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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.'

22 June 2017 - ACCC will not oppose Cabcharge's proposed acquisition of Yellow Cabs in Queensland

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Yellow Cabs (Qld), concluding that the acquisition was unlikely to 'result in Cabcharge foreclosing competition from alternative non-cash payment system providers, as there are a number of alternative systems available and it is drivers who choose which system to use' and that the taxi business is also being 'constrained by the popularity of ridesharing services such as Uber'. View media release. View merger register.

21 June 2017 - Baxt Lecture on Designing Cartel Sanctions

Judge Douglas Ginsburg (Federal US judge on the Court of Appeals for the District of Columbia and Professor of law, George Mason University) delivered the 8th Annual Baxt Lecture at the Melbourne Law School this evening, speaking on 'Designing Cartel Sanctions: A Continuing Debate'. Judge Ginsburg's address focussed on the importance of directing sanctions to the individuals involved in the contraventions, rather than continuing to increase corporate sanctions; the latter, it was argued, both fails to increase deterrence and imposes penalties on shareholders who were not involved in the misconduct and cannot be deterred.

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.

13 June 2017 - ACCC will not oppose GE's proposed acquisition of Baker Hughes

The ACCC has announced it will not oppose the acquisition of Baker Hughes by GE. The acquisition will result in the formation of a new listed company 'combining the oil and gas business of GE and the whole business of Baker Hughes' and is valued at approximately US$32 billion. The ACCC's announcement follows an announcement by the US DOJ that it filed a consent decree requiring certain divestitures as a condition of the acquisition which, the ACCC indicated, would resolve any potential competition concerns. See ACCC media release. See merger register.

9 June 2017 - High Court to deliver judgment in air cargo case

The High Court has announced it will deliver its judgment in the Air New Zealand/PT Garuda Indonesia Ltd appeals on Wednesday 14 June at 10:15am. The appeals focus on the meaning of a market 'in Australia'. See High Court case page. See also my case page for links to ealier judgments and commentary.

8 June 2017 - ACCC will not oppose proposed merger of Dow and DuPont

The ACCC has announced it will not oppose the proposed merger of The Dow Chemical Company and EI Du Pont de Nemours and Company in Australia.

The merger was previously cleared by other agencies; in the EU approval was subject to divestiture of certain assets. The ACCC considers that their earlier competition concerns regarding the merger will be addressed by those global divestments.

See ACCC media release. See merger register.

Teddy Roosevelt 1918.  Public domain image: source: https://commons.wikimedia.org/wiki/File:Theodore_Roosevelt_in_1918.jpg7 June 2017 - McCowan: 'A Trust-Busting wind is blowing'

Mark McCowan, Parnter at Corrs Chambers Westgarth, has published an opinion piece entitled 'A Trust-Busting Wind is Blowing', warning against populist reforms to Australian competition laws.

See Mark McCowan, 'A Trust-Busting Wind is Blowing' (Corrs Chambers Westgarth Insights, 7 June 2017).

7 June 2017 - Andrew Leigh MP's on competition: A Few Big Firms

Image sourced from http://www.aph.gov.au/Senators_and_Members/Members/Members_Photos (CC BY-SA 3.0)Shadow Assistant Treasurer, Andrew Leigh MP's, speech at Murdoch University today, entitled 'A Few Big Firms', is now available online. See Andrew Leigh, 'A Few Big Firms' (Sir Walter Murdoch School Policy Seminar, Murdoch University, 7 June 2017).

In the speech Leigh sums up 'the problem', as he sees it, as follows: 'more than half of Australia’smarkets are concentrated, some of our biggest industries are very concentrated and the problem is getting worse because fewer new businesses are being created and more existing businesses are merging. We are seeing a rise in firms using their market power for anti-competitive purposes to the detriment of small businesses, workers and consumers. And we are seeing too much anti-consumer conduct which is reducing the incentive of firms to compete on the price, quality and effectiveness of their goods and services.'

Leigh then considers possible solutions, including making non-compete clauses unenforceable, giving the ACCC market studies powers, increasing penalties, both for consumer and competition breaches (in the case of competition breaches Leigh advocates linking anti-competitive penalties to total sales) and increasing the ACCC's budget.

7 June 2017 - Shadow Assistant Treasurer wants crack down on non-compete clauses

Shadow Assistant Treasurer, Andrew Leigh MP, will call for more to be done about Australia's 'growing competition problem' in a seminar to be delivered at Murdoch University today. Amongst other things, he will argue something needs to be done about the increasing use of non-compete clauses which, he will argue, 'make it harder for employees to switch to a better job and stifle start-ups'. See Gareth Hutchens, 'Labor flags plan to crack down on non-compete clauses for employees' (The Guardian, 7 June 2017). See also, AAP, 'Industry concentration worsening: Labor' (7 June 2017).

7 June 2017 - Andreas Stephan on the normative justifications for cartel criminalisation

Although not Australian specific, UK Prof (and frequent visitor to Aus) Andreas Stephan's new paper examining the normative justifications for cartel criminalisation is nevetheless highly relevant to Australian competition law enforcement. Australia has criminalised cartels since 2009 but has yet to charge any individuals for cartel conduct.

The paper (Andreas Stephan, 'An empirical evaluation of the normative justifications for cartel criminalisation' (2017) Legal Studies) also references an Australian empirical study on cartel criminal sanctions conducted by the University of Melbourne and published in 2013 (Beaton-Wells and Parker ‘Justifying criminal sanctions for cartel conduct: a hard case’ (2013) 1(1) J Antitrust Enforcement 198)

Link to original Tweet

2 June 2017 - Beaton-Wells: Bigger fines needed for cartel conduct

Professor Caron Beaton-Wells has an item in today's The Conversation calling for bigger penalties for companies found to have engaged in cartel conduct that causes harm to Australian consumers. Current fines are described as 'woefully below international benchmarks'. The ACCC's appeal against the Court's decision to fine Yazaki only A$9.5 million for cartel conduct is discussed. See Caron Beaton-Wells, 'Cartels caught ripping off Australian consumers should be hit with bigger fines' (The Conversation, 2 June 2017).

2 June 2017 - ACCC on the Tabcorp authorisation application

There's plenty of media about the Tabcorp merger authorisation application currently before the Tribunal. The ACCC made submissions to the Tribunal today arguing that the proposed merger would not reap the public benefits claimed. A decision is expected from the Tribunal (comprising Justice Middleton, Grant Latta and Darryn Abraham) later this month. See, eg, John Durie, 'ACCC off leash over Tabcorp-Tatts' (The Australian, 1 June 2017), John Stensholt, 'ACCC "not satisfied" Tabcorp Tatts merger in public interest' (AFR, 2 June 2017) and Richard Gluyas, 'ACCC leaves $11bn Tabcorp-Tatts merger hopes in tatters' (The Australian, 2 June 2017). See further John Durie, 'Tabcorp's bet could sour' (The Australian, 2 June 2017, p 38).

30 May 2017 - Poddar on ACCC's oOh!media opposition

Following release of a statement of issues by the ACCC on 4 May, the proposed merger between APN Outdoor Group Ltd and oOh!media was terminated. Clifford Chance's Dave Poddar has published a client briefing on the proposed merger, noting the importance of 'market definition and dynamics in media mergers'. See Dave Poddar, 'The ACCC says Ooh No! to the oOh!media - APN Outdoor merger' (Clifford Chance Client Briefing, 30 May 2017). See also Patrick Hatch, 'oOh!Media and APN drop $1.6 billion merger after competition concerns' (SMY, 19 May 2017), Simon Canning, 'ACCC boss hits out at Ooh Media and warns outdoor merger failure offers lessons for media consolidation' (Mumbrella, 22 May 2017) and Bridget Carter & Scott Murdoch, 'Future foggy as APN Outdoor, oOh!media deal fails' (The Australian, 22 May 2017).

30 May 2017 - ACCC appeals Yazaki Corporation penalty decision

The ACCC has appealed the decision of the Federal Court to impose a penalty of $9.5 million against Yazaki Corporation for collusion; the ACCC had sought a penalty between $42-$55 million. View media release. View case page.

23 May 2017 - In Competition: 'A Tale of Two Authorisations'

James Gould has a post in King&Wood Mallesons' 'In Competition' blog discussing two recent South Australian authorisation decisions. See James Gould, 'South Australia: A Tale of Two Authorisations' (In Competition, 23 May 2017).

18 May 2017 - Fly-in fly-out airline alliance authorised

The ACCC has authorised a Charter Alliance Agreement between Virgin and Alliance Aviation Services, pursuant to which the Virgin Australia Regional Airlines and Alliance Aviation Services will 'jointly bid for and contract with corporate charter customers in relation to the provision of fly-in fly-out (FIFO) services.' This follows the ACCC's initial proposal to deny authorisation in December 2016; subsequent market inquiries led the ACCC to conclude there were a 'number of factors that mitigate the risk to competition' so that likely public benefits will outweigh likely detriments.. View media release. View authorisation register.

16 May 2017 - Tabcorp merger hearings begin in the Tribunal

The Australian Competition Tribunal commenced its hearing of Tabcorp's merger authorisation application today. The matter is listed in the Victorian Fedearl Court Registry from 16 May - 2 June 2017 before Justice Middleton (President), Mr Grant Latta AM (Member) and Dr Darryn Abraham (Member). See, eg, John Stensholt, 'ACCC hits out at Tabcorp as merger hearings begin' (AFR, 16 May 2017) and Ben Butler and Sarah-Jane Tasker, 'Tatts, Tabcorp merger will produce a behemoth, says ACCC' (The Australian, 17 May 2017).

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30 March 2017 - Harper Reforms before the House

The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 has been introduced into the House. Second reading debate has been ajourned until the next sitting of Parliament.

29 March 2017 - MMP bill read in the Senate; adjourned until next sitting

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was read for a first time in the Senate and second reading speeches commenced but were then adjourned until the first day of the next sitting period.

28 March 2017 - MMP bill passes the House

The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 passed the House of Representatives today, incorporating the Government's amendments (changing the commencement date and removing mandatory factors for court to consider).

The Bill is listed for debate in the Senate tomorrow.

 

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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.

First criminal cartel case

Handshake image

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.

 

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)

Resale Price Maintenance

Merger authorisation

Read moreIn December 2014 the ACCC granted its first RPM authorisation. The Harper Review has recommended retaining the per se prohibition on RPM, but introducing a notification option.

 

Agreed Penalties

Handshake image

Read moreThe decision in CFMEU cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA; on 9 December 2015 the High Court overturned this decision with the result that parties may continue to negotiate and submit agreed penalties to the Court.

 

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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