OMAN LAW AND PRACTICE Contributed by: Said Al-Shahry, Thamer Al-Shahry, Jeremy Pooley, Maria Mariam Rabeaa Petrou, Shadha Al Kharusi and Salim Al Harthi, Said Al Shahry & Partners (SASLO )
6.4 Abuse of Dominant Position The abuse of a dominant position is prohibited under the Competition Law. Any person who enjoys a dominant position is prohibited from carrying out any practice likely to prejudice, restrict or prevent competition. The Competition Law also contains a non-exhaustive list of prac - tices that would be caught by this prohibition on abusing a dominant position. The Competition Law defines a dominant posi - tion as the ability of a person or a group of persons who directly or indirectly work jointly to control or influence the market concerned, including the acquisition of more than a 35% share of that market. The “market concerned” is also defined in the Competition Law, and has two key elements: relevant product and the geo - graphical scope. Identifying and applying the scope of the ”market concerned” to the activ - ity/practice in question is key to determining whether a dominant position has arisen. Agreements and arrangements (whether con - cluded inside or outside Oman) that aim to secure the monopoly of the import, production, distribution, sale or purchase of any goods or circulation thereof are also prohibited, as is per - forming any monopolistic act that would affect the market. For these purposes, a “monopoly” is defined in the Competition Law as the control by a person or a group of persons directly or indirectly of the quantity and prices of a kind of goods or service in a manner that would result in a restriction or cause an adverse effect on the freedom of competition. The Executive Regulations In January 2021, the executive regulations of the Competition Law were issued pursuant to MOCIIP Ministerial Decision No 18/2021 (the “Regulations”). The Regulations aim to remove
uncertainty and provide clear guidance in deter - mining whether or not an arrangement would fall within the scope of the Competition Law. In doing so, the Regulations provide further guidance on the meaning of dominance, rel - evant products and geographical scope. They should therefore be consulted when assessing whether or not an arrangement would fall within the scope of the Competition Law (ie, whether or not an arrangement would be considered a pro - hibited practice or whether a transaction would require MOCIIP pre-approval). The Regulations also set out clear guidance as to when market dominance could be triggered, as follows: • where a person or persons acquire shares exceeding 35% of the relevant market; and • where a person is able to influence product prices, or the volume of the supply of prod - ucts, even if that person’s share is less than 35% of the relevant market. The Regulations set out the process to apply for MOCIIP approval for an economic concentra - tion and provide that the application must be accompanied by several documents, including information determining the nature and structure of the economic concentration. Justification for the economic concentration, copies of reports, studies and questionnaires prepared for the pur - pose of assessing the economic concentration must also be provided. It is important to note that the Regulations provide that all documents submitted as part of the economic concentra - tion application must be in Arabic; if they are in a foreign language, an attested and certified Arabic translation must be attached.
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