Archived — Special provision on transitional writtenopinions on sections 45 and 90.1

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Frequently Asked Questions

On March 12, 2010, new provisions of the Competition Act (the “Act”) dealing with collaborations between competitors will come into force. Prior to this date, and consistent with the transitional provision of Bill C-10 (the Budget Implementation Act), the Competition Bureau (the “Bureau”) will offer binding written opinions with respect to existing agreements between competitors, to aid businesses in Canada seeking to ensure compliance with the amended section 45 and section 90.1 of the Act.

No fee will be charged for binding opinions with respect to existing agreements that that were entered into prior to March 11, 2009. The process of applying for a written opinion under the transitional provision of Bill C-10 will follow a similar process to that which has been established for binding written opinions under section 124.1 for proposed business conduct.

For more information, please see: Competition Bureau - All about written opinions.

Parties may request a written opinion by writing to the Commissioner of Competition:

Melanie L. Aitken
Commissioner of Competition
Competition Bureau
21st Floor, Place du Portage I
Gatineau, Quebec
K1A 0C9

For further information, please contact:

Michael Sullivan
Criminal Matters Branch
819-994-1572
michael.sullivan@canada.ca

Or

Richard Bilodeau
Civil Matters Branch
819-994-6289
richard.bilodeau@canada.ca

Frequently Asked Questions

Q1. What does the process entail?

A1. Parties are required to submit a request in writing for a written opinion and accurately describe all relevant facts upon which the request is based. As with all advisory opinions, the value of the opinion is restricted to the scope and accuracy of the information provided by the requesting parties; in other words, if this information is incomplete or inaccurate, the opinion cannot be relied upon by the parties.

A competition law officer will contact the requesting party to acknowledge receipt of the request and, if appropriate, advise that additional information is required. Bureau officers may also ask to meet with representatives of the requesting party or parties. Generally, the Bureau will not contact third parties to verify information. The opinion provided will be based on, and confined to, the Bureau’s interpretation as to the possible applicability of the new section 45 and section 90.1, with reference to the Bureau’s enforcement policies and existing case law.

Q2. What is the permissible scope of a written opinion request?

A2. Parties may request an opinion regarding whether an agreement will be reviewed under the new section 45 or section 90.1, or both. Parties may also request an opinion as to whether the agreement would provide the Commissioner with grounds to commence an inquiry under section 10 of the Act under either or both substantive provisions. In addition to written opinions, parties may also contact the Bureau to obtain informal, non-binding general advice on the new section 45 or section 90.1. The Bureau also encourages parties to consult the material available on the Web site.

Q3. How long will it take to obtain a written opinion?

A3. The Bureau’s existing policy is to provide a written opinion on complex competition matters within ten weeks of receipt of a request. Given that the opinions consider the application of new provisions and that there is an anticipated need to consult, potentially extensively, with Bureau economists and legal counsel from the Department of Justice (DOJ) and the Director of Public Prosecutions (DPP), most requests are likely to fall into the complex category. While the Bureau cannot anticipate the volume of requests it will receive, which will necessarily impact timing, the Bureau hopes to be able to respond within that same ten-week period to most, if not all, requests.

Q4. Does this provision apply to both existing and proposed agreements?

A4. No. This transitional provision providing for advisory opinions free of charge applies only to existing agreements between competitors entered into before March 11, 2009. Parties may request a binding opinion under section 124.1 for proposed agreements. Requests addressing proposed agreements are subject to applicable fees under the Department of Industry Act.

Q5. Does the transitional provision of Bill C-10 apply to other provisions of the Act?

A5. No. It applies only to the amended section 45 and section 90.1 of the Act.

Q6. Are the request and the information supplied in support of the request considered to be confidential?

A6. Yes. The Bureau will maintain the confidentiality of the identities of the requesting parties and the information supplied by the requesting parties in accordance with the Bureau’s Information Bulletin on the Communication of Confidential Information under the Competition Act.

The Bureau may wish to publish the opinion in full on its website and, in such cases, the Bureau will seek permission from the requesting parties. Where the parties do not provide such consent, the Bureau may elect to publish the opinion in a form that protects the identity of the requesting parties and maintain confidentiality over any information submitted by the parties. Positions taken by the Bureau in written opinions may be reflected in general guidance contained in other Bureau publications, such as information bulletins, technical backgrounders, enforcement guidelines and speeches.

Q7. Can the Bureau use the information received in a request for a transitional written opinion in order to commence an investigation?

A7. Yes. Consistent with the Bureau’s existing policy on written opinions, the information provided to the Bureau can be used to commence an investigation.

Q8. Can two or more parties jointly request an opinion?

A8. Yes. Moreover, entities that represent multiple parties, such as industry or trade associations, may request an opinion.

Q9. Are written opinions on the applicability of the current section 45 still valid?

A9. Yes. However, such opinions do not apply to the new section 45 and section 90.1 that come into force on March 12, 2010. Parties to an agreement for which an opinion on the existing section 45 was provided should review the agreement to ensure that it does not contravene the amended section 45 and section 90.1.

Q10. What are the implications for a party if the Commissioner is of the opinion that an existing agreement does not raise a concern under the amended section 45 or section 90.1?

A10. In these circumstances, it would be unlikely that the Bureau would take further action unless the Bureau obtains information that is inconsistent with the information supplied along with the request, or where there has been a material change in the facts. Parties should appreciate, however, that, among other things, a written opinion under section 124.1 cannot legally prevent a private party from instituting a proceeding under section 36 of the Act for the recovery of damages alleged to have been suffered as a result of conduct that contravenes the criminal provisions found in Part VI of the Act.

Q11. If a party requests a written opinion on an existing agreement and the Commissioner is of the opinion that the agreement raises potential concerns under the amended section 45, does this mean that the party is immune from criminal prosecution?

A11. No. Merely requesting a written opinion on an existing agreement is insufficient for a party to qualify for immunity. The Commissioner administers the Immunity and Leniency Programs, whereby parties involved in criminal offences under the Act can self-report and cooperate with the investigation and prosecution of other parties in return for favourable treatment. Under those programs, the Commissioner makes a recommendation to the DPP, who in turn makes an independent decision regarding whether to grant immunity or how to apply the principles of lenient treatment.

For a full discussion of the requirements of the Bureau’s immunity and leniency programs, please refer to the Bureau’s Immunity Program Bulletin and draft Bulletin on Sentencing and Leniency.

Q12. What should a party do if, after reviewing its existing agreements, it is concerned that one or more of the agreements violates the existing conspiracy provisions?

A12. In these circumstances, the party should not apply for a written opinion; rather, it should contact the Senior Deputy Commissioner of the Criminal Matters Branch to ask if either immunity from prosecution or leniency are available under the Bureau’s Immunity and Leniency programs. Failure to take such a step would expose the party not only to the risk that the Bureau will detect and investigate the matter, but also the risk of prosecution, conviction and related criminal sanctions. Further, if the illegal activities continue beyond March 11, 2010, the party could be charged under both section 45 as it reads until March 12, 2010, and under the new section 45. In addition, the anti‑competitive conduct could also be subject to review under the new section 90.1 once it comes into force.

Q13. What should a party do if the Commissioner is of the opinion that the agreement raises concerns under the new section 45 or section 90.1?

A13. In these circumstances, the Bureau recommends that the party alter or cease the agreement in question before March 11, 2010 to ensure compliance with the law and to eliminate any need for further review or investigation.

Q14. Can the Commissioner refuse to provide a written opinion?

A14. Yes. The Commissioner maintains discretion to refuse to provide a written opinion. This discretion would most likely be exercised infrequently, such as, for example, when a party provides insufficient or inaccurate information, or if providing a written opinion would interfere with an investigation. It should be noted that the Commissioner will not provide written opinions under this provision based on hypothetical fact scenarios.

Q15. Is there a deadline for written opinion requests?

A15. Yes. The deadline for written opinion requests is March 11, 2010. The Bureau recommends that parties seeking such opinions contact the Bureau well in advance of this date.

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