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27 July 2017 - Lawyers Weekly: report predicts ACCC will 'up the ante' against cartels

Lawyers weekly has an item discussing Allen & Overy's Global Cartel Enforcement report which predicts the ACCC will be more active in cartel enforcement in the second half of 2017. See Tom Lodewyke, 'ACCC to ‘up the ante’ against cartels: report' (Lawyers Weekly, 27 July 2017).

See also Allen & Overy Global Cartel Enforcement 2017 Mid-Year report. The report notes that in the past six months the ACCC has issued only one cartel fine, but that increased activity is expected in the second half of 2017 as the ACCC awaits judgments and penalty outcomes in a number of proceedings (including the Flight Centre case).

27 July 2017 - Sims on electricity affordability

The ACCC Chairman, Rod Sims, delivered the welcome address at the ACCC & AER Regulatory conference, focusing on electricity affordability. See speech. See also opinion piece in the Courier Mail: Rod Sims, 'Opinion: It's time to get real on electricity prices' (The Courier-Mail, 27 July 2017).

See also John Durie, 'Rod Sims and ACCC takes on power affordability' (The Australian, 27 July 2017) and Ben Potter, 'ACCC's Rod Sims wants cheaper energy, more competition' (AFR, 26 July 2017).

Electricity image25 July 2017 - ACCC to hold first public hearing into power prices

The ACCC will hold its first public hearing into power prices in Brisbane today as part of its inquiry into national electricity prices, ordered by the Treasurer in March. Several other forums are scheduled over the coming months. The ACCC has also released an overview of the submissions made in response to the issues paper.

See, eg, Cameron Atfield, 'ACCC to hold first public hearing into power prices in Brisbane on Tuesday' (SMH, 23 July 2017).

21 July 2017 - ACCC withdraws injunction application in Tabcorp/Tatts case

The ACCC has withdrawn its application for an injunction to prevent the Tabcorp/Tatts deal proceeding while its application for judicial review is considered. The injunction application was due to be considered by the Federal Court next Thursday. See Sarah-Jane Tasker, 'ACCC withdraws injunction to stop Tabcorp completing Tatts takeover' (The Australian, 21 July 2017).

21 July 2017 - Sims: Open markets must benefit consumers or distrust will grow

ACCC Chairman, Rod Sims, addressed the 2017 Australian Conference of Economists in Sydney today. In his speech he referenced increasing public disillusionment with the market economy and disappointment that the economics profession had not 'been more influential in public policy debates in recent time'. He observed that economists 'who ground their contributions in the facts of everyday life and relax the often abstract assumptions of theory will find an audience more willing to listen'.

See media release. View speech ('Ceteris Paribus, Competition is King' (2017 Annual Conference of Economists, 21 July 2017)).

20 July 2017 - Sims on telco competition

ACCC Chairman, Rod Sims, addressed the Communications Day Unwired Revolution Conference in Sydney today. He claimed there were 'encouraging signs that competition in the sector was healthy' and welcomed the entrance of new participants. See media release. View speech.

13 July 2017 - ACCC releases findings of beer tap investigation

The ACCC has released its findings into an investigation of the contracts of CUB and Lion, following allegations from some craft brewers that they were being locked out of beer taps in certain venues as a result of exclusivity provisions and volume requirements.

The ACCC concluded that the contracts were unlikely to result in a substantial lessening of competition in the markets investigated. However, it notes that it will continue to monitor developments in the market.

See ACCC media release.

12 July 2017 - CrownBet applies for Judicial Review of Tabcorp Ruling

CrownBet, one of the interveners Tabcorp's application for merger authorisation, has filed for judicial review of the Tribunal's decision. This follow's the ACCC's application for judicial review on Monday. See Sarah-Jane Tasker, 'CrownBet joins battle against Tabcorp-Tatts merger' (The Australian, 13 July 2017)

The Federal Court has scheduled a case management hearing for both applications for 9:30am Friday.

10 July 2017 - ACCC appeals Tribunal's Tabcorp ruling

The ACCC has applied to the Federal Court for a judicial review of the Australian Competition Tribunal’s recent Tabcorp/Tatts merger authorisation decision. An appeal on the merits is not available for Tribunal merger authorisation decisions, but the ACCC is seeking judicial review, alleging three reviewable errors, including that the Tribunal erred in its reasoning that 'it could only conclude that the proposed acquisition was likely to result in a detriment if the Tribunal concluded that there would be a substantial lessening of competition’.  

See ACCC Media Release, 10 July 2017. See also my blog piece for further details and links to news and commentary.

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22 June 2017 - Tribunal publishes judgment in Tabcorp

The Australian Competition Tribunal has published its reasons for decision in the Tabcorp merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1). The reasons run to 255 pages. The ACCC has also provided an initial response indicating that it 'will now consider the reasons for decision published by the Tribunal.' See my case page for further details links to commentary.

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21 June 2017 - Tribunal authorises Tabcorp's proposed acquisition of Tatts Group Ltd

The Australian Competition Tribunal Tribunal has authorised the proposed acquisition of Tatts Group ltd by Tabcorp; reasons for this decision are expected to be published on Thursday. Tabcorp has issues a press release welcoming the decision. See also John Durie, 'Tabcorp’s high-risk strategy pays off as tribunal approves Tatts merger' (The Australian, 20 June 2017) and John Stensholt, 'Tabcorp-Tatts $11b merger gets green light from Competition Tribunal' (AFR, 20 June 2017). See my case page for further details an links.

14 June 2017 - High Court unanimously dismisses air cargo appeals

The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The appeals focus on the meaning of a market 'in Australia'. The High Court's judgment summary states that:

'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia'

View judgment. See High Court case page. See also my case page for links to ealier judgments and commentary. Details to follow.

 

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Hot topics

Competition Policy Review (Harper)

Harper Review

Read moreThe first major review of competition policy in Australia was conducted in 2014-2015 with the final report released on 31 March 2015. The Government has accepted many of the recommendations. A reform bill designed to implement these recommendations was introduced into the House on 30 March 2017; a separate MMP bill has passed the House and is before the Senate.

 

Misuse of market power

Image of market power

Read moreAlways topical, the issue of misuse of market power featured prominently in the Harper Review, with the Panel recommending introduction of an effects test. In March 2016 the Government announced that it would introduce an effects test; a bill was introduced on 1 December 2016 and has (with amendment) passed the House. It is before the Senate.

Another merger authorisation

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Read moreOn 22 June 2017 the Tribunal handed down its decision in Tabcorp's merger authorisation application; the merger was approved. This represents the third successful application for merger authorsation to the Tribunal since it became first instance decision maker in merger authorisation claims in 2007; there have been no unsuccessful applications. The ACCC and CrownBet have applied for judicial review of the Tribunal's decision.

 

Cartels and agency arrangements

TPA cover

Read moreThe 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 led to some uncertainty about the circumstances in which agents may be considered in competition with their principals for purposes of the cartel laws. The appeal decisions in both cases were handed down on 31 July 2015. The ACCC successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)

First criminal cartel case

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Read moreOn 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.

 

Market in Australia

Handshake image

Read moreIn June 2017 the High Court unanimously dismissed appeals from Air NZ and PT Garuda Indonesia relating to the air cargo cartel; the focus of the appeal was on whether the parties' conduct occurred in a 'market in Australia', as was then required in relation to price fixing. The High Court unanimously held that there was a market in Australia.

 

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): business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; vacations computer key courtesy of Stuart Miles (Image ID: 10091676) at FreeDigitalPhotos.net; handshaking courtesy of Photokanok at FreeDigitalPhotos.net,

 

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