UAE Law and Practice Contributed by: Alex Saleh, Asad Ahmad, Khaled Abu Orabi and Khaled al-Khashab, GLA & Company
commodities or services or suddenly creating their abundance, which may lead to trading these com - modities or services at unreal prices; • dividing markets or assigning clients based on geographical areas, distribution centres, quality of clients, seasons and time or any other basis that may negatively affect competition; and/or • taking procedures to hinder the entrance of under - takings to the market, exclude these undertakings from the market or hinder joining existing “agree - ments” or coalitions. When determining whether any undertaking is abus - ing its dominant position in the “relevant market(s)”, the Competition Department will consider whether the undertaking is: • imposing the prices or conditions of reselling com - modities or services directly or indirectly; • selling a commodity or performing a service with a price less than the actual cost with the aim of hindering competitive undertakings from entering the “relevant markets”, excluding them from these markets or causing them losses, preventing them from continuing their activities in these markets; • discriminating without justification amongst clients with identical contracts with regard to the prices of these commodities or services or the terms and conditions of buying or selling contracts; • obliging a client not to deal with a competitive undertaking; • the total or partial rejection to deal according to the usual commercial conditions; • unjustifiably abstaining from dealing in commodi - ties or services through buying or selling or limiting or hindering the dealing that may lead to imposing an unreal price of the commodities or services; • suspending the buying or selling of commodities or services unless other commodities or services are received in return, which, by nature or commer - cial use, the latter commodities or services to be received in consideration are irrelevant to the origi - nal transaction in the normal course of its business; • intentionally publishing incorrect information about commodities or prices; • decreasing or increasing the available supply of the commodity to create a false scarcity or abundance of the commodity;
• controlling or limiting production, markets or tech - nological development; or • unjustifiably preventing or obstructing other under - takings from accessing its own networks, facilities or any physical or digital infrastructure it owns or exploits if this is the only basic and economically feasible solution for practising economic activity or entering the “relevant market”. The triggering factors to consider whether transac - tions involve the transfer of shares or assets or not through a “restrictive agreement” or an abuse of a dominant position would be: • whether the relevant undertakings meet the thresh - old identified in the Competition Threshold Rules, which is always the first step; and • if yes, determine whether the activity or transaction falls within any of these prohibitions. 2.4 Definition of “Control” “Control” is not a defined term under the UAE Com - petition Legislation. “Control” in the context of UAE merger control will only be relevant in two instances. The first instance is the percentage of “control” required by the Federal UAE or local governments over undertakings to determine whether these undertak - ings are exempt from the application of the UAE Com - petition Legislation. If the direct or indirect “control”, by the Federal or local government over an undertak - ing is 50% or more, then the undertaking is exempted from the UAE Competition Legislation. If the “control” is less than 50%, it will need to meet the Competition Threshold Rules threshold before being subject to the requirements or prohibitions in the Competition Law. The second instance is to identify the controlling undertaking in the event of “economic concentra - tion” as determined under the Competition Law. The purpose of identifying the controlling undertaking is to name it as being responsible for complying with the regulatory requirements under the UAE Competition Legislation.
687 CHAMBERS.COM
Powered by FlippingBook