect, that is, that it prevents a firm from expanding in the market - if it is established that one of the acts specified in the various sub-clauses of Section 8(d) has been perpetrated and that the perpetrator is dominant, then the exclusionary nature of the act is presumed. We find that the Commission has discharged this onus.”⁵⁸

106. Perhaps a more fruitful area of debate is what consequences flow from the fact that an act is ‘exclusionary’? The question is then whether conduct deemed (8(d)) or found to be (8(c)) an exclusionary act , is, for that reason, impugnable (subject of course to the conclusion on the efficiency justification). That is not a simple answer. In York Timbers, an interim relief application, we stated that this was not sufficient:

“99. We conclude then that even if the facts had established a refusal to supply by SAFCOL, it would not have been possible to impugn this practice under the Competition Act. It is not enough to show that a given practice is a product of market power. It must also be shown that the act complained of actually extends that power or creates new sites of power. This has not been established and, accordingly, the application for interim relief in respect of the alleged violation of Section 8(d)(2) is denied.”  ⁵⁹

107. One approach is to say that if the act is exclusionary, it is deemed to have an anti-competitive effect. On this approach the only issue that remains to be decided is the balancing of the efficiency justification against this deemed anti-competitive effect.

108. The problem with this approach is that it can lead to the outlawing of conduct that has no anti-competitive effect. The definition of an exclusionary act is very broad indeed. Discussing not dissimilar language, Areeda and Hovenkamp, in their treatise have this to say:

“In defining undesirable conduct, we are concerned mainly with exclusionary behaviour, that which prevents actual or potential rivals from competing or impairs their opportunities to do so effectively. But this term and the root idea are also too broad, for they embrace all competitive behaviour: All successful competitive moves tend to exclude, particularly in oligopoly markets.⁶⁰

109. The same observation by the authors can be made in respect of our Act’s definition of an exclusionary act. The term is not a useful filter for determining whether conduct is competitive or anti-competitive; both can sensibly be included in the definition. If, however, we do not regard the notion of anti-competitive effect, referred to in both paragraphs (c) and (d), as inferentially linked to an exclusionary act, this danger can sensibly be averted. It means that that the notion of what it anti-competitive is something different to an exclusionary act.

110. At a purely textual level they appear to be notionally different. If they were congruent notions, then the legislature need not have troubled itself with introducing the language anti-competitive effect into the paragraphs, but would instead have referred to exclusionary effects. We suggest that there is a difference between an exclusionary act as defined and the inference that it has an anti-competitive effect. Without some notion of what the anti-competitive effect is it would be impossible to perform the weighing with the efficiency justification that both (c) and (d) require. In order to perform a weighing of the anti-competitive effect on the one side of the scale to the efficiency gain we need to have some notion of its quantitative effect. But the definition of an exclusionary act is descriptive of a conduct’s ‘type’, not its ‘gravity or extent’. Thus by way of example the refusal to supply one customer with a de minimus market share and the refusal to supply a substantial number of customers, representing a large proportion of the rest of the market are both exclusionary acts in terms of d(ii), but they have very different competitive consequences.

111. For this reason the Act requires a finding both in terms of paragraphs (c) and (d) that the complainant not only establishes that there has been an exclusionary act, but also that it has an anti-competitive effect.

112. We have to answer two questions if we follow this approach. Firstly what do we mean by anti-competitive effect? Secondly, if it means something different to the notion of an exclusionary act, what purpose does reference to the latter term serve in section 8? Why does reference to an anti-competitive effect not suffice? If it is after all anti-competitive, does it matter if we call it exclusionary first?

113. To answer this we must appreciate the purpose of the abuse of dominance prohibition in our Act.

114. Modern antitrust law identifies two species of abuse of dominance.⁶¹ The one kind, termed exploitative, focuses on the effect of the abuse on the consumer, who, in consequence of the output decisions of the dominant firm, may be facing output constraining behaviour and hence higher prices. Section 8(a), which prohibits a dominant firm from charging an excessive price to consumers, is an example of this kind.

115. The other kind is an abuse that has an exclusionary effect, and this is what concerns us in terms of sections 8(c) and (d). It is exclusionary in the sense that it is conduct which excludes or impedes the growth of rivals in the market. The theory of harm that explains why exclusionary behaviour may be anti-competitive is usually explained in this way. An act that is exclusionary of rivals can lead to the creation or enhancement of a dominant firm’s ability to exercise market power. By its exercise of market power it can adversely effect consumer welfare by output limiting decisions. As we see this consists of a set of stages of assumptions before we lead to a conclusion of welfare loss. Should an abuse of dominance provision that seeks to proscribe exclusionary behaviour require there to be evidence of each part of a chain of causation establishing the links from the act of exclusion to the loss of consumer welfare? Areeda and Hovenkamp caution against such an approach:

“However because monopoly will almost certainly be grounded in part in factors other than a particular exclusionary act, no government seriously concerned about the evil of monopoly would condition its intervention solely on a clear and genuine chain of causation from exclusionary act to the presence of monopoly”⁶²

116. It is comforting to note that even in United States law this is still a matter of controversy. Two positions have emerged in the case law. Sometimes this eclecticism manifests itself in the approach taken in the same decision. Fox notes in her gloss on the Court of Appeals decision in Microsoft that:

“ While it may be sui generis in many respects, it is typical in its

ambivalence regarding seriously exclusionary practices that may

not have output effects.”⁶³

117. And later Fox asks rhetorically:

“What did the court mean by “anticompetitive” and did it use that word

consistently.”⁶⁴

118. The first approach in the case law favoured by some writers notably those close to a Chicago School, requires a showing of harm to consumer welfare in order to make conduct unlawful. Absent such a showing these writers contend there is a danger that courts will “mistake protecting competitor profits for consumer welfare”.⁶⁵ These writers find authority for their position in decisions of the Supreme Court such as Brooke Group a case dealing the standard of proof required in predatory pricing claim. The Court noted:

“Mistaken inferences are especially costly, because they chill the

very conduct the antitrust laws are designed to protect.” ⁶⁶

119. Muris, who is representative of the views of this school of thought, argues that:

“Both the history of the Supreme Court cases, as well as an analysis

of the weak empirical foundation of much modern economic theory,

suggest that so-called exclusionary conduct can be condemned as

monopolistic only after a full analysis, including consideration of

whether the practice in fact has an anticompetitive effect.” ⁶⁷

120. For Muris anticompetitive effect is the ”ability to raise price and restrict output.” ⁶⁸

121. The second approach is to find liability if there is evidence that the exclusionary behaviour will lead to substantial market foreclosure. Writers who support this approach are concerned that if harm to consumer welfare is the standard, antitrust law will be under-deterrent, because evidence of harm to consumer welfare is very difficult to come by. Support for this approach is found in earlier Supreme Court decisions, such as Lorain Journal and Otter Tail Power Co. In Lorain Journal the Court held that it is:

“not necessary to show that success rewarded appellants attempt to

monopolise”⁶⁹

122. In other words what the court is saying is that proof of anti-competitive effect, in the sense that Muris understands it, is not necessary.

123. The second approach is best articulated in Fishman v Wertz a decision of the Seventh Circuit. The Court held that the antitrust laws protect competition and the competition process, not results. It was no defence that consumers were not hurt. Thus:

“[Defendants] assert that “ the antitrust laws do not apply where

there is no consumer interest to protect.” … The dissent makes the

same argument about consumer effect. “ Antitrust law condemns

results harmful to consumers….” “We agree that the enhancement

of consumer welfare is an important policy – probably the paramount

policy – informing the antitrust laws… Some Supreme Court cases

indicate that effect on ultimate consumers is, in an appropriate

context, a significant consideration in analysing a business practice to

see whether there has been an antitrust violation…The antitrust laws

are concerned with the competitive process, and their application does

not depend in each particular case upon the ultimate demonstrable

consumer effect. A healthy and unimpaired competitive process is

presumed to be in the consumer interest.”⁷⁰ (Our underlining)

124. Areeda and Hovenkamp in their treatise have suggested a test that has influenced later decisions. They suggest that:

“In sum, ‘exclusionary’ behaviour should be taken to mean conduct

other than competition on the merits or other than restraints

reasonably necessary to competition on the merits, that reasonably

appear capable of making a significant contribution to creating or

maintaining market power.”⁷¹ (Our underlining)

125. In Microsoft we hear echoes of this approach when the Court of Appeals commenting on one aspect of Microsoft’s behaviour in excluding rivals from the boot-up sequence said:

“ Because this prohibition has a substantial effect on Microsoft’s

market power, and does so through a means other than competition

on the merits, it is anticompetitive.” ⁷²

126. In Europe, Fox argues, the approach to exclusion cases is “often phrased as a dynamic one: the right of market actors to enjoy access to the market on the merits.” ⁷³ She goes on to argue that in European Court of Justice cases it is clear that:

“harm to competition is a wider concept than the result –oriented

output limitation. Use of dominant power to procure significant

advantages not on competitive merits, thereby pre-empting

competitors’ opportunities, is a harm to competition under Article 82.” ⁷⁴

127. What is happening in this debate in the case law and academic writing takes us back to the chain of causation referred to by Areeda.

128. What are courts doing when they find behaviour to be anti-competitive in the absence of evidence of harm to the consumer? Essentially they are consciously, or sometimes unconsciously as Fox suggests, making inferences of fact and law and sometimes, mixed fact and law, to arrive at findings of competitive harm by way of proxy. Courts may find that, as a matter of fact, a particular business practice is exclusionary. As a matter of fact, a court may also find that the practice has the potential to foreclose the market for competitors of the dominant firm. As a matter of inference on the facts the court may find that this is likely to foreclose competition. As a matter of inference the court may determine that if competition is foreclosed, there will be an adverse impact on competition.⁷⁵ This latter type of inference, as Fox has pointed out, is not factual, but legal. It is based on an assumption that :

“.. markets are more likely to reward merit if they are not clogged by substantial unjustified exclusions. Moreover, although we may not know the direction in which ‘open’ competition will take us, we may prefer to let the chances of competition –rather than the strategies of the dominant firm- take us there.” ⁷⁶

129. What this excursion into the case law and commentary suggests is that there is respectable authority for the notion that exclusionary practices should not require evidence of actual competitive harm for a finding of abuse. A finding is still possible if there is evidence that the exclusionary practice is substantial or significant, or expressed differently, has the potential to foreclose the market to competition. If it is substantial or significant it may be inferred that it creates, enhances or preserves the market power of the dominant firm. If it does the latter it will be assumed to have an anticompetitive effect.

130. It is however necessary not to limit that competitive harm to the notion of consumer harm because of the danger, as the writers we have quoted have suggested, that the Act would then have introduced an elaborate scheme to regulate exclusionary abuses of dominance, with deemed exclusionary conduct and reverse onuses, only to find that it is under-deterrent. If on the other hand we inferred harm to competition simply by