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Competition Policy Review (Harper Review)

For the latest news and information on the Harper Review visit my review page or the official Competition Policy Review website. The panel's draft report was released on 22 September 2014.

 

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26 February 2015 - Pfizer judgment now available

The reasons for judgment in ACCC v Pfizer Australia Pty Ltd [2015] FCA 113 have now been published on the Federal Court website and on AustLII.

26 February 2015 - Media on Pfizer case

More media on the Pfizer case this morning. See, for example, Leo Shanahan, 'Pfizer court win on Lipitor a blow for ACCC' (The Australian, 26 February 2015), Melissa Davey, 'Court dismisses case accusing Pfizer Australia of anti-competitive conduct' (The Guardian, 25 February 2015). The reasons for judgment are expected to be made public today.

26 February 2015 - ACCC releases first quarterly petrol report

The ACCC this morning released its first quarterly report into the Australian petroleum industry for 2015. The report covers the period June-December 2014, with some additional information relating to January 2015. View ACCC press release.

25 February 2015 - Federal Court dismisses Pfizer case

The Federal Court today handed down it's judgment in ACCC v Pfizer Australia. The ACCC had alleged misuse of market power and exclusive dealing in relation to Pfizer's supply of atorvastatin to pharmacies. Justice Flick dismissed the ACCC's application and awarded costs to the Pfizer. The misuse of market power case failed on the basis that the requisite proscribed purpose was not established and that (post-2012) Pfizer's market power was not 'substantial' (the controversial 'take advantage' element was established). The exclusive dealing claim failed on the basis that Pfizer did not have the purpose of substantially lessening competition.

The reasons for judgment are expected to be made public tomorrow. View ACCC press release. See also Peta Stevenson, 'ACCC Pfails in section 46 prosecution - in brief' (King & Wood Mallesons, In Competition blog, 25 February 2015) and Simon Thomsen, 'ACCC loses misuse of market power case against Pfizer over cholesterol lowering drug' (Business Insider Australia, 25 February 2015).

24 February 2015 - ACCC enforcement priorities

Clayton Utz's Kirsten Webb and Ian Reynolds have published an update on the ACCC's enforcement priorities following the release of the ACCC's Compliance and Enforcement Policy last week: 'ACCC enforcement priorities 2015: old chestnuts and new acorns' (24 February 2015)

20 February 2015 - ACCC will not oppose GSK - Novartis deal

The ACCC has today announced that it will 'not oppose GlaxoSmithKline’s and Novartis’ transactions involving over-the-counter consumer products, human vaccines and oncology products'. See press release. View merger register.

19 February 2015 - ACCC's 2015 compliance and enforcement policy

ACCC Chairman, Rod Sims, launched the 2015 edition of the ACCC Compliance and Enforcement Policy today. The following areas related to competition law and policy re listed as priorities:

  • competition and consumer issues in the health and medical sectors
  • cartel conduct impacting on government procurement
  • ensuring compliance with new or amended industry codes of conduct, including the Franchising Code and the proposed Food and Grocery Code
  • competition and consumer issues in highly concentrated sectors, including issues identified through the ACCC’s monitoring of the fuel industry

The policy notes that 'some forms of conduct that are so detrimental to consumer welfare and the competitive process that the ACCC will always regard them as a priority' including 'cartel conduct, anti-competitive agreements and practices, and the misuse of market power.' Matters falling outside these priority areas will also be given priority where they demonstrate particular factors - these factors include:

  • conduct of significant public interest or concern
  • conduct resulting in a substantial consumer (including small business) detriment
  • conduct demonstrating a blatant disregard for the law
  • conduct involving issues of national or international significance
  • conduct involving essential goods and services
  • conduct in concentrated markets which impacts on small business consumers or suppliers
  • conduct involving a significant new or emerging market issue
  • where ACCC action is likely to have a worthwhile educative or deterrent effect, and/or
  • where the person, business or industry has a history of previous contraventions of competition, consumer protection or fair trading laws.

See related speech and media release or download print version of the policy.

19 February 2015 - ACCC issues draft determination on NBN Co's LTRCM

The ACCC has today issued a draft determination on NBN Co's Long Term Revenue Constraint Methodology, concluding that NBN Co's proposal 'meets the expenditure criteria set out in the Special Access Undertaking'. Stakeholder views are due by 27 March 2015. See press release. See NBN Co - Special Access Undertaking implementation page.

19 February 2015 - Sims outlines ACCC priorities

ACCC Chairman, Rod Sims, has outlined the ACCC's priorities in his first speech of the year. Launching the 2015 edition of the ACCC Compliance and Enforcement Policy at CEDA today, Sims announced 'cartel conduct in government procurement, truth in advertising, competition and consumer issues in the health sector and industry codes as new priorities'. Sims' speech also sets out the ACCC's activities in relation to a number of areas of competition law (cartels, anti-competitive agreements and practices, MMP (noting the ACCC has 'about' 10 in depth investigations underway)) and touches on the Harper Review and Murray Report as well as key issues surrounding privatisation, communications and water. View speech. View related media release.

19 February 2015 - ACCC releases Statement of Issues on proposed Sea Swift acquisition of Toll Marine Logistics

The ACCC has released a Statement of Issues on the proposed acquisition by Sea Swift of the NT and North Qld marine freight business of Toll Marine Logistics. The ACCC has raised concerns that the proposed acquisition may SLC in the supply of marine freight services in NT and Qld; in particular, concern has been raised that 'the proposed acquisition is likely to lead to significant price increases as it will result in a monopoly on many routes'. Submissions on the SOI close on 13 March and a final decision from the ACCC is expected on 16 April. View press release. View merger register.

16 February 2015 - Beer investigation now ACCC priority

Media reports today that the ACCC's investigation into beer tap arrangements by Lion and Carlton & United has been elevated to a 'priority matter'. See Adele Ferguson, 'Beer battle 'priority' as ACCC puts heat on Lion, Carlton & United over beer tap deals' (SMH, 16 February 2015). See also Pat McGrath, 'Small brewers locked out of pubs by big corporates: Choice' (ABC News, 11 February 2015).

13 February 2015 - Jurisdictional limits of cartel laws

DLA Piper's latest Competition and Regulation update focuses on jurisdictional limits of cartel laws in Australia and NZ - see David Bamberger, Simon Uthemeyer and Alec White, 'Jurisdictional limits of cartel laws in Australia and the United States - ACCC v Air New Zealand and Motorola Mobility v AU Optronics' (DLA Piper, Competition and Regulation Update, February 2015)

12 February 2015 - Cartel Law and Enforcement

Global Legal Group Ltd, London, have published the third edition of Global Legal Insights - Cartels. Peta Stevenson, Wayne Leach and Sharon Henrick of King&Wood Mallesons contributed the chapter on Australia. The chapter can be viewed online or purchased online - you can access from the following link: Peta Stevenson, 'Cartel Law and Enforcement' (In Competition, 9 February 2015).

11 Feburary 2015 - More Harper submissions

Three more submissions on the Harper Review Draft Report were published on 6 February:

  • Department of Communications (acknowledges draft reports's recognition of new technologies and applications 'digitally disrupting' the way markets operate, but suggests final report 'would benefit from a stronger focus on the impact of digital disruption and new technologies in offering the potential to identify new competitive opportunities for industries across the economy, and opening up many existing markets to greater competition'. The Department's 10-page submission goes on to make 'observations in relation to digital disruption and enablement' in relation to several of the draft recommendations - includes reference to Vertigan panel recommendations).
  • Prof H Ergas and Prof J Pincus (addresses recommendations relating to pharmacy recommendations)
  • Northern Territory Government (runs through each of the draft policy recommendations (most supported in principle - some with reservations), supports measures to 'streamline and simplify' competition laws but 'reserves its position on the application of competition law to government activities' until it can fully assess implications on the Territory, runs through institutions and governance recommendations (establishment of ACCP and its proposed roles is supported in principle; recommends ACCP have mandatory information-gathering powers for purpose of undertaking market studies; generally supports other recommendations on institution and governance, but requires more information before view can be formed 'as to whether access and pricing functions should be undertaken by a single regulator'), discusses retail markets recommendations (supports removal of restrictions on retail trading hours and removal of pharmacy ownership and location rules).

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Competition Policy Review (Harper)

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Images copyright: Images in the Hot Topic section (left column): male runner on starting blocks courtesy of stockimages at FreeDigitalPhotos.net; gas pump filling nozzles courtesy of Rawich at FreeDigitalPhotos.net and price magnifier definition means promotions and savings courtesy of Stuart Miles at FreeDigitalPhotos.net.(right column): power transmission tower courtesy of Rawich at FreeDigitalPhotos.net; business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; Trade Practices Act cover (copyright free; my photo).