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February 2017

New Year16 February 2016 - Senate Economics Committee gives green light to effects test

I've posted a blog piece providing an overview and some commentary on today's Senate Economics Committee report on the misuse of market power bill. See Julie Clarke, 'Senate Committee Gives Green Light to Effects Test' (Australian Competition Law Blog, 16 February 2017).


16 February 2017 - Senate Economics Committee recommends passage of misuse of market power bill

The Senate Economics Committee today released its report on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016which will, amongst other things, introduce an effects test into Australia's abuse of power laws.

Labor senators dissented, claiming the effects test is 'a particularly dangerous economic policy'. Nick Xenophon, while 'broadly' supporting the committee recommendations, offered some additional comments, including once again calling for introduction of divestiture powers for breaching the misuse of market power provision. Further details to follow on my report page.


13 February 2017 - Banks' submission in ApplePay authorisation claim published

John Durie's latest column discusses the banks' submission responding to the ACCC's draft decision denying it authorisation to collectively negotiate with Apple over ApplePay. See John Durie, 'Banks stake out Apple Pay battleground in ACCC submission' (The Australian, 13 February 2017). See generally authorisation register.


9 February 2017 - Sims confirms its review of the BP's takeover of Woolworths petrol station will be a long one

In an interview with the Australian, ACCC Chairman Rod Sims, has confirmed that the upcoming review of BP’s $1.8b acquisition of 527 Woolworths petrol station and convenience sites (announced in late December 2016) will be lengthy, with local competition issues to be assessed for all of the stations stations will need to be assessed. For more details see Matt Chambers, 'ACCC’s Sims: review of BP stations deal will be long' (The Australian, 9 February 2017).


9 February 2017 - ACCC will not oppose Ruralco’s proposed acquisition of TP Jones

The ACCC has announced it will not oppose Ruralco’s proposed acquisition of TP Jones, both 'rural merchandise retailers based in Tasmania'. See ACCC media release. See merger register.


8 February 2017 - Apple versus the banks ... Apple goes on the attack

Plenty of media this week generated by Apple's latest submission in response to the application by Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank's for authorisation to collectively bargain with and boycott Apple in relation to Apple Pay.

In November last year the ACCC issued a draft determination proposing to deny authorisation to the banks; however, it also noted that its draft decision was 'finely balanced'.

Apple's latest submission is in response to the draft determination. It concludes bluntly that it is Apple's view that the application by the banks 'is not primarily about NFC access' but rather is 'fundamentally about the applicant banks avoiding paying Apple fees for use of Apple Pay ... or specifically charging their cardholders for that use to discourage consumer use of Apple Pay and thereby reduce competition with their own proprietary wallets.' Authorisation would, Apple argues, produce no public benefit but only private benefit to the banks by allowing them to 'continue to free-ride on the significant investments made by Apple ... specifically in this case on the underlying technology installed on Apple devices to facilitate NFC payments without paying any fees for transactions processed via Apple Pay's secure element infrastructure ...'

For some more detail see my blog post. For a sample of recent media on this see, for example, James Eyers, 'Apple claims banks want digital wallets as a new revenue source' (AFR, 5 February 2017); Ariel Bogle, 'Apple's fight with big banks is getting even nastier, and it was already nasty' (MashableUK, 6 February 2017); Asha McLean, 'Apple argues Australian bank bargaining cartel is centred on fee avoidance' (ZDNet, 6 February 2017).


8 February 2015 - Dairy Inquiry

The ACCC is holding public inquiries in relation to the Dairy Inquiry from 6 February to 22 March 2017. It has been reported that up to 330 dairy farmers have given evidence in the first two days of ACCC hearings in Queensland and NSW.

There is likely to be ongoing media on this - for a sample see Simone Smith, 'ACCC dairy inquiry: Hundreds of dairy farmers give evidence' (The Weekly Times, 7 February 2017), 'ACCC investigating claims milk processors threatening farmers' (Radio National (audio), 7 February 2017); Shan Goodwin, 'No power to bargain for dairy farmers, ACCC told' (North Qld Register, 7 February 2017); Shan Goodwin, 'ACCC dairy inquiry has teeth' (The Australian Dairy Farmer, 27 January 2017).


5 February 2015 - Sims: ACCC too soft on penalties

The Chairman of the ACCC, Rod Sims, has argued that the ACCC has been too soft on penalties in the past. The ACCC will, in future, seek higher penalties. In addition, in response to the decision in Flight Centre, which Sims claims has 'profound implications' for business, the ACCC will launch a review across the e-commerce sector. See Patrick Durkin, 'Rod Sims says ACCC 'too cautious' on penalties in the past' (AFR, 5 February 2017).


January 2017

24 January 2017 - ACCC invites dairy farmers to air competition complaints

The ACCC has announced it is 'inviting dairy farmers to share any concerns they may have about competition and fair trading at a series of public forums around the country' as part of the ACCC's Dairy Inquiry. See media release.


20 January 2017 - Senate committee submissions available

Submissions were added progressively to the Commitee website and are available here. The Commitee is due to report on 16 February. For more information see my report page.


14 January 2017 - Durie on the Woolworths decision

John Durie has an item today discussing the Woolworths unconscionable conduct decision. It includes discussion of some of the submissions to the misuse of market power Senate review which have identified the decision as problematic for small business as well as more general discussion on some of the submissions. See John Durie, 'Woolies decision weakens watchdog the ACCC' (The Australian, 14 January 2017).


9 January 2017 - Flight Centre blog

I have a blog piece on the Centre for Competition Policy's blog today discussing the recent High Court decision in Flight Centre. See 'Flight Centre: Australian High Court finds agent competed with principal and breached cartel laws' (Centre for Competition Policy Blog, 9 January 2017)


6 January 2017 - Pharmaceutical competition

Terry Barnes has an opinion piece in today's AFR discussing the PBS, lobbying from the Pharmacy Guild of Australia and current protections from normal market competition. See Terry Barnes, 'A taste of their own medicine' (Australian Financial Review, 5 January 2017) (behind pay-wall)



1 January 2017 - MMP Bill submissions due soon

Reminder that submissions on the Senate Economics Committee's review of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 are due by 9 January 2017 with the Report expected on 16 February. 


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