Unilateral Conduct Working Group Questionnaire Response by Tadmor & Co. (Israel)

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1 Unilateral Conduct Working Group Questionnaire Response by Tadmor & Co. (Israel) Monopolist Unilateral Conduct Rules Brief Overview Before we turn to the specific issues raised in the questionnaire it would be useful to briefly survey the legal framework established by the Israeli Restrictive Trade Practices Act (The Antitrust Law) with regard to monopolies. Generally, the Antitrust Law does not prohibit the mere existence of a monopoly but rather determines a set of restricted conducts that monopolists are prohibited from engaging in and provides the Antitrust authorities with expanded tools and powers in order to better supervise, restrict and regulate monopolistic behavior when the existence of a monopoly or the monopolistic behavior might reduce competition or otherwise injure the public. The Antitrust Law sets up a clear definition to the term monopoly. Section 26(a) determines that "the concentration of more than half of the total supply or acquisition of an asset, or more than half of the total provision or acquisition of a service, in the hands of one person shall be deemed to be a Monopoly." The Antitrust Commissioner may issue a formal determination that a person is a monopolist, however this determination is declaratory and not constitutive in nature, i.e. it is not a pre-requisite for the application of the provisions regarding monopolies; these would apply to any person falling within the general definition of a "monopoly" regardless of whether such formal determination was made. A monopolist is bound by certain conduct restrictions. These include prohibitions on unreasonable refusal to provide or purchase assets or services over which a monopoly exists and on abuse of monopoly position in the market in a manner which might lessen competition or otherwise injure the public. In addition to the general prohibition the Antitrust Law defines particular unilateral forms of conduct that shall be conclusively presumed as abuse of monopoly position in the market, among which are tying (under certain conditions) and price discrimination (under certain conditions). Violation of the prohibitions might lead to criminal, administrative or civil liability. The antitrust authorities are expanded powers with respect to monopolies. Thus, if there are grounds to believe that either the existence or the behavior of a monopolist harms or may harm competition or the public, the Antitrust Commissioner may give such monopolist instructions as to the necessary steps to be taken in order to prevent such harm. If the harm caused is substantial under certain conditions, separation of the monopolist into distinct business entities may be ordered (although this provision of the Antitrust Law has never been used by the Antitrust Court). We now turn to the specific issues raised in the questionnaire. The numbered items below correspond to the numbers set forth in the questionnaire. 1

2 A. Objectives of unilateral conduct laws 1. Both the statutory language of the Antitrust Law and our case law provide us with some guidance as to the objectives of the unilateral conduct rules, i.e. rules concerning prohibition of abuse of monopoly position. The Antitrust Law section 29A of the Antitrust Law, entitled "Abuse of Position" establishes that "A Monopolist shall not abuse its position in the market in a manner which might reduce business competition or injure the public". Other sections dealing with the regulation of monopolistic behavior condition imposing any restrictions on a monopolist upon the actual or potential harm to competition or the public (e.g., Sections 30, 31). It is clear from the statutory language that protecting competition and the competitive process is obviously a central objective of the unilateral conduct rules. Indeed, the statutory language on its face - leaves room for other underlying objectives, since the prohibition applies also to any abuse of position that "injures the public," arguably in a way other than harm to competition. However, there are reasonable grounds to think that the main objective of the prohibition is the protection of competition. It is worth noting in this regard that Section 30 determines that harms concerning specific enumerated matters shall be deemed harmful to competition or injurious to the public. These matters include injuries relating to the price, quality or quantity of assets and services and injuries to fair competition. Since all these are typically harmed as a result of lessening of competition, there is a good reason to assume that the major objective underlying the unilateral conduct rules is the protection of competition and the competitive process. The explanatory text that accompanied the legislative amendment in which the prohibitions of abuse of position were added to the Antitrust Law points also in the same direction. The text emphasizes that restraining monopoly power is in the public interest and that it is the elimination of competition which is the result of a monopoly's existence that mandates tight regulation of its activities. The case law The Antitrust Court has generally mentioned, in various instances, that the protected interest of the Antitrust Law is competition, protecting the public from the market failures which are the result of undue concentration, and the promotion of efficiency and efficient allocation of resources. As to the statutory provisions concerning monopolies the Antitrust Court had pointed out the goals of are to deal with the potential threats posed by monopoly to competition and therefore to the public, among these threats the court mentioned the threats aimed to make profits at the expense of consumers, at the expense of other links in the production chain and threats aimed to exclude other actual or potential competitors 1. It seems that the rhetoric used by the court put the preservation of competition as the central goal of this provision. 2. Non-competition considerations or influences are generally not incorporated into the objectives of the unilateral conduct rules. 1 Appeal 7/95, BeZeK v. The Antitrust Commissioner, TM 97(2), 5. 2

3 In contrast, it is interesting to note that according to the licensing regime established by the Antitrust Law with respect to Restrictive Arrangements (coordinated conduct), the Antitrust Court may take into account a broad range of considerations and may approve a restrictive arrangement if it "benefits the common good." Under Section 10 of the law the Antitrust Court must strike the balance between the cost of restriction of competition and the public benefits gained by the arrangement. The benefits can extend to areas that are entirely unrelated to competition, such as employment levels, the protection of local production and the improvement in the state's balance of payments. Nevertheless, although under Section 10 the Antitrust Court may include in its review of an arrangement industrial policy considerations and other non-competition related interests, the Antitrust Court resolved years ago that it would apply primarily competition considerations when reviewing applications to approve restrictive arrangements and has, in fact, applied only competition analysis in its decisions notwithstanding the broad authority granted thereto under Section 10 of the Antitrust Law. Given that even in antitrust matters where non-competition considerations and industrial policy were explicitly allowed the Antitrust Court was reluctant to take them into account, it is reasonable to assume that court would not be enthusiastic to apply such considerations when dealing with the unilateral conduct rules. 3. See Q.1 above. 4. In order to understand the balance of the risks associated with over deterrence with those associated with under deterrence it is useful to review in greater depth the statutory framework. As for the core prohibitions of abuse of monopoly position the Antitrust Law defines particular unilateral forms of conduct that shall be conclusively presumed as abusing monopoly position in the market. This conclusive presumption apply, inter alia, to the setting of unfair price levels 2 ; the reduction or increase of quantities not within the context of fair competition activity; and discrimination in contractual conditions that may provide unfair competitive advantage. These particular unilateral conducts are conclusively presumed to be reducing competition and injuring the public and therefore prohibited per se without any further inquiry into their actual effect under the certain circumstances. The use of conclusive presumptions might be seemed as a legislative preference to intervene with monopolistic conduct and to prefer the risk involved with over deterrence. However, it seems that that risk is significantly mitigated by the way the specific conducts which give rise to the conclusive presumption are phrased. Since each of these conducts includes open-end terms such as "unfair" (prices/advantages) or "accepted trading practices" it still leaves monopolies enough room to engage in competitive practices and to argue they do not fall within the per se prohibition. By and large, it appears that the technique used by the legislature of formulating conclusive presumption on the one hand but using vague terms within these 2 The question whether these include only predatory low prices or also excessive pricing is still unresolved under the Israeli Law, ATF (Antitrust File) [Jerusalem] 2/96 - The Anti Trust Commissioner v. YEDI'OT A'HA'RONOT, TM 99(3), Michal S. Gal, Monopoly pricing as an antitrust offense in the U.S. and the EC: Two systems of belief about monopoly? (forthcoming, The Antitrust Bulletin, summer 2004). To be found at 3

4 presumptions on the other, leave the courts with the task of interpretation and of balancing the associated risks. So far, too few monopoly cases were brought before the Antitrust Court hence the balance it would strike remains at this time unknown. It should also be noted in this regard that according to the Antitrust Law the Antitrust Commissioner and the Antitrust Court may give a monopolist instructions as to the necessary steps to be taken in order to prevent harm to competition or to the public. Indeed, in some cases such instructions were given to specific monopolists. The instructions defined specific behaviors that the monopolist should not engage in given the market conditions and common trade practices in the specific market. The ability to tailor such specific instructions to a monopolist might be also viewed as a way to balance the risks associated with over deterrence with those associated with under deterrence. In practice instructions are commonly agreed upon by the monopolist and the Antitrust Commissioner and brought before the court for its approval. 5. Generally, there are no exemptions or exceptions whether for regulated sectors or for government entities - to the unilateral conduct rules. Moreover, the Antitrust Court has rejected arguments made by the Israeli telecom monopoly and by a firm whose monopoly was based on patent rights, that they were exempted from the Antitrust Law. The Court had determined that even when the monopoly is the result of a statutory arrangement or of property right rising from the Patent Law, it is still subject to the Antitrust Law and to the unilateral conduct rules since the threats posed by monopoly are present in these situations just as well 3. It has similarly ruled that government ownership does not in itself serve as a basis for exemption from antitrust rules. The question of direct government units being subject to the monopoly provisions of the Antitrust Law has not yet been ruled upon by the court and is technically still open. It should also be noted that while some industry-exemptions do exist with regard to the prohibitions concerning restrictive arrangements (i.e., coordinated conduct), such as the agriculture sector exemption or the international aviation exemption 4 there are no such industry-exemption with regard to the unilateral conduct rules. This should probably be attributed to the earlier enactment of the coordinated conduct provisions, and to fact that the later-enacted monopoly abuse provisions are for the most part a literal translation of Article 82 of the Treaty of Rome. 6. N/A See Q.5 above. 7. There were no major changes in the unilateral conduct rules, their objectives, or the exemptions or exceptions to these rules in recent years. The only change to the unilateral conduct rules made in the last few years was the expansion of the prohibition on unreasonable refusal to deal so it would apply also to unreasonable refusal to purchase by 3 Appeal 7/95, BeZeK v. The Anti Trust Commissioner, TM 97(2), 5; ATF (Antitrust File) [Jerusalem] 3/97 MaGaL Maarachot Bitachon [ MaGaL security systems] v. The Anti Trust Commissioner, TM 2001(3), See, for example, sections 3(4) and 3(7) of the Antitrust Law. 4

5 monopsony and not just to unreasonable refusal to provide by monopoly. This somewhat controversial amendment to the Antitrust Law has never been used nor has it been interpreted by the court. 8. Generally, there are no institutional features that affect the Antitrust Commissioner's ability to enforce unilateral conduct rules or to achieve it objectives. The Antitrust Commissioner does not have to consult with any governmental agency or ministry prior to making any decision concerning monopolistic or abusive conduct. Even when applying to the Antitrust Court to order the separation of monopoly in light of substantial harm to the public it only has a duty to file a copy of its application with the relevant governmental ministry. It should be mentioned that the Antitrust Commissioner's decision to declare the existence of a monopoly is subject to appeal to the Antitrust Court. Moreover, the Antitrust Commissioner's decision to give specific instructions to monopolist would not come into force if not consented to by the monopolist until a decision is made by the Antitrust Court. However, these powers of the Antitrust Court should be viewed in the right context as an appellate authority of a professional competition court and not as overruling powers of another governmental agency or ministry. 9. The Israeli experience with the application of unilateral conduct rules is not as expansive as one might expect. In fact, over the years only a few actions were taken by the antirust authorities on grounds of violation of the unilateral conduct rules, of which some have been resolved in consent decrees and hardly any reached the court. One possible reason is that even though violation of the rules prohibiting abuse of position give rise to criminal liability, such liability would only be established if the prosecution proves specific intent to lessen competition or injure the public. The difficulty to prove such intent may explain why there are hardly any such criminal actions against monopolists. However, this would not explain the lack of other actions administrative or civil ones. This may be attributed to the inherent difficulty of distinguishing monopolist's aggressive but competitive behavior from monopolistic abusive behavior; it may also be the outcome of what is probably the "natural path of development" for a competition regime: preventing the abuse of monopoly power usually comes last, preceded by activity in the areas of cartels and mergers. B. Assessment of Dominance/Substantial Market Power 1. The definition of a monopoly is set forth in Section 26(a) of the Antitrust Law, as follows: "For the purposes of this Law, the concentration of more than half of the total supply or acquisition of an asset, or more than half of the total provision or acquisition of a service, in the hands of one person (hereinafter - Monopolist) shall be deemed to be a Monopoly". [Emphasis added]. 5

6 As mentioned above - the Antitrust Commissioner may issue a formal determination that a person is a monopolist, however this determination is declaratory and not constitutive in nature, i.e., it is not a pre-requisite for the application of the provisions regarding monopolies, which would apply to any person falling within the general definition of a "monopoly" whether or not such formal determination was made. According to the Antitrust Law, under certain conditions the Minister of Industry and Trade may determine that, "with respect to certain assets or to certain services, a concentration lower than one half shall be deemed to be a Monopoly". We are not aware of any such determination to have ever been made by the minister. Market Power - the Antitrust Court has ruled in several cases that for the purpose of determining that a person is a monopolist it is not necessary that it would posses market power. Market Power is not a requisite element of the monopoly definition and market share of more than 50% would render one a monopolist even in the absence of market power 5 (which is present where a person has the ability to restrict output and raise prices). Nevertheless, although market power is not a necessary element for the classification of person as a monopolist, the Antitrust Court has determined that the existence of market power might still be a relevant and important factor when the Antitrust Commissioner or the Antitrust Court consider whether either the existence or the behavior of a monopolist harm or may harm competition or the public and whether it is necessary to give such monopolist instructions as to the necessary steps to be taken in order to prevent the harm. Note that while market power is excluded from the definition of a monopoly, it may play a role in determining the proper boundaries of a specific market. Finally, it should be noted that there are no sub-categories for different levels of dominance or market power such as "super dominance," etc. 2. Generally, under Israeli law the mere existence of a monopoly is not forbidden. When a monopoly position is present the unilateral conduct rules apply and intervention against potential abusive unilateral conduct is possible (as explained above sometimes even without the presence of market power). By and large, the acquisition or creation of a monopoly or dominant position or substantial market power does not, in itself, allow intervention of the antitrust authorities, unless done by way of a merger, in which case it is subject for notification to and approval of the Antitrust Commissioner. 3. As already mentioned above, the law uses a 50% market threshold above which singlefirm monopoly position is conclusively presumed. This presumption is regardless of the existence of market power and it is not rebuttable. The legal basis for the presumption is the Antitrust Law as interpreted by the Antitrust Court. 5 ATF (Anti Trust File) [Jerusalem] 2/96 - The Antitrust Commissioner v. YEDI'OT A'HA'RONOT, TM 2000(2), 9044; Appeal 7/95, BeZeK v. The Antitrust Commissioner, TM 97(2), 5; ATF (Antitrust File) [Jerusalem] 3/97 MaGaL Maarachot Bitachon [ MaGaL security systems] v. The Antitrust Commissioner, TM 2001(3),

7 4. The unilateral conduct rules are part of the Monopoly chapter of the Antitrust Law and they apply only to monopolies. Therefore the only way to intervene against unilateral conduct at a level below the one usually set to monopolies (the above 50% market share threshold) is if the Minister of Industry and Trade has determined a lower level in a specific case. 5. Regularly, both the analysis of monopoly position and the analysis of market power require that a relevant product and geographic market be defined. 6. As mentioned above, under the Israeli law the only relevant criteria to determine the existence of monopoly position is market share. However, for the assessment of market power (where relevant) all the criteria and factors listed in the question usually are taken into account; it may also play a role in defining the market of which the monopoly may or may not hold a 50% or more share It is difficult to single out the one most important criterion used to assess single firm market power or the weight given to each factor, as this might vary according to the unique circumstances of each and every case. However, in general, the firm's and its competitors' market share would be an important starting point of the analysis, and entry analysis would be given an important weight. 9. The existence of intellectual property rights would be taken into consideration, e.g., as part of the market definition and of the entry analysis when evaluating market power. Even though in some cases intellectual property rights are the basis for significant market share and of monopoly position and market power, there is no general-legal presumption according to which intellectual property rights are presumed to create market power. On the other hand, the Antitrust Court has pointed out, in one case, that the term monopoly has different meanings according to the Antitrust Law and the Patent Law and that the fact that the monopolistic position was based on patent rights does not provide an exemption from the Antitrust Laws; that your monopoly was duly granted by the patent law does not give you, the monopolist, a right to abuse the power derived from your legal monopoly status. 10. N/A 11. N/A C. State-created Monopolies I. State-created Monopolies In general traditionally state created monopolies existed in various sectors of the Israeli market, including security, electricity, water, air-transportation, sea ports, telecommunications, agriculture etc. 7

8 Application of Competition law generally there is no special exemption for statecreated monopolies and the prohibitions of the Antitrust Law apply to these monopolies just as well. In Fact, as was already mentioned above, the Antitrust Court has rejected arguments made by the Israeli telecom monopoly that it was exempted from the Antitrust Laws and from the unilateral conduct rules. The Court had determined that even when the monopoly is the result of a statutory arrangement or is owned by the government it is still subject to the Antitrust Law and to the unilateral conduct rules, since the threats posed by monopolies in general are also present in these situations. Along the same line, the assessment of market power or of monopoly position of state-created monopolies is in no way different from other monopoly cases. However, this is true when the monopoly is organized as a limited liability corporation owned in whole or in part by the government; it is an open question whether monopolies that are part of the legal entity of the government, or that have been formed by specific designated laws (such as the airport authority), are subject in full to the monopoly provisions of the antitrust court. Privatization Examples the last several years have witnessed an active privatization and liberalization process in a wide variety of sectors in the Israeli market. For example the state has sold most of its shares in ELAL, the Israeli largest Air carrier in 2005 (not before it secured certain vital state interests (such as security matters) by way of a special state-owned share); the state sold in various transactions and offerings most of its holdings in Bezek, the Israeli corporation for telecommunication, by the end of 2005; the state had divested BAZAN - the Oil Refineries state-owned monopoly into two independent competing refineries, sold the first oil refinery - Oil Refinery Ashdod Ltd into private hands in 2006 and plans to sell the other oil refinery Oil Refinery Haifa Ltd. in the near future; the state has reorganized the Sea-Ports Authority into 4 independent governmental companies that would be able to compete with one another. II. Privatization and Liberalization Process and the Advocacy Role of Competition Agencies 5. Legal Framework Israeli Law has established a designated legal framework for privatization. In 1993 the Government Companies Act was amended and a special privatization chapter was incorporated into the Act, defining detailed processes and procedures for privatizing government companies. 6. Objectives the explanatory text accompanying the above mentioned amendment stated that the government views privatization of government companies as a vital element in the enhancement of the national market, its efficiency and growth. Promoting competition is certainly one of the goals, but one cannot ignore another central objective which is the maximization of the sale's revenues. 7. Competition Law competition law is applicable to privatization transactions. They are subject to the merger notification and approval requirement by the Antitrust Commissioner, and therefore subject to a competitive analysis. 8. Antitrust Authority's Role the Antitrust Commissioner usually takes a very active role in the process of privatization and liberalization of state-owned monopolies and its 8

9 involvement is apparent throughout the whole process. The breakup of the Oil Refineries state-owned monopoly into two independent refineries and their privatization is an illustrative example. The Commissioner was highly involved in the process long before privatization took place. He set the conditions upon which the players in the domestic fuel market would be allowed to bid for and purchase each one of the separated oil refineries, was involved during the process and adjusted these conditions, and finally when the first oil refinery was privatized and purchased by Paz Oil Company the merger was closely reviewed by the Commissioner and was approved subject to extensive conditions set by the Commissioner. D. General 1. Developing 2. Following are the major relevant Antitrust Law sections dealing with monopolies: Chapter IV: Monopoly 26. Monopoly and Monopolist (a) For the purposes of this Law, the concentration of more than half of the total supply or acquisition of an asset, or more than half of the total provision or acquisition of a service, in the hands of one person (hereinafter - Monopolist) shall be deemed to be a Monopoly. The General Director shall declare the existence of a Monopoly by notice in the Official Gazette; the provisions of Section 34(b) to (e) shall apply to such declaration, as if it were a determination in accordance with Section 43(a). (b) A Monopoly can be specific to a particular region. (c) The Minister may, pursuant to the General Director s recommendation, determine that, with respect to certain assets or to certain services, a concentration lower than one half shall be deemed to be a Monopoly, if he believes that a person holding such concentration has a decisive impact on the market relevant to such assets or services. (d) In the case that the concentration provided in subsection (a) or determined in accordance with subsection (c) is held by two or more persons, who are not in competition or are only in slight competition (hereinafter: Oligopoly), the concentration shall be deemed to be a Monopoly and the Oligopoly shall be deemed to be a Monopolist, if the General Director so determines in accordance with Section 43(a)(4). (e) Once every six months, the General Director shall give the Knesset Economic Committee a list of all Monopolists. (f) For the purposes of this Section person - Including a company and its subsidiaries, or the subsidiaries of one company, or a person and a company in which he holds a controlling interest. 27. Restrictions Applicable to a Monopolist (a) The Director may- 9

10 (1) Stipulate in writing that a Monopolist contracting or intending to contract with customers or suppliers by means of a standard terms contract, within the meaning of the term under the Standard Terms Contracts Law, , shall submit an application for approval of the contract in accordance with Chapter III of the said Law; in the case that the Monopolist does not file such application within the period stipulated, he shall be precluded from contracting with his customers or suppliers by means of such standard terms contract; (2) Stipulate that a Monopolist manufacturing or importing an asset, or providing a service, the specifications of which are established by a Standard in accordance with the Standards Law, , shall not manufacture, import or sell the asset nor provide the service unless it conforms to the requirements of the Standard. 28. Appeal Against Restriction of a Monopoly A Monopolist may appeal to the Tribunal against a stipulation of the General Director in accordance with section 27, within thirty days of receipt of such stipulation; the filing of an appeal shall not cause the implementation of the General Director s stipulation to be delayed, unless the Tribunal otherwise determines. 29. Unreasonable Refusal A Monopolist may not unreasonably refuse to provide or purchase an asset or a service over which a Monopoly exists. 29A. Abuse of Position (a) A Monopolist shall not abuse its position in the market in a manner which might reduce business competition or injure the public. (b) A Monopolist shall be deemed to be abusing its position in the market in a manner which might reduce business competition or injure the public, in each of the following instances: (1) Determination of an unfair buying or selling price of an asset or a service over which a Monopoly exists; (2) Reduction or increase in the quantity of the assets or the scope of the services offered by the Monopolist, not within the context of fair competitive activity; (3) Establishment of different contractual conditions for similar transactions in a manner which is liable to accord certain customers or suppliers with an unfair advantage vis-א-vis their competitors; (4) Stipulation of a contract regarding an asset or an service over which a Monopoly exists with conditions that, by their nature or according to accepted trading practices, are unrelated to the subject matter of the contract. The provisions of this subsection are supplementary to the provisions of sub-section (a). 10

11 30. Regulation of Monopolistic Activities (a) In the case that the General Director believes that business competition or the public is being prejudiced as a result of the existence of a Monopoly or the behavior of a Monopolist, he may give the Monopolist instructions regarding the measures to be taken by the Monopolist in order to prevent such prejudice. (b) In the case that the General Director believes that a risk of substantial prejudice to business competition or to the public exists as a result of the behavior of a Monopolist, he may give the Monopolist instructions regarding the measures to be taken by the Monopolist in order to prevent such prejudice. (c) Any prejudice relating to one of the following shall be deemed to be a prejudice to business competition or to the public: (1) The price of an asset or a service; (2) The quality of an asset or a service; (3) The quantity of the assets or the scope of the service; (4) The supply of the asset or the service, and the constancy and conditions of such supply; (5) Fair business competition; The provisions of this subsection are supplementary to the provisions of subsections (a) and (b). (d) The General Director shall publish his intention to give instructions in accordance with this section in two daily newspapers, at least 14 days in advance, and shall make such instructions available to public scrutiny. (e) The General Director shall deliver the instructions to the Monopolist and shall publish the fact of their delivery in two daily newspapers; the instructions given shall be included in the Register of Monopolies in accordance with section 42; in the case that the General Director believes that the public interest requires the publication of the text of the instructions, he shall so publish them in newspapers as aforesaid. (f) The Monopolist to whom the General Director s instructions are delivered, any Consumers Association and any other person injured by such instructions, may file a written objection to the General Director s instructions with the Tribunal, detailing the grounds for such objection, within 30 days of the date of publication of the fact of delivery of such instructions in accordance with sub-section (e); after hearing the parties, the Tribunal may reaffirm, revoke or amend the General Director s instructions. (g) The General Director s instructions shall enter into force 30 days following the date of publication as provided by sub-section (e); in the case that a Monopolist files an objection to the instructions, they shall be suspended pending the decision, or any other date provided by the Tribunal. (h) The provisions of this section are supplementary to the provisions of section Separation of a Monopoly (a) In the case that the Tribunal considers, following the application of 11

12 the General Director, that the public is substantially prejudiced, whether in a manner provided by Section 30 or in any other way, as the result of the existence of a Monopoly, and that such prejudice cannot efficiently be avoided by regulating the activities of the Monopoly in accordance with Section 30, but may only be achieved by separating the Monopoly into two or more distinct business entities, it may order the separation of the Monopoly. (b) The separation of a Monopoly shall take place by means of transferring some of the shares to an unrelated body, of the Monopolist s choosing, or by means of the establishment of another company to which some of the assets of the Monopoly would be transferred, or by any other means as the Tribunal sees fit. (c) In the case that the sphere of activity of the Monopolist comes under the jurisdiction of one of the government ministries, the General Director shall forward a copy of his application to the director-general of such ministry. 12

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