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Evaluating the influence of EU competition rules and Islamic principles on the treatment of abuse of dominance under Egyptian competition law

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posted on 2023-06-07, 16:20 authored by Mourad Greiss
Egypt faced three central pressures to introduce its own competition law in 2005: first, EU/Egypt trade relations, second, introduction of the 1991 privatisation programme and third, its long-term desire by virtue of its Constitution to follow Islamic principles that condemn monopoly. However, Egypt was not forced to transplant EU rules as a result of EU/Egypt trade relations, although it is implicit that the EU deems it desirable to do so. By employing the functional method of comparative law for the purposes of the study on EU, Islamic, and Egyptian laws, the central argument of this thesis is that the Egyptian treatment of abuse of dominance is distinctive in three ways. First, Egyptian rules do not prohibit the practice of excessive pricing. Although in jurisdictions that prohibit it, most notably the EU system, competition authorities do not contemplate it as an investigation priority, it is argued that the lack of its prohibition raises Islamic law concerns and may lead to potential effects on the Egyptian economy. However, the difficulties which investigators face in settling such practice (as the South African Mittal case demonstrates) suggest that the Egyptian legislator may have adopted the right approach not to prohibit it; otherwise, this may have increased the likelihood of committing type II errors and, as a result, violate Islamic law principles of injustice. Second, in contrast with EU law, Egyptian rules do not cover the practice of below-cost margin squeeze. Although it is argued that its omission does not pose potential effects to the economy, it is suggested that it raises Islamic law concerns on the basis of fairness and intentions principles. Given that it is relatively easier to investigate, compared to excessive pricing, it is suggested that the Egyptian legislator should re-consider encompassing it in the future while drawing on the approach adopted in EU law. Third, the Egyptian Competition Law reflects the EU Commission‘s initiative of employing an effects-based approach to abuse of dominance. However, the Egyptian system, arguably influenced by the Islamic principles on market intervention, goes a little further to require an actual effects standard. Despite an effects-based analysis being difficult to employ in emerging economies with inadequate economic expertise like Egypt, it is argued in its favour for two reasons. First, it increases the chances of avoiding type II errors, which, similar to excessive pricing and margin squeeze, violate Islamic law and; second, the Egyptian Competition Authority‘s analysis in the Steel study shows that it is capable of employing this approach at this stage. For the purposes of re-considering the foregoing (gaps) in the future, the Egyptian Competition Authority should focus on increasing economic expertise and seek technical assistance from competition authorities of the developed world.


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