MDPPACPB Regulations

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(7) Review and Reconsideration: A licensee may request a review or 
reconsideration of a dominance finding by submitting new evidence or 
changed market circumstances to the Authority. The Authority shall consider 
such request for reconsideration and issue a reasoned decision within ninety 
(90) days.  
 
39. Defences and Justifications for Conduct by Dominant Firms 
(1) Right to Defence:  
A licensee or group of licensees found to be in a dominant position may 
defend alleged anti-competitive conduct by demonstrating that: 
 
(a) The conduct did not occur as alleged; or 
 
(b) The conduct, though prima facie restrictive or exclusionary, is 
objectively justified, efficiency-enhancing, or competitively neutral. 
(2) Acceptable Justifications:  
Without limiting the generality of sub-regulation (a), the following shall be 
considered potentially valid defences, subject to strict scrutiny by the 
Authority: 
(i) Cost-based Rationalisation: The conduct reflects genuine cost efficiencies 
or economies of scale or scope, such as: 
 
 
(A) A loyalty rebate that is proportional to actual logistics or 
administrative cost savings from bulk orders; 
 
 
(B) Volume discounts that do not foreclose access to smaller rivals 
or new entrants. 
(b) Objective Business Risk: The refusal to supply a product or service is based 
on objective, verifiable grounds, such as: 
(i) Proven insolvency risk or history of default by the counterparty; 
(ii) Safety or technical incapacity of the counterparty to receive the 
product or service under applicable regulatory standards. 
(c) Pro-competitive Effects or Efficiency Gains: The conduct leads to 
demonstrable gains in production, distribution, investment, innovation, or 
service quality, and: 
 
(i) The benefits are passed on to consumers in whole or in substantial 
part; and 
 
(ii) There is no less restrictive alternative available to achieve the same 
benefits. 
(d) Legal or Regulatory Compliance: The conduct is mandated or reasonably 
undertaken to comply with legal, contractual, safety, or environmental 
obligations. 
(3) Burden of Proof: The burden of proof shall lie squarely and heavily on the 
dominant firm to: 
 
(a) Demonstrate with credible evidence that the alleged conduct did 
not occur as stated; or 
 
(b) Prove that the conduct is objectively justified and proportionate in 
light of its alleged anti-competitive effects. 
 
(4) Assessment Criteria of the Authority: 
 In evaluating a defence, the Authority shall consider: