Competition Law News

20 December 2018 - ACCC issues draft decision on interstate rail network access undertaking

In a draft decision announced today, the ACCC stated that it would 'not accept the proposed 2018 interstate rail network access undertaking lodged by the Australian Rail Track Corporation (ARTC)', identifying a number of areas in which the undertaking was not considered acceptable.

View media release. View draft decision.

20 December 2018 - ACCC does not oppose Thales-Gemalto deal

The ACCC has decided not to oppose the proposed acquisition by Thales SA of Gemalto NV (who each supply data security products), after accepting court enforceable divestiture undertakings from Thales. The undertaking requires Thales to sell its global GP HSM business and is linked to commitments made to the European Commission.

View media release. View authorisation register.

19 December 2018 - Rural Doctors get approval to negotiate

The ACCC has authorised the Rural Doctors Association fo Australia to 'negotiate contracts with hospitals and health facilities on behalf of rural doctors for 10 years.

View media release. View authorisation register.

19 December 2018 - Website hiatus

I am on leave and computerless until late January (I am not yet clear on how I will cope with this ... I'd be most grateful if the ACCC and the Federal Court would just stop doing anything during this time ...).

This site will not be updated between 20 December - 28 January, but I will post any significant news items on my Twitter feed during that time:

@competitionlaw

Happy New Year to all ...

18 December 2018 - ACCC in the money

The Australian Treasurer, Josh Frydenberg, has announced a $35m funding boost for the ACCC to appoint 16 additional investigators (six in cartels and 10 in the ACCC's anti-competitive conduct teams) in the hope this will result in an increased number of cartel prosecutions and 'greater capacity to investigate competition issues, particularly in the financial sector'.

In announcing the funding, Frydenberg said:

A Resource Review of the ACCC will also be undertaken to ensure it is appropriately funded for the critical work that it does in protecting consumers and enhancing competition across our economy.

Ensuring the ACCC is well resourced to protect consumers and to tackle cartel and anti-competitive is part of our plan for a stronger economy.

View Treasury press release.

See also Tom McIlroy, 'ACCC cartel investigations boosted with $35 million in new funding' (AFR, 15 December 2018) and Cat Fredenberg, 'ACCC gets $35m boost to take on cartels' (Lawyerly, 18 December 2018). The Australian has something too, but until its paywall lets me actually link to the relevant URL I give up. Plenty of websites with paywalls (like Lawyerly) manage to send me to a unique URL with teaser first lines I can link to, but I've completely given up on The Australian ...

14 December 2018 - The Economics of Privacy Regulation

In the final Competition Law and Economics Network seminar for 2018 Dr Elif Kiesow Cortez spoke on the economics of privacy regulation - a terrific seminar on an increasingly important topic.

See CLEN discussion group page

To join the mailing list for CLEN events or or make any suggestions for topics the group might discuss at future events, please send your name and affiliation to the CLEN Centre Administrator.

13 December 2018 - ACCC looking into Google v Unlockd

It is being reported that the ACCC is investigating if Google's restriction on Unlockd breached competition laws. Although the ACCC is not commenting, this is being inferred from references in the Digital Platforms Preliminary Report which describes several cases under investigation, including 'whether access restrictions imposed by a digital platform on a third-party app developer may raise issues under section 46 ...' (page 18)

In June Unlockd sued Google alleging anticompetitive and unconscionable behaviour involving threats to block its app (see Misa Han, 'Unlockd will 'cease to exist' if Google blocks the app' (AFR, 3 June 2018) and Cat Fredenburgh 'Unlockd wins bid to stop Google blocking app in Australia' (Lawyerly, 31 May 2018)). The case was discontinued on 31 October (Colin Kruger, 'Start-up Unlockd puts off legal action in Australia against Google' (SMH, 31 October 2018)).

See:

• Paul Smith, 'ACCC investigates Google abuse of power over Unlockd collapse' (AFR, 12 December 2018)
• Janith Aranze, 'ACCC looks into Google’s misuse of market power against Unlockd' (GCR 12 December 2018)
• Christine Caulfield, 'ACCC probes abuse of dominance case over third-party apps' (Lawyerly, 12 December 2018)

13 December 2018 - ACCC raises preliminary concerns about proposed TPG/Vodafone merger

The ACCC has released issued a statement of issues in relation to the proposed TPG Telecom/Vodafone Hutchinson Australia merger. Chairman Rod Sims said:

[We] have preliminary concerns that removing TPG as a new independent competitor with its own network, in what is a concentrated market for mobile services, would be likely to result in a substantial lessening of competition. If TPG remains separate from Vodafone, it appears likely to need to continue to adopt an aggressive pricing strategy, offering cheap mobile plans with large data allowances.

Our preliminary view is the merged TPG-Vodafone would not have the incentive to operate in the same way, and competition in the market would be reduced as a result. A mobile market with three major players rather than four is likely to lead to higher prices and less innovative plans for mobile customers

See TPG/Vodafone media release

See TPG/Vodafone statement of issues.

12 December 2018 - Inquiry into access conditions for Telstra's regulated fixed line services

The ACCC has commenced an inquiry into making final access determinations for Telstra's fixed line services and wholesale ADSL.

Submissions can be made as part of a preliminary consultation on the ACCC's consultation hub until 25 January 2018. Further submissions and other inquiries can be made until 31 March 2018

See media release.

View Fixed line services FAD inquiry 2018 home page

11 December 2018 - More transparency needed in residential mortgage pricing

The ACCC has released the final report in its Residential Mortgage Price inquiry, finding that opaque and discretionary pricing by banks 'makes it difficult and time consuming for borrowers to shop around and stifles price competition'.

See media release,

See report.

10 December 2018 - ACCC commences proceedings against NSW Ports

The ACCC has instituted Federal Court proceedings against NSW Ports Operations Hold Co Pty Ltd and two of its subsidiaries alleging they made agreements with the State of NSW having an anti-competitive purpose and effect.

ACCC Chairman, Rod Sims:

We are alleging that making these agreements containing provisions which would effectively compensate Port Kembla and Port Botany if the Port of Newcastle developed a container terminal, is anti-competitive and illegal.

...

The compensation and reimbursement provisions effectively mean that the Port of Newcastle would be financially punished for sending or receiving container cargo above a minimal level if Port Botany and Port Kembla have spare capacity. This makes development of a container terminal at the Port of Newcastle uneconomic ...

We are taking legal action to remove a barrier to competition in an important market, the supply of port services, which has significant implications for the cost of goods across the economy, not just in New South Wales. The impact of any lessening of competition is ultimately borne by consumers.

...

I have long voiced concerns about the short-term thinking of state governments when privatising assets and making decisions primarily to boost sales proceeds, at the expense of creating a long-term competitive market ... These anti-competitive decisions ultimately cost consumers in those states and impact the wider economy in the long term.

View media release.

10 December 2018 - Digital Platforms preliminary report released

One week after it was sent to the Government the ACCC has published its preliminary Digital Platforms report.

View media release and preliminary report (375 pages). For more detail and links to news media see my separate digital platforms inquiry page.

The media release states, in part:

'The report found that key digital platforms, Google and Facebook, had both the ability and incentive to favour related businesses or those businesses with which they may have an existing commercial relationship. The platforms’ algorithms rank and display advertising and news content in a way that lacks transparency to advertisers and news organisations.

"Organisations like Google and Facebook are more than mere distributors or pure intermediaries in the supply of news in Australia; they increasingly perform similar functions as media businesses like selecting, curating and ranking content. Yet, digital platforms face less regulation than many media businesses," Mr Sims said.

"The ACCC considers that the strong market position of digital platforms like Google and Facebook justifies a greater level of regulatory oversight," Mr Sims said.

"Australian law does not prohibit a business from possessing significant market power or using its efficiencies or skills to ‘out compete’ its rivals. But when their dominant position is at risk of creating competitive or consumer harm, governments should stay ahead of the game and act to protect consumers and businesses through regulation."'

The ACCC has also published some commissioned research (consumer surveys and a 175 page report on the Impact of Digital Platforms on News and Journalistic Content prepared by the Centre for Media Transition)

A media conference will be held at 12:30 and livestreamed here and here.

3 December 2018 - Digital Platforms draft report expected this week

The ACCC was scheduled to submit its draft report on its Inquiry into Digital Platforms to the Government today. We now await the public release ...

See, eg, John McDuling, 'It's crunch time for tech giants, as ACCC probe enters home stretch' (SMH, 3 December 2018), Anne Davies, 'World watches as Australian regulator rules on Facebook and Google' (The Guardian, 3 December 2018) and Lilly Vitorovitch, 'ACCC signs off on probe of tech giants' platforms' (The Australian, 3 December 2018, p 26).

29 November 2018 - Terceiro to take over as General Editor of ABLR

Thomson Reuters has announced that Michael Terceiro will take on the role of General Editor of the Australian Business Law Review. Michael takes over from the late Prof Bob Baxt, who was founding editor of the journal.

On his Competition and Consumer Protection Law blog, Michael says he's excited to be takeng over the role and will aim to 'continue the high standards which Bob set for the ABLR'.

29 November 2018 - Yazaki take away: run, don't walk, for leniency

NZ competition and regulation economist, Donal Curtin, has posted his thoughts on the Yazaki penalty on his Economics New Zealand blog. Among other things, his advise to those in a cartel (or who discover they're in one) is:

... do not walk, do not amble, do not pause to think you're well hidden in the undergrowth and they'll never find you, RUN for the protection of the cartel leniency programme.

29 November 2018 - Sims: Competition law should remain focused on consumer welfare

In a keynote address delivered to the RBB Economics Annual Conference in Sydney today, ACCC Chair Rod Sims defended the consumer welfare standard, stating that competition law and policy 'should be first and foremost about protecting and promoting competition for the welfare of consumers' and while this might achieve other objectives, like income distribution, these broader public interest considerations should not be introduced into the core of competition law enforcement.

'I want to be clear that I am opposed to introducing broader public interest considerations into the core of competition law enforcement.

... this renewed questioning of the economic foundation of competition law has led to calls to expand the range of considerations in competition law, to include both broader economic considerations (such as income inequality, low wage growth, or unemployment) and non-economic considerations (such as concentrations of political power, financial stability, media diversity, or environmental protection).

In my view, it is inadvisable and counterproductive to import these considerations into the core of competition law. Competition law is enforced by an independent authority, not by elected officials, so the objectives must be clear. Competition law and policy should be first and foremost about protecting and promoting competition for the welfare of consumers.'

See ACCC media release.

See full transcript.

29 November 2018 - ACCC raises concerns over Bingo's proposed acquisition of Dial-a-Dump

The ACCC has issued a Statement of Issues outlining preliminary competition concerns relating to Bingo's proposed acquisition of Dial-a Dump ...

See ACCC media release.

See merger register.

27 November 2018 - Debate on bill to repeal s 51(3) delayed

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 which, if passed, will repeal subsection 51(3) (competition law exemption for certain licencing and or assignment of IP rights) was originally scheduled for debate in the Senate today. However, it dropped off the daily Red and was not debated. Let's see what happens tomorrow ...

23 November 2018 - Senate to debate bill to repeal s 51(3) next week

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 is scheduled for debate in the Senate on Tuesday next week.

The bill, which passed the House of Representatives on 17 October and was introduced to the Senate the following day, will 'remove the exemption for conditional licensing or assignment of IP rights such as patents, registered designs, copyright or eligible circuit layout rights from prohibitions on restrictive trade practices'. It will do this by repealing subsection 51(3).

23 November 2018 - Misuse of Marker Power paper by Dr Katharine Kemp now available online

Dr Katherine Kemp's paper, 'Misuse of Market Power in Australia and Abuse of Dominance in Canada: Two Legislated Effects Tests for Unilateral Conduct' which appeared in volume 26 of the Australian Journal of Competition and Consumer Law earlier this year, is now available online at SSRN.

Earlier this year Katherine also published Misuse of Market Power: Reform and Rationale (CUP) - a must read for Australian practitioners.

23 November 2018 - ACCC authorises SA councils' joint waste tenders

The ACCC has granted authorisation to 'four Adelaide councils to jointly procure certain waste management services.' The councils and a council-owned precurement body are authorised:

• 'to supply waste processing and disposal services for recyclables, organics and residual waste, and
• to supply collection services for bulk bins, hard waste and street litter.

This follows a proposal to approve on 14 September. The ACCC considers that the joint tender process will encourage more competition from suppliers than separate tenders and is likelyt o create efficiencies that should be passed on to local residents. The ACCC did not consider it likely that the joint tenders would reduce competition in the long run. The ACCC has previously authorised other similar proposals.

See

• ACCC media release, 'ACCC authorises SA councils’ joint waste tenders' (23 November 2018)
• ACCC Authorisation Register (Council Solutions & Ors (ancillary))
• ACCC Authorisation Register (Council Solutions & Ors (processing))

21 November 2018 - ACCC releases discussion paper on electricity monitoring

The ACCC has released a discussion paper relating to how it will conduct its new role of monitoring and reporting on supply of electricity in the National Electricity Market. Submissions are sought on three key areas:

• 'the analytical framework for this role, including our expectations of market outcomes and participant behaviour, and the measures we will use to monitor and analyse prices and behaviour
• how we will monitor the impact of policy developments
• the processes and timing for the collection of information, including what data we will require.'

Submissions close 19 December. The first report is due to the Treasurer on 31 March 2019.

See media release. View discussion paper.

Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

21 November 2018 - Pacific National/Aurizon freight deal before the federal court

The ACCC launched action in July to block the sale of some of Aurizon's assets to Pacific National alleging the parties had reached an anti-competitive understanding relating to Aurizon's intermodal business (contrary s s 45) and alleging the proposed acquisition would substantially lessen competition (contrary to s 50).

In August the Federal Court ordered Aurizon to continue operating its Qld intermodal business while the ACCC's case against Pacific National and Aurizon is determined.

On Friday the ACCC withdrew some of its allegations of collusive dealings (particularly those focussed the purpose of SLC)

The hearing commenced in the Federal Court today, with Noel Hutley SC (for Pacific National) alleging the ACCC misrepresented the extent to which the acquisition could lead to a misuse of market power. The matter is being heard in Melbourne before Justice Jonathan Beach.

See merger register relating to original proposed deal.

See also:

• Joe Aston and Myriam Robin, 'ACCC owes Aurizon and Pacific National chiefs an apology' (AFR, 20 November 2018)
• Patrick Hatch, 'Freight giants hit back at ACCC over blocked rail deal' (SMH, 19 November 2018)
• Paul Garvey, 'ACCC to pay Aurizon legal costs' (The Australian, 19 November 2018, page 19)
• Mathew Stevens, 'Aurizon, Pacific National collusion case opens with pruned ACCC claim' (18 November 2018) (also as Matthew Stevens, 'Landmark collusion case pared by ACCC' (AFR, 19 November 2018, page 27)
• Christine Caulfield, 'Freight cos. slam ACCC's collusion case over rail deal at start of tial' (Lawyerly, 19 November 2018)
• Perry Williams, 'Linfox snaps up Aurizon haulage' (Weekend Australian, 13 October 2018, page 26)

16 November 2018 - ACCC will not oppose Santos-Quadrant deal

The ACCC has announced it will not oppose the proposed acquisition of Quadrant Energy Holdings Pty Lt by Santos Limited. Both actively produce and supply natural gas and crude oil in WA and jointly own certain domestic gas processing facilities.

In its media release the ACCC stated that it considered it unlikely the proposed acquisition would substantially lessen competition in supply of gas to domestic customers in WA; importantly, it would 'continue to face strong competition from a range of suppliers' including Chevron and Woodside.

View merger register for more details.

15 November 2018 - ACCC will not oppose Punters' acquisition of Racenet

The ACCC has announced it will not oppose the proposed acquisition of Racing Internet Services Pty Ltd (Racenet) but Punters Paradise Pty Ltd (Punters). Punters is a subsidiary of News Corp Australia Investments Pty Ltd. Both Punters and Racenet are digital platforms providing racing news. The ACCC considered that there were numerous alternative sources of online racing news and it was unlikely the proposed acquisition would substantially lessen competition.

View media release and merger register for more details.

15 November 2018 - ACCC will not oppose Vossloh Austrak deal

The ACCC has announced it will not oppose the proposed acquisition of Austrak by Vossloh Australia. Both are suppliers of rail track components. There is no horizontal overlap between products supplied; the ACCC focussed on vertical links, considering whether the acquisition would enable the combined entity to 'lessen competition in either turnouts or fastenings by foreclosing its rivals'. The ACCC concluded existing manufacturers had capacity to expand output with the result that they would operate as a constraint on the merged entity.

View media release and merger register for more details.

12 November 2018 - Federal Court dismisses Obeid appeal against refusal to grant suppression order

The Federal Court has dismissed an application by Moses Obeid for leave to appeal against the Court's decision to refuse to grant a suppression order over part of its reasons for decision in an alleged bid rigging case.

The Federal Court dismissed the ACCC's bid rigging proceedings, but the ACCC filed an appeal on 3 August 2018 (yet to be heard).

As a result of this decision the judgment of 6 July 2018 is no longer subject to a suppression order.

See ACCC media release.

See also:

• Obeid v Australian Competition and Consumer Commission [2018] FCA 1713 (12 November 2018) (AustLII)
• Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 (AustLII)

8 November 2018 - ACCC will not oppose Nine-Fairfax merger

The ACCC has announced it will not oppose the proposed merger between Nine Entertainment and Fairfax Media.

In its media release the ACCC noted that it received more than 1,000 submissions as part of an 'extensive' investigation which raised 'extremely complex issues', but ultimately concluded that the 'proposed merger was not likely to substantially lessen competition in any market'.

View merger register for more details.

Plenty of media - from the Fairfax/Nine group: Max Mason, 'ACCC won't oppose merger of Fairfax Media and Nine Entertainment' (AFR, 8 November 2018), Jennifer Duke, 'Competition regulator gives green light to Nine-Fairfax merger' (SMH, 8 November 2018), Rosemarie Lentini, 'ACCC won’t oppose Nine-Fairfax merger' (Nine, 8 November 2018).

Other media: AAP, 'ACCC gives Nine, Fairfax merger the tick' (SBS News, 8 November 2018), Alex Druce (AAP), '$4B Nine, Fairfax merger clears ACCC hurdle' (The West Australian, 8 November 2018), Luke Henriques-Gomes and Amanda Meade, 'ACCC says it won't oppose Nine Fairfax takeover' (The Guardian, 8 November 2018) and plenty behind The Australian's paywall.

6 November 2018 - Public competition assessment published in relation to proposed acquisition of Woolworths service stations by BP

The ACCC has published a Public Competition Assessment of the proposed acquisition by BP of Woolworths' retail service station sites; it opposed this proposed acquisition in December 2017.

BP - proposed acquisition of Woolworths' retail service station sites (published 6 November 2018)

This is the fourth Public Competition Assessment published this year. The other were:

Sydney Transport Partners Consortium (including Transurban) - proposed acquisition of WestConnex interest (published 11 October 2018; acquisition not opposed by the ACCC on 30 August 2018, subject to court enforceable undertakings)

Caltex Australia Petroleum Pty Ltd - proposed acquisition of assets from Milemaker Petroleum (published 25 July 2018; acquisition not opposed by the ACCC on 4 May 2017)

Saputo Dairy Australia Pty Ltd proposes to acquire Murray Goulburn's operating assets (published 17 May 2018; acquisition not opposed by the ACCC on 4 April 2018 subject to court enforceable undertaking)

This is an improvement on the single PCA published in 2017 but short of the six published in 2016. See the PCA home page for details.

6 November 2018 - Gender Disparity in Cartel Conduct

Andrew Christopher and Sarah Andrews have a paper in the latest ABLR discussing gender disparity, both in Australia and internationally, in relation to individuals involved in cartel conduct. Why do women engage in cartel conduct less often than men? You'll need to read it to find out:

Andrew Christopher and Sarah Andrews, 'Gender Disparity in Cartel Conduct' (2018) 46 ABLR 238 (subscription required)

1 November 2018 - ACCC Guidelines

Last week the ACCC released its latest set of updated Guidelines:

• Merger authorisation guidelines
• Section 155 guidelines

These add to the set of updated Guidelines published on 31 August 2018:

• Guidelines on misuse of market power
• Guidelines on concerted practices
• Guidelines for Authorisation of conduct (non-merger)

31 October 2018 - PM demands action from ACCC on petrol prices

Prime Minister, Scott Morrison, has demanded 'answers' from the ACCC on rising fuel prices, saying in a local radio interview that he was "expecting some action".

ACCC Chair, Rod Sims, was on the media circuit yesterday, addressing the demands, highlighting the key problem as the 'overseas oil prices and the exchange rate' and (again) expressing the view that proposed divestiture powers were not likely to 'deal with the issue'.

See:

• Caron Beaton-Wells, 'Uncomfortable comparisons. Why Rod Sims broke the ACCC record' (The Conversation, 29 October 2018)
• Phillip Coorey, 'ACCC boss Rod Sims says can't do much about petrol price' (AFR, 31 October 2018)
• Greg Brown, 'Scott Morrison puts heat on petrol companies over prices' (The Australian, 30 October 2018)
• Rebecca Gredley, 'Prime Minister Scott Morrison demands answers from ACCC on record petrol prices' (The West Australian, 29 October 2018)
• Paul Karp, 'Petrol prices: Craig Kelly pushes Coalition to consider $3.5bn reduction in excise tax' (The Guardian, 31 October 2018)

See also the ACCC's second petrol industry report, released last week, and assoicated media release: Consumers have more options to shop around for petrol.

30 October 2018 - Sims: Challenges and opportunities in a 5G world

ACCC Chair, Rod Sims, gave a speech at RadComms 2018 today focussing on the impact of the rollout of 5G networks in Australia.

See ACCC, 'Challenges and opportunities in a 5G world' (Media release, 30 October 2018)

See Rod Sims, 'Competition & the 5G spectrum' (ACMA RadComms 2018, 30 October 2018)

26 October 2018 - Google's second submission to digital platforms inquiry

Google's second submission to the ACCC's Digital Platforms Inquiry has been published. The 9-page submission covers the following:

"1. How Google Search benefits users, advertisers and publishers.

2. Google’s incentives to be transparent about how its search algorithms work.

3. The highly competitive landscape in which Google’s advertising technologies compete.

4. Early proposals for regulatory reform arising through the Inquiry.

The ACCC's preliminary preport is due to be submitted to the Treasurer by 3 December 2018.

All submissions can be viewed on the Digital Platforms Inquiry Submissions page.

25 October 2018 - Rod Sims re-appointed ACCC Chair until 2022

ACCC Chair, Rod Sims, has been re-appointed for a third term. Sims was originally appointed in 2011 and his current term was due to expire in mid-2019; the re-appointment will see him remain in the position until (at least) 2022. Assuming Sims completes this term he will become the longest serving ACCC/TPC Chair (the first Chair of the TPC, Ron Bannerman, held the role for 10 years)

See Government media release: The Hon Josh Frydenberg MP, 'Government extends term of the ACCC Chair' (25 October 2018)

We’re delighted to share the news our Chair Rod Sims has been appointed for an additional 3-year term to 2022. pic.twitter.com/J8pQNqxU1G

— ACCC (@acccgovau) October 25, 2018

See also:

• Angus Livingston, 'ACCC chairman Rod Sims re-appointed until August 2022' (AFR, 25 October 2018)
• Charles McConnell, 'Australian antitrust chief gets third term' (GCR, 25 October 2018)
• 'ACCC chairman Rod Sims re-appointed' (SBS News, 25 October 2018)
• John Durie, 'Record run for Sims' (The Australian, 25 October 2018)
  (or see 'Few obvious alternate candidates to replace Rod Sims as ACCC chair' if you can get through the firewall)
• 'ACCC chairman Rod Sims re-appointed (9 News, 25 October 2018)

24 October 2018 - Special leave transcripts

The High Court transcripts for the Yazaki and Pfizer special leave applications are available.

• ACCC v Pfizer Australia Pty Ltd [2018] HCATrans 218 (19 October 2018) (AustLII)

• Yazaki Corporation & Anor v ACCC [2018] HCATrans 215 (19 October 2018) (AustLII)
• Yazaki Corporation & Anor v ACCC [2018] HCATrans 215 (19 October 2018) (JADE)

19 October 2018 - No special leave for Yazaki either ...

Yazaki has been refused special leave to appeal the Full Federal Court's decision ordering it to pay $46m for cartel conduct.

This comes on the same day that the High Court refused special leave for the ACCC in its misuse of market power/exclusive dealing case against Pfizer (no ACCC media release on that one yet ... (update: media release published around 12:30pm: ACCC media release on Pfizer)).

You win some ... you lose some.

Earlier this year (8 August) the High Court refused special leave for Prysmian in relation to a cartel finding against it on the basis that the application would 'not enjoy sufficient prospects of success to warrant a grant of special leave to appeal'

That makes it three strikes on the competition law special leave applications this year ...

19 October 2018 - No special leave for ACCC in Pfizer case

The ACCC has been refused special leave to appeal to the High Court in its misuse of market power/exclusive dealing case against Pfizer.

See Piper Alderman, 'ACCC v Pfizer – Special Leave Application - Oct 2018' (19 October 2018)

See also ACCC, 'High Court refuses the ACCC special leave to appeal Pfizer decision' (Media Release, 19 October 2018)

18 October 2018 - Special leave countdown

It's special leave day tomorrow, with two competition law cases before the High Court.

Yazaki
First up is Yazaki seeking special leave against a decision of the Full Federal Court which imposed the highest ever penalty in a competition law case in Australia ($46m). That is listed for hearing at 9:30 (Canberra time) at Court 2 Parkes Place. Appearing for the applicants is Bret Walker SC, M Borsky QC and T Spencer Bruce. For the ACCC we have Michael O'Bryan QC, D Tynan and R Yezerski.

Pfizer
Next is Pfizer where the ACCC is seeking Special Leave to appeal the Full Federal Court's decision that Pfizer had not engaged in misuse of market power or exclusive dealing in relation to its conduct ahead of the expiry of the patent for its drug, Lipitor. That is listed for hearing in Sydney and is second cab of the rank. Appearing for the ACCC is J Gleeson SC, John Halley SC and C Winnet; for Pfizer we have Noel Hutley SC, S Lawrance and B Hancock.

18 October 2018 - Section 51(3) repeal bill passes House

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 which will 'remove the exemption for conditional licensing or assignment of IP rights such as patents, registered designs, copyright or eligible circuit layout rights from prohibitions on restrictive trade practices' passed the House of Representatives yesterday and the second reading was moved in the Senate today. The Senate next sits on 12 November.

18 October 2018 - ACCC releases 2017-2018 annual report

In the same week as the House of Representatives Standing Committee on Economcis tabled its report on the ACCC's 2017 Annual Report the ACCC has released its 2017-2018 Annual Report (running to 346 pages).

In the accompanying press release the ACCC highlights the penalties it has imposed in the reporting year - almost $170 million. The press release also includes an infographic, apparently mandatory with all reports these days, with highlights including the following:

Enforcement
Total penalties from litigated competition matters: AU$120.1m
Total penalties from litigated consumer protection matters: AU$48.7m
Court cases commenced: 18
Immunity applications received: 9
In-depth investigations concluded: 108

Mergers and authorisations
Mergers assessed: 281
Mergers finalised by pre-assessment: 90%
Mergers subject to public or confidential review: 10%
Non-merger authorisation applications assessed: 27

Market studies
Market studies and inquiries 'completed or progressed': 8

Infrastructure
Views of the ACCC petrol price cycles webpage: 426,807
Investigation into breaches of industry-specific rules: 17
Monitoring reports: 6 petrol and 6 infrastructure

Infocentre
Infocentre contacts: 290,143
Infocentre small business contacts: 14,315

ACCC websites
ACCC website views: 12.4million (it's possible that was mainly by me ...)
Scamwatch website views: 5.2 million
Product Safety website views: 16.3 million

Notably, the number of exclusive dealing notifications assessed has reduced from 407 in the last report to 268 this time, no doubt driven by the removal of the per se prohibition on third line forcing last November.

18 October 2018 - ACCC will not oppose Cabcharge's acquisition of MTI

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Mobile Technologies International Pty Ltd, finding the acquisition was unlikely to result in Cabcharge 'supplying inferior dispatch systems or withholding technology features from rival networks'

View ACCC media release, 'ACCC will not oppose Cabcharge’s acquisition of MTI' (18 October 2018)

View Merger Register 64813

16 October 2018 - House of Rep's report on ACCC report ...

The House of Representatives Standing Committee on Economcis has tabled its report on the ACCC's 2017 Annual Report.

The Chair's forward notes that the ACCC is taking a more proactive approach to financial sector issues and now 'has a permanent role in monitoring the banks on competition matters [through the Financial Services Unit], enabling the regulator to play a competition champion role.'

See House of Representatives, 'Review of the Australian Competition and Consumer Commission Annual Report 2017' (15 October 2018)

See ACCC & AER annual report 2016-17

15 October 2018 - Sims: 'Data economy drives dynamic changes'

ACCC Chair, Rod Sims, delivered a speech in Sydney today on the local and global issues in regulating the data economy:

See media release.

See speech: Rod Sims, 'Gilbert & Tobin seminar: the data economy' (Sydney, 15 October 2018)

See also: Ry Crozier, 'ACCC worries hyperscalers' big data troves reinvent competition woes' (itnews, 15 October 2018) and James Riley, 'ACCC sharpens data focus' (InnovationAus.com, 18 October 2018).

14 October 2018 - Time to 'unleash' the ACCC on the banks?

The AFR's Patrick Durkin observes that there is growing pressure, from both sides of federal politics (and the Greens) to give the ACCC a bigger role in relation to banking regulation.

See: Patrick Durkin, 'Pressure builds to unleash ACCC on the banks' (AFR, 14 October 2018)

See also Mike Taylor, 'ACCC identifies as fin services 'competition champion'' (Money Management, 16 October 2018)

13 October 2018 - Special leave applications in two competition cases to be heard next week

Two competition law special leave applications up for consideration next week (19 October 2018): Pfizer and Yazaki.

In Pfizer the ACCC is seeking Special Leave to appeal the Full Federal Court's decision that Pfizer had not engaged in misuse of market power or exclusive dealing in relation to its conduct ahead of the expiry of the patent for its drug, Lipitor. That application (S172/2018) is listed for hearing in Sydney .

In Yazaki it is Yazaki that is seeking special leave against a decision of the Full Federal Court which imposed the highest ever penalty in a competition law case in Australia ($46m). That application (A24/2018) is listed for hearing in Canberra .

13 October 2018 - UniSA/ACCC workshop

Fascinating discussion on whether competition policy can delivery in the 'new digital age' at this year's UniSA/ACCC workshop.

Nice to catch up with @CompetitionProf, @Katharine_Kemp and plenty of other competition policy enthusiasts.

I promise there is a causal correlation btw the look on our faces and the fun we had @acccgovau and @UniversitySA CLEC workshop @Katharine_Kemp and @competition law pic.twitter.com/jNPhoDNpQQ

— Nicolas Petit (@CompetitionProf) October 12, 2018

12 October 2018 - Big data and competition policy

The competition team at Gilbert+Tobin have penned an 'insight' on the impact of competition policy on data access and management. This includes discussion of what the ACCC is doing as well as other regulators

See: G+T, 'The impact of competition policy on data access and management' (Insights, 12 October 2018)

12 October 2018 - ACCC does not oppose proposed sale of Aurizon's Qld intermodal business

The ACCC have announced that it will not oppose the proposed sale of Aurizon's Qld intermodal business to Linfox, noting that a public review is not required because the ACCC does not consider that it will give rise to a substantial lessening of competition. The ACCC had previously considered a proposed sale of part of the business to Pacific National.

See ACCC media release, 'ACCC will not oppose proposed sale of Aurizon’s Queensland intermodal business' (12 October 2018)

9 October 2018 - Baxt memorial lecture

The 9th Annual Baxt Lecture was delivered by Dr David Evans at the Melbourne Law School on Tuesday evening. David's presentation, '' was followed by a panel discussion featuring Dr David Evans, Greg Houston, Dr Katharine Kemp, Dr Stephen King, Associate Professor Sora Park and Lauren Solomon.

View website for a copy of the presentation and some photo's from the event.

See related media, including John Durie, 'Global internet powerhouses 'do a lot of good' (The Australian, 8 October 2018)' (paywall).

9 October 2018 - Durie on antitrust popularism

I'm a bit late on this one, for which I shall blame the Australian's paywall, but John Durie penned a topical piece on antitrust popularism recently, discussing whether or not Australian competition policy should look beyond consumer welfare and consider broader policy issues, particularly in relation to merger assessments and other authorisations.

Durie was no doubt prompted by the current US FTC hearings on the subject (which he references in the piece)

If you can get past the paywall you'll find it here: John Durie, 'Should Sims go beyond competition issues?' (The Australian, 21 September 2018) (page 27 of the paper version)

9 October 2018 - Glencore access dispute

The ACCC has finalised its arbitration of a dispute between Glencore and Port of Newcastle Operations (PNO) about terms and conditions for accessing the shipping channel service at the Port of Newcastle (a declared service until July 2031).

The ACCC ruled PNO should reduce charges for ships that carry coal for Glencore.

Glencore has welcomed the finding; PNO has expressed disappointment and has indicated it will appeal.

See ACCC media release.

View determination.

For a detailed discussion see Michael Coutts, Richard Robinson and Matthew Bull, 'ACCC orders Port of Newcastle to reduce charges for Glencore' (Herbert Smith Freehills, 10 October 2018.

Plenty of media including: Perry Williams, 'Regulator sides with Glencore in port dispute' (The Australian, 9 October 2018) (paywall), Matthew Kelly, 'Port of Newcastle to appeal ACCC ruling on how much it can charge ships carrying coal for Glencore' (The Herald, 8 October 2018)

9 October 2018 - Bill introduced to remove certain IP exemptions from CCA

The Government has introduced the Treasury Laws Amendment (2018 Measures No 5) Bill 2018 (yes really, that is what it is called). The Bill was introduced and read for a first time on 20 September 2018.

The summary states that it will 'remove the exemption for conditional licensing or assignment of IP rights such as patents, registered designs, copyright or eligible circuit layout rights from prohibitions on restrictive trade practices.' This will be done by repealing s 51(3) of the Act (as well as the Schedule 1 version). Of course it also introduces a new section (186) to explain how the application of the repeal of s 51(3) will apply. Importantly, the scheduled commencement is six months after Royal Assent, providing a transition period for business.

The repeal of s 51(3) was one of the recommendations of the Harper Review (rec 7). The Explanatory Memorandum refers to the Harper Report and the Productivity Commission's IP Arrangements Inquiry Report (Dec 2016) which also recommended its repeal. It further states:

4.4 IP rights and competition are no longer thought to be in ‘fundamental conflict’. IP rights do not, in and of themselves, have significant competition implications. Rather, competition implications arise in those cases where there are few substitutes or where the aggregation of IP rights may create market power.

4.5 The Commission considered that commercial transactions involving IP rights, including the assignment and licensing of such rights, should be subject to the CCA in the same manner as transactions involving other property and assets.

4.6 The Commission was of the view that at present, the immediate costs and benefits of removing the exemption under subsection 51(3) are finely balanced. However looking ahead, the benefits could rise as the level of licensing and cross licensing increases, especially in pharmaceutical and communications markets.

4.7 The repeal of subsection 51(3) brings Australia into line with other comparable jurisdictions. ...

Thanks to Rob Nicholls for the heads up on this one; with a title like that no wonder didn't capture our immediate attention!

View Bill page for the text of the bill and the EM.

2 October 2018 - ACCC commences inquiry into foreign exchange

The ACCC has commenced an inquiry into foreign currency conversion services. ACCC Chairman, Rod Sims, announced that the ACCC would be 'examining why major companies in Australia, including the big four banks, seem to be able to consistently charge high prices', will consider barriers to entry and will consider the way in which prices are presented to customers, noting that the 'exchange rate you google is not the exchange rate you get from the big four banks'.

An issues paper has been released with submissions due by 22 October 2018. Consumers and small business may also respond to a questionnaire instead of making a full submission.

• See inquiry home page.
• See media release.

27 September 2018 - EGR to pay $6m penalty for exclusive dealing

Oakmore (T/A EGR) has been ordered to pay a $6m penalty for engaging in unlawful exclusive dealing. EGR manufactures and supplies building and automotive products and was found to have been knowingly concerned in exclusive dealing with the purpose of substantially lessening competition.

Previously the Federal Court imposed penalties on Palram Australia and Apelite Australia in relaiton to the same matter.

• For details of the conduct involved see ACCC media release, EGR to pay $6m penalty for exclusive dealing.
• See Australian Competition and Consumer Commission v Oakmoore Pty Ltd [2018] FCA 1472

20 September 2018 - ACCC will not oppose Arrow/Apotex merger

The ACCC has announced it will not oppose the merger of generic pharmaceutical companies Arrow and Apotex. Although combined entity will supply approximately half the market for generics to Australian pharmacies, the ACCC concluded that the transaction would not substantially lessen competition.

• ACCC media release, 'ACCC won’t oppose Arrow and Apotex merger' (20 September 2018)
• Arrow - Apotex Merger Register
• Sheshtyn Paola, 'A proposed merger' (Australian Journal of Pharmacy blog, 9 May 2018)

14 September 2018 - ACCC proposes to approve SA council joint waste tenders

The ACCC is 'proposing to grant authorisation to four Adelaide councils to jointly procure certain waste management services.' The ACCC considers that the joint tender process will improve the councils' purchasing power which will encourage more competition from suppliers than if the councils tendered separately.

• ACCC media release, 'ACCC proposes to approve SA councils’ joint waste tenders' (14 September 2018)
• ACCC Authorisation Register (Council Solutions & Ors (ancillary))
• ACCC Authorisation Register (Council Solutions & Ors (processing))

12 September 2018 - ACCC will not oppose proposed acquisition of APA by CK Consortium following undertakings

The ACCC has announced it will not oppose the proposed acquisition of APA Group by the CK Consortium after accepting a court-enforceable undertaking from the CK Consortium to divest 'significant gas assets'.

See ACCC media release, 'ACCC will not oppose acquisition of APA' (12 September 2018).

View APC/CK merger register.

6 September 2018 - ACCC has concerns about Siemens Alstom rail deal

The ACCC has issued a Statement of Issues detailing preliminary concerns about the proposed merger of Siemens AGs Mobility Division with Alstom SA. The deal would result in the combined entity being 'by far the largest supplier of heavy rail signalling in Australia'.

See ACCC media release, 'Concerns on Siemens Alstom rail deal' (6 September 2018).

View Siemens/Alstom merger register.

31 August 2018 - ACCC publishes updated guidelines

The ACCC has published updated guidelines in relation to misuse of market power, concerted practices and non-merger authorisation. These replace Interim Guidelines released after the Harper Reforms passed in October 2017.

• Misuse of market power guidelines
• Concerted practices guidelines
• Non-merger authorisation guidelines

30 August 2018 - ACCC to commence public review of proposed TPG/Vodafone Hutchinson Australia merger

The ACCC has announced that it will commence a public review of the proposed merger between TPG and Vodafone Hutchinson Australia, with an initial timeline of 12 weeks.

See ACCC media release, 'Statement on TPG and Vodafone Hutchison Australia's proposed merger' (20 August 2018).

View TPG/Vodafone merger register.

30 August 2018 - ACCC will not oppose Transurban consortium WestConnex bid (subject to undertaking)

The ACCC has announced that after extensive investigation it has decided not to oppose a Transurban consortium bid to acquire a majority interest in the WestConnex project, following acceptance of a court enforceable undertaking requiring Transurban to publish 'important traffic data that will assist all bidders to compete for future toll road concessions.'

See ACCC media release, 'ACCC will not oppose Transurban consortium WestConnex bid following undertaking'.

See merger register.

See also Rachael Jones, 'ACCC will not oppose Sydney Transport Partners WestConnext bid' (Finance News Network, 30 August 2018) (video), 'WestConnex: Toll road giant Transurban cleared to add $17b Sydney project to its stable' (ABC News, 30 August 2018), Matt O'Sullivan, 'Transurban gets green light from regulator to bid for WestConnex' (SMH, 30 August 2018), Sarah Thompson and Anthony Macdonald, 'Transurban and friends ready to sign WestConnex deal: sources' (AFR, 31 August 2018), Perry Williams and Andre Clennell, 'Transurban gets ACCC's green light to bid for WestConnex' (The Australian, 31 August 2018)

In related news see Matt O'Sullivan, 'ACCC slams states for accepting developer-led toll road proposals' (SMH, 30 August 2018).

29 August 2018 - East Asia competition policy meeting and conference

Plenty happening in Sydney for the next two days with the two-day 2018 East Asia Top Level Officials Meeting on Competition Policy (EATOP) and the East Asia Conference on Competition Law and Policy.

See ACCC media release.

See also 'ACCC hosts a "candid exchange" with its East Asian counterparts' (The Mandarin, 30 August 2018)

23 August 2018 - ACCC will not oppose outdoor advertising deals

The ACCC has announced it will not oppose either:

• the proposed acquisition of APN Outdoor Group Limited by JCDecaux SA or
• the proposed acquisition of Adshel Street Furniture Pty Ltd by oOh!media Limited

In making its announcement the ACCC observced that the transactions considered were 'very different to the proposed tie-up in early 2017 between oOh!media and APN Ooutdoor, where the companies were in direct competition'.

See ACCC media release

See also Max Mason, 'ACCC approves JCDecaux's $1.2b acquisition of APN Outdoor and oOh!media's $570m deal for Adshel' (AFR, 23 August 2018).

23 August 2018 - ACCC considers collective bargaining exemption

The ACCC is seeking feedback in relation to a 'class exemption' to 'allow small businesses, agribusinesses and franchisees to negotiate collectively with their customers or suppliers, including franchisors.'

If granted, it would be the first class exemption granted by the ACCC under new powers it acquired as part of the Harper Reforms in November last year.

See ACCC media release

See ACCC Discussion Paper

Feedback on the draft discussion paper is invited until 21 September.

23 August 2018 - New competition law podcast asks 'Is Big Tech really all that bad?'

The latest Competition Lore podcast episode features Geoffrey Manne arguing that opponents of big tech have failred to identify clear harm to consumer welfare.

Listen to the #6 podcast

21 August 2018 - Electricity market monitoring for ACCC

Following yesterday's announcement the Treasurer directed the ACCC to hold a public inquiry to monitor prices, profits and margins in the supply of electricity in the National Energy Market. The terms of reference state (in part):

'The inquiry will monitor and report on the supply of retail and wholesale electricity in the NEM as the market undergoes a significant period of transition over the period to 2025. This will include consideration of the effects of policy changes in the National Electricity Market, including those resulting from recommendations made by the ACCC from its Retail Electricity Pricing Inquiry report of July 2018.'

The first report is due by 31 March and then every six months until 2025.

See ACCC media release

See ACCC project home page

See terms of reference

20 August 2018 - New powers for the ACCC in relation to energy

The Prime Minister has announced it will implement some of the proposals contained in the ACCC's market inquiry into retail electricity prices and supply, published last month. This includes 'adopting the ACCC's proposal to establish a default market offer; a price expectation that will give consumers a clear picture of how much they should be paying for their electricity.'

The ACCC and the AER will also be provided with $31.9 million in additional funding to monitor the electricity market and pricing and the ACCC will be given 'significant new powers so the ACCC can step in where there has been an abuse or misuse of market power'. The government will also be given power to 'issue directions on operations, functional separation and even ... divestiture' in 'egregious cases of market abuse' (a measure rejected by the ACCC in its final report, which viewed 'divestiture of privately owned assets' as 'an extreme measure to take in any market' and inappropriate in this context (page 89))

Prime Minister of Australia, Press Conference with the Treasurer and the Minister for Environment and Energy, 20 August 2018

See also Ben Potter, 'ACCC baulked at splitting up Big Power too 'extreme' and unnecessary' (AFR, 20 August 2018) and John Durie, 'Malcolm Turnbull’s energy policy a disgrace' (The Australian, 20 August 2018), Gareth Hutchens, 'Business condemns Turnbull's shift on emissions and 'extreme intervention'' (The Guardian, 20 August 2018) and Cole Latimer and Peter Hannam, 'Energy industry in sharp rebuff to forced sell-off policy' (SMH, 20 August 2018).

See also, Peter Ryan, 'Former ACCC boss Allan Fels says energy divestiture powers need to be extended to major banks' (ABC Radio, 21 August 2018).

19 August 2018 - ACCC meets with media as part of Digital Platforms Inquiry

Last week the ACCC held its 'journalists forum' as part of its Digital Platforms Inquiry, chaired by ACCC Chair, Rod Sims.

See, eg, Max Mason, 'ACCC's probe into Facebook and Google critical in bringing issues to the forefront' (AFR, 19 August 2018).

17 August 2018 - ACCC concerns with electronic property settlement market

The AFR reports that ACCC Chairman, Rod Sims, has expressed 'significant competition concerns' with the electronic property settlement market, including PEXA, currently the only provider of online property settlement for vendors and buyers and owned in part, by state governments. AFR reports Mr Sims as saying:

"We've got ourselves into an unfortunate position where you try to introduce competition in a market and you preference one player in the market. It is highly inappropriate and made worse by the fact they are considering selling it [PEXA],"

See Joyce Moullakis, 'ACCC's Rod Sims threatens enforcement action against PEXA, state governments' (AFR, 17 August 2018)

16 August 2018 - Criminal cartel charges laid against CFMMEU and its ACT branch secretary

The ACCC have announced that criminal cartel charges have been laid against Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and its ACT Divisional Branch Secretary, Jason O’Mara.

ACCC Chair, Rod Sims, said the charges allege each attempted to induce 'suppliers of steelfixing services and scaffolding services to reach cartel contracts, arrangements or understandings containing cartel provisions in relation to services provided to builders in the ACT in 2012 to 2013'.

Charges are being prosecuted by the CDPP with first mention scheduled before the ACT Magistrates Court on 27 September 2018.

View ACCC media release

See also David Marin-Guzman, 'CFMMEU charged with criminal cartel behaviour' (AFR, 16 August 2018)

13 August 2018 - Federal Court declares Palram and Ampelite engaged in exclusive dealing

The Federal Court of Australia (Justice Gleeson) has declared (by consent) that Palram Australia and Ampelite Australia engaged in exclusive dealing having the the purpose of substantially lessening competitino. The Court has ordered payment of pecuniary penalties totaling $5.5 million and has ordered implementation of a compliance training program.

The ACCC had alleged cartel conduct and, in the alternative, exclusive dealing. Exclusive dealing was found to have taken place with the result that, by virtue of anti-overlap provisions, the cartel provisions did not apply to that conduct.

View Federal Court Judgment re: Ampelite
ACCC v Oakmoore Pty Ltd [2018] FCA 1169

View Federal Court Judgment re: Palram
ACCC v Oakmoore Pty Ltd (No 2) [2018] FCA 1170

View ACCC media release

Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

13 August 2018 - Federal Court prevents Aurizon from closing Qld intermodal business

The Federal Court (Justice Beach) has ordered that Aurizon continue operating its Qld intermodal business while the ACCC's case against Pacific National and Aurizon is determined.

See ACCC media release.

View Federal Court Judgment.

See also Jenny Wigins, 'Aurizon cancels intermodal sale to Pacific National as it returns to profit' (AFR, 13 August 2018) and John Durie, 'Court puts train wreck on Pacific National’s Aurizon' (The Australian, 14 August 2018).

9 August 2018 - ACCC will not oppose Energizer's proposed acquisition of Spectrum Brands Holdings

The ACCC has announced it will not oppose the proposed acquisition of Spectrum by Energizer; although the ACCC considered the acquisition would lessen competition in the Australian market for consumer batteries, it did not consider that it would do so substantially with the result that it would not breach s 50 of the Act.

View ACCC's Energizer/Spectrum media release

View merger register

9 August 2018 - ACCC will not oppose DSI and Fero group deal

The ACCC has announced it will not opposed the proposed acquisition of the Fero group by DYWIDAG-Systems International Group; both 'manufacture and supply ground support products and provide services to the underground hard rock mining ... industry)'. Although the merged entity would have significant market share, the ACCC considered remaining competitors would provide 'sufficient competitive constraint' post-acquisition.

View ACCC's DSI/Fero media release

8 August 2018 - Another special leave application ...

Yazaki, which recently received the highest fine ever imposed in Australia for a competition law contravention ($46m) is seeking special leave to appeal to the High Court.

That makes three special leave applications this year; the other two involve Prysmian (just denied) and Pfizer. Plenty happening.

8 August 2018 - High Court refuses special leave to appeal cartel decision

The High Court has dismissed a special leave application by Prysmian (with costs)after the Full Federal Court upheld the trial judge's finding that Prysmian had engaged in cartel conduct in relation to the supply of high voltage land cables.

View ACCC media release

View Special Leave decision [2018] HCASL 201: AustLII or JADE
Justices Gordon and Edelman held that the application would 'not enjoy sufficient prospects of success to warrant a grant of special leave to appeal')

View my case page.

8 August 2018 - OECD competition head discusses challenges for competition authorities in the digital world

The latest Competition Lore podcast episode features the Head of the Competition Division of the OECD, Antonio Gomes, and colleagues, discussing the 'the challenges and opportunities for competition authorities grappling with the digital transformation of markets'.

Listen to the #4 podcast

4 August 2018 - ACCC Chairman address to Law Council meeting

ACCC Chairman, Rod Sims, delivered his Annual Address to the Law Council of Australia's Competition and Consumer Committee's Annual General Meeting on Friday.

The speech is available here: Address to the Law Council of Australia Annual General Meeting.

The speech focussed on enforcement (including advocacy of higher penalties), the focus on data, algorithms and digital platforms and merger assessments. Various aspects of the speech attracted media attention, including:

Michael Pelly, 'ACCC putting merger parties under pressure, says Rod Sims' (AFR, 3 August 2018)

John Durie, 'ACCC platform probe to guide Fairfax ruling' (The Australian, 4 August 2018)

John Durie, 'Chairman Sims defends ACCC inquiry power' (The Australian, 5 August 2018)

Michaela Whitbourne, '$10m fines 'not an aberration': ACCC flags crackdown on big companies' (SMH, 3 August 2018)

1 August 2018 - ACCC Chairman, Rod Sims, discusses digital platforms and news media

The latest Competition Lore podcast episode features ACCC Chairman, Rod Sims, discussing the ACCC's digital platforms inquiry.

Listen to the podcast

30 July 2018 - Rob Nicholls on algorithmic price wars

Today's The Conversation features a piece by UNSW's Rob Nicholls, discussing lessons for Australia from the EU's alogithmic price war which resulted in fines fo more than AU$170m on electronics mnaufacturers fro unlawful resale price maintenance.

Rob Nicholls, 'Lessons for Australia in the EU's algorithmic price war that ripped off consumers' (The Conversation, 30 July 2018)

27 July 2018 - ACCC to review proposed Nine-Fairfax merger

The ACCC's merger register now states that it is 'monitoring' this proposed merger and expects to 'commence a public review shortly once we have received a submission and certain information from Nine and Fairfax'.

See public register.

See also Darren Davidson, 'Nine-Fairfax merger: ACCC to examine impact on competition' (The Australian, 27 July 2018).

26 July 2018 - Competition Lore podcast launched

Professor Caron Beaton-Wells today launched her new podcast, Competition Lore, focussing on competition law in the digital economy. The first two episodes are available and feature Professor Maurice Stucke discussing data-opolies and Professor Dick Schmalensee discussing the multi-sided business model used by tech giants.

Visit the website or enlist the aid of two tech giants, Apple or Google, to subscribe to the podcast.

Competition Lore website

Apple podcast

Google podcasts

25 July 2018 - ACCC does not oppose first RPM notification

In 2014 Tooltechnic lodged the first resale price maintenance (RPM) authorisation application with the ACCC. The ACCC granted conditional authorisation for the conduct until 31 December 2018.

Following the introduction of a notification system for RPM as part of the Harper reforms in November 2017, Tooltechnic lodged a notification in February this year (the first since the change to the law).

Today the ACCC announced it would not take further action in relation to the notified RPM conduct, which allows Teooltechnic to impose minimum retail prices for its Festool and Fein power tools. In reaching this decision the ACCC had the advantage of observing the effects of the RPM authorisation and found that 'setting a guaranteed minimum price for these products has given a large network of Festool/Fein dealers the certainty they need to invest in facilities and staff to provide better levels of pre- and post-sales retail services'. Although the ACCC also identified 'clear public detriment' in the elimination of some discounts, that detriment was limited by the 'relatively low market share' of the products.

View ACCC update. View notification register.

24 July 2018 - Taking on big tech

In today's The Conversation, Professor Caron Beaton-Wells discusses where Australia stands in its approach to big tech by comparison with the US and EU.

Caron Beaton-Wells, 'Taking on big tech: where does Australia stand?' (The Conversation, 24 July 2018)

Caron Beaton-Wells, 'Taking on big tech: where does Australia stand?' (Pursuit, 24 July 2018)

Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

19 July 2018 - ACCC alleges Pacific National and Aurizon reached an anti-competitive understanding

The ACCC has instituted proceedings against Pacific National and Aurizen alleging they reached an anti-competitive understanding in relation to Aurizon's multimodal business.

See ACCC, 'ACCC takes action against Pacific National and Aurizon' (19 July 2018)

See also Jenny Wiggins, 'ACCC takes Aurizon, Pacific National to court over intermodal sale' (AFR, 19 July 2018) and John Durie and Samantha Bailey, 'ACCC takes Aurizon, Pacific National to court' (Australian, 19 July 2018).

19 July 2018 - EU: Google fined

It may not be an Australian case but it cannot go unmentioned. Overnight the European Commission fined Google €4.34 'for illegal practices regarding Android mobile devices to strengthen dominance of Google's search engine'. In particular, the press release states, Google:

• has required manufacturers to pre-install the Google Search app and browser app (Chrome), as a condition for licensing Google's app store (the Play Store);
• made payments to certain large manufacturers and mobile network operators on condition that they exclusively pre-installed the Google Search app on their devices; and
• has prevented manufacturers wishing to pre-install Google apps from selling even a single smart mobile device running on alternative versions of Android that were not approved by Google (so-called "Android forks").

View European Commission press release.

Google has announced it will appeal.

#Android has created more choice for everyone around the world, not less. #AndroidWorks https://t.co/Xu3hibsu2k pic.twitter.com/EgudePyR69

— Android (@Android) July 18, 2018

Plenty of media ... Google it!

18 July 2018 - Country Care committal mention postponed

The criminal cartel hearing (Committal Mention) against Country Care has been posponed until August 15 at 10am in Melbourne Magistrates' Court:

Australia's Country Care criminal-cartel hearing postponed to Aug. 15. Magistrate Charlie Rozencwajg not happy about delay, tells defense to get cracking with subpoenas to find out more about prosecutor's planned offer of immunity to two witnesses. #competition @MLexclusive

— James Panichi (@JamesPanichi) July 18, 2018

12 July 2018 - Sims: When and how to intervene in markets

ACCC Chair, Rod Sims, delivered a speech to the Australian Conference of Economists in Canberra today, focussing on the ACCC's approach to market intervention, stating that:

'When we choose to intervene, via enforcement cases, market studies or via general compliance activity, we do so to ensure that markets function correctly. This is important for business, consumer and investor confidence'

See ACCC, 'When and how to intervene in markets' (ACCC Media Release, 12 July 2018)

See Rod Sims, 'When and how to intervene in markets' (Australian Conference of Economists, Canberra, 12 July 2018)

12 July 2018 - ACCC institutes cartel proceedings against Cryosite

The ACCC has instituted proceedings against Cryosite for alleged cartel conduct relating to an asset sale agreement with Cell Care Australia.

The asset sale agreement 'required Cryosite to refer all customer enquiries to Cell Care after the agreement was signed but before the acquisition was completed' and the ACCC alleges that this constituted 'gun jumping' and amounted to 'cartel conduct because it restricted or limited Cryosite’s supply of cord blood and tissue banking services and allocated potential customers from Cryosite to Cell Care'.

See ACCC, 'ACCC institutes proceedings against Cryosite for alleged cartel conduct' (ACCC Media Release, 12 July 2018)

See also Cat Fredenburgh, 'ACCC brings cartel case against Cryosite over "gun jumping"' (Lawyerly, 12 July 2018)

11 July 2018 - ACCC releases energy report

The ACCC has released its report on the retail electricity market, making a suite of recommendations to improve the position of consumers. The recommendations focus on four key areas (Executive summary p1)

1 Boosting competition in generation and retail

2 Lowering costs in networks, environmental schemes and retail

3 Enhancing consumer experiences and outcomes

4 Improving business outcomes

Nine recommendations relating to boosting competition in generation and retail markets are contained in Chapters 4-6 and include:

• preventing acquisitions or other arrangements resulting in a 'market participant owning, or controlling dispatch of, more than 20 per cent of generation capacity in any NEM region or across the NEM as a whole ...'
• proving the AER with 'powers to address behaviour which has the effect of manipulating the proper functioning of the wholesale market, together with the necessary investigation powers and appropriate remedies.'

View report: ACCC, 'Restoring electricity affordability & Australia's competitive advantage' (11 July 2018) (see also Executive Summary)

See media release: ACCC, 'ACCC releases blueprint to reduce electricity prices' (11 July 2018)

See, eg, Michelle Grattan, 'Consumers let down badly by electricity market: ACCC report' (The Conversation, 11 July 2018), Paul Karp, ' Electricity prices: ACCC calls for new powers to fix ‘market manipulation’' (The Guardian, 11 July 2018), Cole Latimer, 'ACCC calls for major reset of energy sector to drive down power bills' (SMH, 11 July 2018), Simon Benson, 'Power rip-offs: ACCC lines up energy giants' (The Australian, 11 July 2018), Andrew Tillett & Mark Ludlow, 'Cap energy mergers to bring down power bills, ACCC tells Malcolm Turnbull' (AFR, 10 July 2018).

6 July 2018 - ACCC bid-rigging case against Cascade Coal dismissed

The Federal Court has dismissed the ACCC's case alleging Cascade Coal and others had engaged in bid rigging in relation to mining exploration licences.

Reasons for judgment have been supressed until July 13. The ACCC has been granted extra time to appeal the ruling - until 3 August.

See, eg, Thomas Jones, Ashna Teneja, 'Australian Federal Court hands down its decision in bid rigging cartel case ACCC v Cascade Coal & Ors' (Bird & Bird, 6 July 2018) and Miklos Bolza, 'ACCC loses coal tender cartel case, but reasons suppressed' (Lawyerly, 6 July 2018)

3 July 2018 - Sims: approach to digital platforms 'one of the defining questions of our age'

In a spech to the International Institute of Communications' Telecommunications and Media Forum in Sydney today, ACCC Chairman, Rod Sims, described the 'question of how we approach the proliferation of digial platofrms, and how they collect and manage our data' as 'one of the defining questions of our age.'

See ACCC media release. Read speech.

28 June 2018 - House Standing Committee on Economics Review of ACCC Annual Report 2017

The House Standing Committee on Economics will hear from the ACCC tomorrow as part of it's Review of the ACCC Annual Report 2017.

The public hearing will take place in Committee Room 2R1, Parliament House, Canberra on 29 June 2018 from 8:30am until 11am. The hearing will also be broadcast live.

27 June 2018 - Air NZ penalised $15m for price fixing

The Federal Court has ordered Air New Zealand to pay $15m for its role in the global air cargo cartel.

The penalty comprises $11.5 million for price fixing in relation to fuel surcharges for cargo from Hong Kong to Australia and $3.5 million for price fixing relating to insurance and security surcharges from Singapore to Australia. Air NZ has also agreed to pay $2m in costs.

So far penalties for $113.5m have been awarded against 14 airlines in relation to the air cargo cartel and judgment has been reserved in the penalty hearing against PT Garuda Indonesia.

See ACCC media release.

25 June 2018 - ACCC seeks special leave to appeal in Pfizer

The ACCC has applied for Special Leave to appeal to the High Court against the Full Federal Court's decision.

The Full Federal Court last month dismissed an appeal against Justice Flick's decision at first instance. Although the ACCC succeeded on the important issue of 'substantial market power' (Justice Flick having held that Pfizer's market power had reduced to something less than substantial in the lead up to the expiry of its patent over atorvastatin), it did not succeed in convincing the Full Federal Court to overturn Justice Flick's findings that Pfizer did not have an anticompetitive purpose. In the ACCC's media release announcing the Special Leave application, ACCC Commissioner Sarah Court said that the 'ACCC is seeking clarity from the High Court on how to assess anti-competitive purpose ...'.

The ACCC also failed to have the Full Federal Court overturn Justice Flick's finding that Pfizer had not supplied pharmacies on a relevant 'condition' as required for purposes of s 47 (exclusive dealing). On this point the ACCC media release notes that the ACCC is also seeking Special Leave on the issue of when a 'requirements contract' will amount to exclusive dealing for the purposes of section 47 of the CCA' (answer should be, certainly in cases like this or s 47 is next to useless ...)

See ACCC, 'ACCC seeks Special Leave to appeal Full Federal Court’s Pfizer judgment' (Media Release, 25 June 2018)

See my case page for details and links to earlier judgments.

See also Christine Caulfield, ACCC takes Pfizer competition case to High Court' (Lawyerly, 25 June 2018) and Charley Connor, 'ACCC asks to appeal Pfizer dismissal again' (GCR, 25 June 2018).

7 June 2018 - Plenty to talk about in Australian Competition Law

There's been plenty happening in competition law in Australia in the last six months. Here's a quick six month recap: It's all happening in Australian Competition Law (6 June 2018)

Deutsche Bank photo by FynnWu [CC0], from pixabay; ANZ photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons; Citigroup photo by Beyond My Ken [GFDL or CC BY-SA 4.0], from Wikimedia Commons.

5 June 2018 - Cartel charges laid

As anticipated, criminal cartel charges have now been laid. The ACCC's press release states:

Citigroup Global Markets Australia Pty Limited (Citigroup), Deutsche Bank Aktiengesellschaft (Deutsche Bank) and Australia and New Zealand Banking Group Ltd (ANZ) have been charged with criminal cartel offences following an investigation by the ACCC.

Criminal charges have also been laid against several senior executives: John McLean, Itay Tuchman and Stephen Roberts of Citigroup; Michael Ormaechea and Michael Richardson formerly of Deutsche Bank; and Rick Moscati of ANZ.

The charges involve alleged cartel arrangements relating to trading in ANZ shares held by Deutsche Bank and Citigroup. ANZ and each of the individuals are alleged to have been knowingly concerned in some or all of the alleged conduct. The cartel conduct is alleged to have taken place following an ANZ institutional share placement in August 2015.

The matter is listed in before the Downing Centre Local Court (Sydney) on 3 July.

4 June 2018 - Unlockd sues Google

Unlockd is suing Google alleging anticompetitive and unconscionable behaviour involving threats to block its app. Justice Moshinsky last week issued a temporary order stopping Google from blocking Unblockd ! (what a sentence!)

For more see Misa Han, 'Unlockd will 'cease to exist' if Google blocks the app' (AFR, 3 June 2018) and Cat Fredenburgh 'Unlockd wins bid to stop Google blocking app in Australia' (Lawyerly, 31 May 2018)

Deutsche Bank photo by FynnWu [CC0], from pixabay; ANZ photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons; Citigroup photo by Beyond My Ken [GFDL or CC BY-SA 4.0], from Wikimedia Commons.

4 June 2018 - Media on expected criminal cartel case

There has been plenty of media since the ACCC announced on Friday that charges were expected to be laid against the ANZ, Deutsche Bank, Citibank, ANZ Group Treasurer Rick Moscati and other individuals.

See, for example:

ABC

• Ian Verrender, 'Crime and misdemeanours: A tale of two law enforcement agencies' (ABC News, 4 June 2018)

AFR and other Fairfax Media

• Patrick Durkin, 'Video conference call at heart of criminal cartel case against ANZ' (AFR, 3 June 2018)
• Sarah Thompson, Anthony Macdonald, Julie-anne Sprague, 'How's the friendship going, ANZ and JPMorgan?' (AFR, 4 June 2018)
• Jonathan Shapiro, 'ANZ criminal cartel case unsettles financial community' (AFR, 3 June 2018)
• Chanticleer (James Thomson), 'Searching for victims in ANZ cartel case' (AFR, 3 June 2018)
• Chanticleer, 'ANZ cartel case could start war between investment bankers' (AFR, 1 June 2018)
• Clancy Yeates, 'ANZ Bank cartel charges expected to be filed this week' (SMH, 3 June 2018)
• Elizabeth Knight, 'The alleged bank criminal cartel that will send industry shockwaves' (SMH, 1 June 2018)

The Australian

• Alan Kohler, 'Banking's Wizard of Oz moment' (The Australian Business Review, 4 June 2018)
• Michael Roddan, 'Big fines possible in ANZ capital-raising case' (The Australian, 4 June 2018)
• Richard Gluyas, 'Why ANZ’s $2.5bn raising took the market by surprise' (The Australian, 4 June 2018)

Other sources

• Glenn Dyer, 'What happens when the masters of the financial universe turn on each other' (Crikey, 4 June 2018)
• Chris Pash, 'Moody’s says the cartel conduct charges against the ANZ Bank are 'significant' and credit negative' (Business Insider Australia, 1 June 2018)
• Paula Duran and Bryon Kaye, 'Australia threatens ANZ, Deutsche and Citi with criminal charges over share issue' (Reuters, 1 June 2018)

Deutsche Bank photo by FynnWu [CC0], from pixabay; ANZ photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons; Citigroup photo by Beyond My Ken [GFDL or CC BY-SA 4.0], from Wikimedia Commons.

1 June 2018 - Criminal cartel charges expected to be laid against Deutsche Bank and Citigroup

The ACCC has announced that Deutsche Bank and Citibank are the two other companies expected to be charged for cartel conduct, along with the ANZ and ANZ Group Treasurer Rick Moscati. The ACCC has also indicated charges are expected to be laid against a number of other individuals.

View ACCC media release re: Deutsche Bank.

View ACCC media release re: Citigroup.

See also Angus Whitley, 'Deutsche Bank, Citigroup, ANZ Face Cartel Charges on Share Sale' (Bloomberg, 1 June 2018), Simon Thomsen, 'Deutsche Bank and Citibank are also facing criminal cartel charges in the ANZ shares case' (Business Insider Australia, 1 June 2018), Reuters Staff, 'Deutsche Bank says it will defend itself against cartel charges in Australia' (Reuters, 1 June 2018), David Simmons, 'More banks facing criminal charges in relation to ANZ cartel investigation' (Business News Australia, 1 June 2018), Richard Gluyas, 'It just gets worse for banks, as ANZ faces criminal cartel charges' (The Australian, 1 June 2018).

On possible immunity:

• Bridget Carter, 'JPMorgan said to have been granted immunity in relation to ANZ cartel conduct case' (The Australian, 1 June 2018)
• Patrick Durkin, James Eyers, Jonathan Shapiro, 'JPMorgan granted immunity in ANZ cartel case' (AFR, 1 June 2018)

Photo by Pear285 [CC BY-SA 4.0], from Wikimedia Commons.

1 June 2018 - Criminal charges expected to be laid against ANZ

The ACCC has announced that 'that criminal cartel charges are expected to be laid by the Commonwealth Director of Public Prosecutions (CDPP) against ANZ, ANZ Group Treasurer Rick Moscati, two other companies and a number of other individuals.' 

The expected charges follow an investigation by the ACCC. They will involve alleged cartel arrangements relating to trading in ANZ shares.

The ACCC's media release follows an announcement by the ANZ to ASX in which it states that it was advised yesterday that the CDPP intends to commence cartel proceedings against the bank.

View ACCC media release.

See ANZ announcement to ASX.

See also James Eyers, 'ANZ hit with criminal cartel charges' (AFR, 1 June 2018), 'ANZ facing legal action over alleged cartel conduct' (The Australian, 1 June 2018), Clancy Yeates, 'ANZ Bank facing cartel prosecution' (SMH, 1 June 2018) and Stuart Condie, 'ANZ bank facing criminal cartel charges over $2.5 billion share placement' (Perth Now, 1 June 2018).

25 May 2018 - ACCC loses Pfizer appeal

After almost two and a half years, the Full Court of the Federal Court has dismissed the ACCC's appeal against the trial judgment in relation to Pfizer. The ACCC had alleged misuse of market power and exclusive dealing. The ACCC is 'carefully considering the judgment'.

The ACCC originally instituted proceedings in February 2014 and decided on 25 February 2015. The appeal was heard in November 2015.

View ACCC media release.

The reasons for decision (approx 200 pages) are now available here.

View my case page.

See also Christine Caulfield, 'ACCC loses appeal in Pfizer misuse of market power case' (Lawyerly, 25 May 2018), Misa Han, 'ACCC loses competition law case against Pfizer again' (AFR, 25 May 2018) and Reuters, 'ACCC loses appeal against Pfizer over Lipitor sales' (SMH, 25 May 2018).

24 May 2018 - ACCC re-authorises Tyre Stewardship Scheme

The ACCC has authorised Tyre Stewardship Australia to continue its Tyre Stewardship Scheme. The scheme is 'designed to increase the recycling of tyres and use of products made from recycled tyres'.

The authorisation follows a draft determination proposing to re-authorise in April this year.

View ACCC media release.

View authorisation register.

17 May 2018 - ACCC issues statement of issues in relation to proposed Transurban/WestConnex deal

The ACCC today issued a statement of issues setting our preliminary concerns about Sydney Transport Partners' (consortium led by Transurban) proposed acquisition of a majority interest in the WestConnex project.

View ACCC media release.

View merger register.

See also Mark Ludlow, 'ACCC raises red flag on Transurban's bid for WestConnex' (AFR, 17 May 2018), Matt O'Sullivan, 'ACCC fears Transurban will gain too much advantage from WestConnex buy' (SMH, 17 May 2018), Chanticleer, 'ACCC draws line in the road for Transburban' (AFR, 17 May 2018), Samantha Bailey, 'ACCC flags competition concerns over Transurban taking stake in WestConnex' (17 May 2018).

16 May 2018 - Highest cartel penalty in Australian history imposed on Yazaki: $46m

The Full Federal Court today handed down its decision in the ACCC's appeal against Yazaki's $9.5m penalty for cartel conduct. The Full Federal Court allowed the appeal in part and increased penalties to $46m, the highest ever imposed in Australia for cartel conduct (or indeed for any contravention of the Competition and Consumer Act).

Part of the explanation for the increased penalty was that the Full Court found that the maximum penalty for each contravention was $18m, not $10m, based on 'the proper construction of s 76(5)' of the Act (defining annual turnover for purposes of the calculation of penalty) and because the Full Court held that the penalties should not be limited to two 'courses of conduct' but instead should be imposed on five separate contraventions.

The judgment can be found here, accompanied by a summary judgment.

Plenty of media: Misa Han, 'Japanese car parts supplier Yazaki gets record fine for cartel' (AFR, 16 May 2018), Nick Toscano, ''Huge step': Australian companies on notice after massive fine' (SMH, 16 May 2018). See also ACCC media release.

More details to follow on my case page.

11 May 2018 - ACCC releases new batch of submissions to digital platforms inquiry

The ACCC has published a new batch of submissions in response to the Issues Paper for the Digital Platforms Inquiry.

The new submissions are largely from individuals (David Nebe, Karl Goiser, Margaret Simons (A/Prof, School of Media, FIlm and Journalism, Monash University), Simon M, Teresa K and Tony Healy ), with a revised submission from the SBS and a submission from MediaScope also published today:

Consumer Questionnarire Responses have also been published

New submissions can be viewed here.

11 May 2018 - Capped prices for dental services authorised

The ACCC has authorised HCF to set capped prices for dental services - this follows a draft authorisation in March.

View ACCC media release. View

10 May 2018 - Conditional approval for Port of Brisbane, Carnival

The ACCC has granted conditional authorisation for an agreement between Port of Brisbane and Carnival to develop a $158m cruise terminal. This follows a draft determination in March. ACCC, Roger Featherston:

'While we understand the important benefits a dedicated cruise ship terminal would bring to Brisbane, we have concerns that parts of the agreement between the Port of Brisbane and Carnival would limit consumer choice and entrench Carnival as the dominant cruise operator in Brisbane for 15 years. That’s why we have approved this agreement with two conditions'

The first condition restricts the days Carnival can book the terminal (no more than two of three 'weekend' days) and the second is that ' if the terminal is expanded in the future to provide a second berth, Carnival cannot be given first right of refusal for an agreement which would give it first choice of days at that berth.'

View ACCC media release. View authorisation register.

10 May 2018 - ACCC new consumer data right

The ACCC has welcomed the 'introduction of a general data right for all consumers and $20 million in the Federal Budget over the next four years to oversee its implementation', which Chairman Rod Sims labeled 'fundamental competition and consumer reform'.

The first sector designated is the banking sector, with the consumer data right coming in response to the Open Banking Review.

The ACCC is establishing a dedicated 'Access to Data Unit' to undertake these new functions and will work closely with the Office of the Australian Information Commissioner, Data Standards Body and industry in relation to implementation of the consumer data right.

See ACCC media release (9 May) and Australian Government, 'Consumer Data Right' (Treasury, 9 May 2018)

See also: Joseph Brookes, 'New Consumer Data Right Funding Set To Fuel Open Banking' (Which-50, 10 May 2018), Nadia Cameron, 'Budget 2018: Government set to shake-up consumer data rights with $44.6m investment' (CMO, 9 May 2018), Supratim Adhikari, 'Banks welcome phased launch of open banking' (The Australian, 10 May 2018), Dorinne Reichert, 'Budget 2018: Funding Australia's data-sharing framework' (ZDNet, 8 May 2018), Denham Sadler, 'Gov't backs open banking framework' (InnovationAus.com, 10 May 2018), Patrick Gunning, Hannah Glass and Smriti Arora, 'Consumer Data Right to be introduced in Australia in 2018' (KWM, 17 November 2017)

9 May 2018 - ACCC budget boost

The ACCC's funding for 2018-2019 is $261 million, up from $243 million for 2017-2018, incluidng increased staff levels (from 868-909). Performance targets for number of competition enforcement interventions reduced from 8 to 6 (page 86 Budget Portfolio Statement) and target of mergers finalised by pre-assessment remains at 80%.

See ACCC Budget Portfolio statement.

See also Budget Paper No 4 on Agency Resourceing 2018-19.

8 May 2018 - Fisse on cartels

On Saturday Christopher Hodgekiss hosted his annual Competition Law Conference in Sydney, with its usual high caliber line-up.

Brent Fisse has now published his (slightly updated) paper from the conference - 'Australian Cartel Law: Biopsies'. The extensive paper discusses the state of Australian cartel law post-Harper. Fisse claims that post-Harper 'some patients remain in the wards' and that some 'detailed treatment plans may be called for'. The paper includes discussion of the concepts of 'arrangement an understanding', the ongoing issue of 'purpose' in s 45AD, cartel exemptions and some aspects of liability and sanctions (all discussed in this paper).

The associated PowerPoint as well as many more publications by Brent can be found on his website.

3 May 2018 - ACCC will not oppose Seven and Nine's proposed acquisition of Network Ten's stake in TX Australia

The ACCC has announced it will not oppose Seven and Nine acquiring Ten's stake in TX Australia (TXA), which provides transmission services in major capital cities.

ACCC Chairman, Rod Sims, said of the decision:

The ACCC has carefully analysed the potential of this proposed acquisition to disrupt Ten’s access to transmission services and affect competition for television content or advertising.

After consulting industry players, we consider that Broadcast Australia, which currently provides transmission services to the ABC and SBS, is a viable alternative provider of transmission services for Ten. We therefore consider it unlikely that the acquisition would substantially lessen competition in the content or advertising markets.

View media release.

View merger register.

For related proceedings, see Max Mason, 'Court rules Network Ten sell TX Australia stake for $1' (AFR, 1 May 2018)

3 May 2018 - ACCC publishes Digital Inquiry submissions

The ACCC has now published public versions of submissions made in response to the Issues Paper released as part of the Digital Platforms Inquiry - 57 in total.

View media release.

Submissions can be viewed here.

Plenty of media emerging. See, eg, Darren Davidson, 'Industry response to digital inquiry' (The Australian, 3 May 2018), Max Mason, 'Google, Facebook distorting advertising markets, ACCC told' (AFR, 3 May 2018), Jennifer Duke, 'News Corp slams digital giants for 'rapid spread of misinformation'' (SMH, 3 May 2018).

2 May 2018 - ACCC to publish Digital Inquiry submissions tomorrow

The ACCC will publish submissions made in response to the Issues Paper for the Digital Platforms Inquiry tomorrow.

See, eg, Darren Davidson, 'ACCC to reveal submissions into Google and Facebook' (The Australian, 2 May 2018).

30 April 2018 - ACCC releases final dairy report

The ACCC has released the final report arising from the dairy inquiry, including recommendations for a mandatory code of conduct to address problems associated with the imbalance in bargaining power between dairy farmers and processors.

ACCC Commissioner, Mick Keogh, also noted that the report also found 'no direct relationship between retail private label milk prices and farmgate prices' and that increasing supermarket pricing of private label milk would be unlikely to increase farmgate prices 'unless farmers have improved bargaining power in their negotiations with processors'.

View media release.

View Final Report on dairy inquiry home page.

View 'Dairy inquiry - farmers' guide to the final report'.

27 April 2018 - ACCC proposes to re-authorise Tyre Stewardship Scheme

The ACCC has announced that it is 'proposing to grant authorisation for Tyre Stewardship Australia (TSA) to continue its revised Tyre Stewardship Scheme for a further six years.'

The scheme aims to increase the recycling of tyres and the use of recycled tyre products.

ACCC Commissioner, Roger Featherston, noted that the ACCC believes:

... the scheme is likely to result in a public benefit by reducing the number of tyres disposed of in landfill, illegally dumped, or exported overseas to be burned unsustainably for fuel ...'

View media release.

View authorisation register.

26 April 2018 - ACCC does not oppose proposed acquisition of Tox by Cleanaway

The ACCC has announced that it will not oppose the proposed acquisition of Tox Free Solutions Ltd by Cleanaway Waste Management Limited. While noting it was a 'complex matter' with a mix of views on competitive impact, the ACCC concluded that the merger was unlikely to substantially lessen competition.

According to ACCC Commissioner Roger Featherston:

Although there may be a lessening of competition in some waste streams, such as hazardous waste collection and processing, and used lubricating oil collection, we considered that, in this case, the proposed acquisition is unlikely to meet the threshold of a substantial lessening of competition ...

We concluded that the threat of customers switching to competitors would constrain Cleanaway from increasing prices or decreasing service levels to a significant extent in any waste stream or geographic area.

View media release.

View merger register.

23 April 2018 - Digital Platforms Inquiry submissions filtering out

There's plenty of media today relating to the ACCC's Digital Platforms Inquiry following the release of a number of submissions (not yet on the ACCC Inquiry page).

Public submissions include:

Google
(related blog: Hason Pellegrino, 'Consumers will determine the future of news' (23 April 2018))

Free TV
(related media release: 'Free TV calls for ACCC oversight of Facebook and Google (20 April 2018))

MEAA (Media, Entertainment and Arts Alliance)
(related media release: MEAA submission to the ACCC inquiry into digital platforms (10 April 2018))

No doubt there are more I've missed; I will add links to submissions as I find them on my Digital Platforms Inquiry page.

For media see, for example:

Jennifer Duke and John McDuling, 'Google defends role in media amid ACCC probe' (SMH, 23 April 2018)

Darren Davidson, 'Seven takes battle to tech giants' (The Australian, 23 April 2018)

Arvind Hickman, 'TV industry calls for mandatory third-party measurement of Facebook and Google' (AdNews, 23 April 2018)

Amanda Meade, 'Google tells Australian regulator it is not contributing to 'the death of journalism'' (The Guardian, 23 April 2018)

Paul Wallbank, 'Facebook and FreeTV Australia draw battle lines over ACCC digital platforms inquiry' (Mumbrella, 23 April 2018)

Tony Boyd, 'Facebook parries ad market "dominance" claims' (AFR, 22 April 2018)

John McDuling, 'The disconnect beneath Facebook's month from hell' (SHM, 22 April 2018)

Amanda Meade, 'Facebook and Google must be held to account, TV networks say' (The Guardian, 21 April 2018)

23 April 2018 - Sims on penalties

ACCC Chairman, Rod Sims, is talking penalties again in the context of investigating competition in the financial system, arguing for penalties in hundreds of millions of dollars.

See Richard Gluyas, 'ACCC plan for fines worth hundreds of millions of dollars' (The Australian, 23 April 2018).

See also 'Australia needs tougher penalties for banks, financial institutions, ACCC says' (RN Breakfast, ABC, 23 April 2018) (includes audio download) and AAP, 'ACCC boss backs massive fines for banks' (9 News, 23 April 2018).

19 April 2018 - New ACCC Deputy Chair and commissioner reappointments

Treasurer Scott Morrison has announced the appointment of Mick Keogh OAM as Deputy Chair of the ACCC for a five year period beginning at the end of May. Commissioner Keogh, who was appointed the ACCC's Agriculture Commissioner in 2016, will oversee the ACCC's small business work in addition to agricultural work.

Cristina Cifuentes and Sarah Court have been re-appointed for a further five years.

See ACCC media release and ACCC details of Chair & Commissioners.

See Scott Morrison press release announcing appointments.

Images (c) Commonwealth of Australia. Reproduced pursuant to CC BY 3.0 AU licence

19 April 2018 - ACCC will not oppose Zodiac/Fluidra deal

The ACCC has announced it will not oppose the proposed merger of Piscine Luxembourg Holdings (Zodiac) and Fluidra SA, both global companies supplying residential swimming pool equipment.

The ACCC found that, although the deal combines would give the combined company significant market share in relation to some products in Australia, remaining competitors would provide sufficient post-merger competitive constraint.

See media release.

See merger register.

See Fluidra + Zodiac's 2017 You Tube announcement of merger.

6 April 2018 - New podcast on civil penalties for cartel conduct in Australia

A new podcast has been published featuring Prof Caron Beaton-Wells (Director, Competition Law and Economics Network, Melbourne Law School) and authors of the recent OECD Report on Pecuniary Penalties for Competition Law Infringements in Australia, Sean Ennis and Pedro Caro de Sousa. The podcast includes discussion of the importance of pecuniary penalties for cartel conduct and consideration of how Australia's penalty levels and processes compare with other comparable OECD jurisdictions (not well ...). The podcast runs for just under 30 minutes.

View embedded podcast or view podcast page which includes a description of the podcast and links to related material.

5 April 2018 - Another shipping company pleads guilty to criminal cartel conduct

Kawasaki Kisen Kaisha (K-line), a Japan-based shipping company, today entered a guilty plea in relation to criminal cartel conduct.

This is the second guilty plea in relation to criminal cartel conduct, with Nippon Yusen Kabushiki Kaisha (NYK) pleading guilty in 2016 and receiving a $25m fine in 2017.

A sentencing hearing is scheduled for 15-16 November.

See ACCC media release.

See my case page for further details.

Image source: By Jesus de Blas (Russia) [CC BY-SA 2.0], via Wikimedia Commons

5 April 2018 - Synchronised swimming versus competition in banking

Someone's having fun with metaphors at the ACCC. In a speech to the AFR Banking and Weath Summit today titled 'Synchronised swimming versus competition in banking', ACCC Chairman, Rod Sims, spoke about the findings of the ACCC's interim report relating to the Residential Mortgage Price Inquiry and data as a driver of competition and stability in the abnking sector.

See Sims, 'Synchronised swimming versus competition in banking' (Speech to AFR Banking and Wealth Summit, 5 April 2018).

See also 'The synchronised swimming of the big banks is not vigorous competition' (AFR, 5 April 2018), Mark Bristow, 'ACCC slams banks for ‘synchronised swimming’ on mortgage rates' (RateCity, 6 April 2018) and Cat Fredenburgh, 'ACCC's Sims compares big four banks to synchronised swimming' (Lawyerly, 5 April 2018)

5 April 2018 - ACCC releases final report on communications market

The ACCC has published the final report of its communications sector market study.

The report includes 28 recommentations and actions relating to competition and consumer issues.

See ACCC media release.

See report page.

4 April 2018 - Flight Centre ordered to pay $12.5m in penalties for attempted price fixing

The Full Federal Court has ordered Flight Centre to pay penalties of $12.5 m for attempting to induce international airlines to enter price fixing agreements.

When the matter first went to trial a penalty of $11m was imposed. The matter was appealed on issues of liability and penalty. The liability issue was appealed through the the High Court which delivered judgment in favour of the ACCC in December 2016. In May 2017 the Full Federal Court heard the penalty appeal and cross appeal. Almost a year later the penalty order was handed down.

See ACCC media release.

See case page.

4 April 2018 - ACCC gives green light to Saputo's proposed acquisition of Murray Goulburn

The ACCC will not oppose Saputo's proposed acquisition of Murray Goulburn's assets 'after accepting a court enforcemable undertaking from Saputo to divest Murray Goulburn's Koroit plant'.

See ACCC media release.

See Saputo-MG merger register.

See also Samantha Bailey, 'ACCC says Saputo promise to sell Koroit plant clears Murray Goulburn takeover' (The Australian, 4 April 2018), Warwick Long, 'ACCC approves Murray Goulburn sale to Saputo minus the Koroit factory' (ABC, 4 April 2018) and 'ACCC won't block Saputo, but Koroit must go' (The Australian Dairyfarmer, 4 April 2018).

30 March 2018 - Studying competition law online

Born in the Amazon, working in East-Timor and studying at the University of Melbourne - George Da Silva discusses his expereinces as an online student in Melbourne Law School's Global Competition and Consumer Law Program.

29 March 2018 - ACCC will not oppose proposed acquisition ofo Donhad by Moly-Cop

The ACCC announced this morning that it would not oppose Moly-Cop’s proposed acquisition of Donhad. Although Donhad and Moly-Cop are the only two domestic manufacturers of forged steel grinding media, the ACCC found that, on balance, the proposed acquisition would be unlikely to substantially lessen competition in the supply of grinding media in Australia, in part because imports now represent 40% of total steel grinding media sold in Australia.

See ACCC, 'ACCC will not oppose Moly-Cop’s proposed acquisition of Donhad' (Media Release, 29 March 2018)

See Merger Register: Moly-Cop - proposed acquisition of Donhad

29 March 2018 - ACCC allows joint marketing of NT gas

The ACCC has authorised joint marketing agreements for gas between Central Petroleum and Macquarie Mereenie which will, according to ACCC Chairman, Rod Sims, allow 'further conventional gas in the Mereenie field to be developed sooner than it otherwise would'.

See ACCC media release: ACCC allows joint marketing of NT gas

See Authorisation register: Central and Macquarie Mereenie

29 March 2018 - ACCC issues Statement of Issues in relation to MYOB's proposed acquisition of Reckon assets

The ACCC has issued a Statement of Issues outlining concerns with MYOB's proposed acquisition of Reckon's Accountants Group.

ACCC Commissioner, Roger Featherston, said:

'If MYOB acquired Reckon’s Accountants Group, it would likely be the only supplier of practice software suitable for medium to large accounting firms ...

'If MYOB has a monopoly on this software, it would substantially lessen competition. We think there’s a significant risk for customers that prices will increase and service levels will decrease.'

See ACCC, 'ACCC concerned with MYOB acquisition of Reckon assets' (Media Release, 29 March 2018)

See Merger Register: MYOB Group Limited - proposed acquisition of Reckon Limited's Practice Management Group

28 March 2018 - ACCC postpones decision on Saputo's proposed acquisition of Murray Goulburn's operating assets

The ACCC has postponed its final decision on Saputo's proposed acquisition ot acquire Murray Goulburn's operating assets to allow parties to consider feedback received from market participants on the undertaking proposed by Saputo. The new proposed announcement date is the morning of 4 April 2018.

View merger register: Saputo Dairy Australia Pty Ltd proposes to acquire Murray Goulburn's operating assets.

See also: John Durie, 'ACCC delays decision over Saputo plan to buy Murray Goulburn' (The Australian, 28 March 2018), Andrew Marshall, 'ACCC still mulling dairy feedback on Saputo's MG takeover bid' (North Queensland Register, 28 March 2018), 'ACCC told to butt out of Saputo-MG deal' (The Australian Dairyfarmer, 29 March 2018)

28 March 2018 - Penalties for competition law infringements in Australia

Two of the authors of the OECD, Pecuniary Penalties for Competition Law Infringements in Australia (26 March 2018) report, Sean Ennis and Pedro Carodesousa, presented their work at the Melbourne Law School's Competition Law and Economics Network discussion group today March.

Details, including presentation slides and related papers can be found on the CLEN website: Civil Penalties for Cartel Conduct: An OECD Review of the Australian Regime.

A copy of the report and related presentations made at Monday's OECD Workshop can be found on the Workshop home page. This includes the Keynote presentation by Frédéric Jenny, presentations by John Connor and Caron Beaton-Wells and a paper by Sir Marcus Smith.

See also the ACCC's media release in response to the release of the report and a speech by the ACCC Chairman:

Rod Sims, 'Release of the OECD's Penalties for Competition Law Infringements in Australia report' (Workshop on Australian Pecuniary Penalties for Competition Law Infringements, Sydney, 26 March 2018)

27 March 2018 - 'Cartels, Optimal Enforcement and Theories in Competition Law' Symposium

A wonderful symposium was held today in memory of the research of Laura Guttuso.

The focus of the symposium was cartels and, particularly, effective cartel enforcement.

Congratulations to Dr Barbora Jedlickova and her colleagues at the TC Beirne School of Law for organising the event.

Abstracts of the papers can be found here (abstracts) with full papers to be published in a special edition of the University of Queensland Law Journal later this year.

26 March 2018 - OECD releases pecuniary penalties report

The OECD today released its report, Pecuniary Penalties for Competition Law Infringements in Australia. The report, prepared by Pedro Caro de Sousa, Sean Ennis and Semin Park, of the OECD's Competition Division, compares pecuniary sanctions for competition law infringements in Australia to that of other major OECD jurisdictions.

The report concludes that 'Australia is an outlier' in relation to 'how low the pecuniary penalties it imposes are by comparison to all other systems'. Several possible explanations for this are discussed. In particular, the report details the different approach Australia takes to determining pecuniary penalties when compared with other jurisdictions. It recommends Australia consider action to 'ensure pecuniary penalties better deter anticompetitive conduct' (p 8)

See OECD, Pecuniary Penalties for Competition Law Infringements in Australia (26 March 2018)

The report is being presented at a closed OECD workshop in Sydney today: Workshop on Australian Pecuniary Penalties for Competition Law Infringements

Two of the authors of the report, Sean Ennis and Pedro Carodesousa, will be presenting at the Melbourne Law School's Competition Law and Economics Network discussion group on 28 March. This will be followed by commentary from Professor Caron Beaton-Wells and me. Register here!

See also:

• Caron Beaton-Wells and Julie Clarke, 'Why are corporate penalties for cartels so low in Australia?' (Pursuit, 26 March 2018) (see also associated paper: Beaton-Wells and Clarke, 'Corporate Financial Penalties for Cartel Conduct in Australia: A Critique' (Working Paper, 26 March 2018, available at SSRN)
• John Durie, 'OECD supports higher penalties for breaches' (The Australian, 26 March 2018)
• Naaman Zhou, 'ACCC says corporate fines too low and it will pursue penalties in the 'hundreds of millions'' (The Guardian, 26 March 2018)
• Matthew Dunkely, 'Companies face tougher penalties for rip offs and rorts' (SMH, 26 March 2018)

23 March 2018 - ACCC re-authorises Qantas/Emirates alliance

The ACCC has granted re-authorisation to the Qantas/Emirates alliance for five years, subject to a condition in relation to the Sydney/Christchurch route.

The re-authorisation follows a draft decision to re-authorise in February.

See authorisation register for details.

See also

• ACCC, 'ACCC re-authorises alliance between Qantas and Emirates' (23 March 2018)
• Charles Pauka, 'Love not lost between Qantas and Emirates, and the ACCC likes them, too' (Transport and Logistics News, 23 March 2018)
• 'Qantas and Emirates Renew their Vows' (Travel Weekly, 23 March 2018).

20 March 2018 - Kemp and Nicholls to lead new 'Data as a Source of Market Power' research stream

On 14 March UNSW has launched 'The Allens Hub for Technology, Law & Innovation'. The hub includes ten research streams.

Dr Katharine Kemp and Dr Rod Nicholls will lead the research stream 'Data as a source of market power', focusing on the research question 'can control of data create market power?' and the issues that flow from a 'yes' response.

Delighted to say @Rob2037 & I will be leading the “Data as a Source of Market Power” research for @UNSWAllensHub launched last wk. Look fwd to sharing & debating these issues! https://t.co/zXjZIeIRhx @CompetitionProf @competitionlaw @__laurensolomon @dvararesearch @Katherine_M_T pic.twitter.com/Du61s13IcF

— Dr Katharine Kemp (@Katharine_Kemp) March 20, 2018

15 March 2018 - Country Care cartel case to be heard in Melbourne

The Mildura Magistrate's Court has ordered that the committal hearing in relation to two individuals charged with cartel conduct should take place in the Melbourne Magistrates' Court.

The AFR reports that County Care managing director Robert Hogan and former busienss development manager, Cameron Harrison, are each facing dozens of charges relating to cartel conduct, including in the form of bid rigging and price fixing.

A committal mention is listed for 6 June.

See

• David Marin-Guzman, 'ACCC criminal case against Country Care Group alleges nationwide cartel' (AFR, 15 March 2018)
• Christopher Testa, 'Country Care cartel case moved to Melbourne' (Sunraysia Daily, 14 March 2018)

15 March 2018 - Independent Cinemas Australia authorised to collectively bargain with film distributors

The ACCC has authorised Independent Cinemas Australia and its members to 'share information and collectively bargain with film distributors on the terms and conditions of film licensing agreements'.

View ACCC Press Release.

View Authorisation register.

Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

15 March 2018 - ACCC issues statement of issues outlining concerns in relation to Pacific Nationals' proposed acquisitions of Aurizon's intermodal assets

The ACCC has issued a Statement of Issues raising strong concerns about Pacific National's proposed acquisitions of Aurizon's 'Queensland intermodal freight haulage business and intermodal rail terminal at Acacia Ridge in Brisbane'.

ACCC Chairman, Rod Sims, stated:

'Aurizon’s decision to sell its Queensland intermodal operations and the Acacia Ridge Terminal to its closest competitor, while shutting down its remaining intermodal business, will fundamentally change this market. We are concerned about the impact on competition in the freight industry.'

'We are concerned the proposed acquisitions would lead to increased prices and reduced service for freight hauled between Brisbane and Far North Queensland'

Pacific National has offered a section 87B behavioural undertaking, but the ACCC's preliminary review is that it will not resolve their concerns.

The ACCC is inviting further submissions in response to the Statement of Issues. Submissions are due by 3 April with a final decision expected on 24 May 2018.

View ACCC media release. View Merger Register.

15 March 2018 - ACCC releases residential mortgage price inquiry interim report

The ACCC commenced a residential mortgage products price inquiry in 2017 and today it released its interim report. The ACCC's media release notes that the interim report 'reveals signs of less-than-vigorous price competition, especially between the big four banks'. The preliminary findings of the inquiry are discussed under the following headings:

• Opaque discretionary discounts make it difficult for borrowers to compare products
• Basic (or ‘no frills’) residential mortgages are not always the cheapest after discounts
• New borrowers pay significantly lower interest rates on average than existing borrowers
• Signs of a lack of vigorous price competition
• The public’s reaction has been a constraint on pricing
• Public messaging on rate changes do not always tell the full story
• Prudential benchmarks have led to increases in some interest rates
• The Major Bank Levy

For more detail:

• Read the ACCC media release
• View the interim report
• Visit inquiry home page

13 March 2018 - Full Federal Court dismisses Prysmian cartel appeal

The Full Federal Court today dismissed an appeal by Prysmian Cavi E Sistemi SRL against a 2016 ruling that it had engaged in cartel conduct in relation to the supply of high voltage land cables.

The ACCC has welcomed the Full Court's decision.

See ACCC, 'Full Federal Court dismisses cartel appeal' (13 March 2018)

12 March 2018 - Vale Professor Bob Baxt AO

I am saddened to learn of the passing of former Chairman of the Trade Practices Commission (now ACCC), Professor Bob Baxt AO.

Current ACCC Chairman, Rod Sims, described Professor Baxt as a 'true champion of competition law in Australia' who 'leaves a lasting legacy'. Professor Baxt's contribution to trade practices law and policy was recognised through the award of a Centenary Medal in 2001 'for service to consumer protection as chairman of the Trade Practices Commission'. In 2003 he was appointed an Officer, Order of Australia for 'service to the law, particularly as a leading spokesperson in the areas of trade practice, competition, taxation and corporate law, and in the field of legal education'.

In addition to his role as Chairman of the (then) Trade Practices Commission, Professor Baxt was Dean of Law at Monash University in the 1980s, partner at Allens Arthur Robinson and later Herbert Smith Freehills, Professorial Fellow at the Melbourne Law School and Chair of the Advisory Board for the competition and consumer law specialisation in the Melbourne Law Masters program. Since 2011 an annual 'Baxt Lecture' has been held in recognition of the substantial contribution made by Professor Baxt to the development of competition law in Australia.

Professor Baxt was also a founding member of the Business Law Section of the Law Council of Australia and long time member of the the competition and consumer committee (among others). In 2017 the Business Law Section of the Law Council Australia offered, for the first time, the 'Baxt Prize' for an outstanding research paper on the topic of 'Human Rights and Business Law'. Professor Baxt was also Chairman of the Law Committee of the Australian Institute of Company Directors.

Professor Baxt published widely and was the founder and general editor of the Australian Business Law Review and the Company and Securities Law Journal.

My condolences to friends and family of Professor Baxt.

8 March 2018 - ACCC will not challenge Qube MCS deal

The ACCC has announced it will not take further action in relation to Qube's completed acquisition of Maritime Container Services.

View ACCC press release. View merger register.

See also Samanntha Bailey 'ACCC clears Qube’s already-completed Maritime Container Services buy' (The Australian, 8 March 2018) and Jenny Wiggins, 'Qube can keep MCS container parks acquisition: ACCC' (AFR, 8 March 2018).

8 March 2018 - Accor-Mantra deal not opposed by ACCC

The ACCC has announced it will not oppose the proposed acquisition of Mantra Group by AAPC Ltd (Accor).

ACCC Chairman, Rod Sims, said that the 'combined Accor-Mantra will still compete with other international and national hotel chains, as well as many independent hotels and accommodation providers'

View ACCC press release. View merger register.

6 March 2018 - Fisse on mergers

Brent Fisse has published presentations he recently gave at an APEC Workshop on merger control. The first offers a critique of Australia's informal merger review process and the second relates to the Metcash saga. They can be found on Brent's website, or directly from the links below:

Merger Control in Australia: Informal and Formal Review
Brent Fisse (APEC Workshop on Merger Control Regimes, Port Moresby, 1 March 2018)

Merger Control in Australia: ACCC v Metcash - SLC v Legalism
Brent Fisse (APEC Workshop on Merger Control Regimes, Port Moresby, 2 March 2018)

6 March 2018 - NBN Migration Plan variation approved to allow for Fibre to the Curb

The ACCC will allow Telstra to vary its NBN Migration Plan 'to enable fibre to the curb (FTTC) as a new access technology for NBN connections. Changes to the original proposed variation are designed to ensure that FTTC services are operating before existing services are disconnected.

View ACCC media release. View Telstra'a Migration Plan and variation.

[NB: Finding it hard to get excited about anything NBN when planned rollout for my area is for fixed wireless to be available between July-December 2019 ... seriously!]

5 March 2018 - ACCC commences inquiry into telco transmission

The ACCC has commenced a public inquiry to 'determine whether declaration of the Domestic Transmission Capacity Service (DTCS) remains appropriate in light of changes to the market, including the growth of commercial alternatives available to service providers, new NBN products for business customers and industry consolidation.'

View ACCC media release

View Service Declaration Inquiry 2018-2019

5 March 2018 - Draft authorisation for dental services pricing

The ACCC is proposing to authorise health insurer HCF and participating dentists to agree on the maximum price that they will charge members for some services. As HCF is planning to establish its own clinics, authorisation has been sought to avoid contravening the cartel laws.

The ACCC does not consider that the agreement is likely to have any significant impact on competition, noting that dentists are free to choose whether or not to participate and HCF members are free to choose a non-HCF member for their dental services. The draft ruling states that the proposed conduct 'is likely to lower the cost and increase the use of preventative dental services' and that it is 'likely to result in a net public benefit'. It is proposed that authorisation be granted for ten years.

View ACCC media release

View Authorisation register: Hospitals Contribution Fund of Australia Limited

2 March 2018 - ACCC authorises maintenance coordination activities at LNG facilities in WA and NT

The ACCC authorised Chevron, INPEX, Shell and Woodside to 'coordinate maintenance activities at their LNG facilities in Western Australia and Northern Territory.'

ACCC Chairman, Rod Sims, said: 'LNG producers can now schedule maintenance together without risking breaching competition laws, reducing concurrent work at their facilities. This will improve efficiency and maximise LNG production'

• View ACCC media release.
• View authorisation register.

See also Cole Latimer, 'ACCC approves gas pricing tie-ups to help ease energy crisis' (SMH, 2 March 2018)

2 March 2018 - ACCC issues draft decision for joint marketing of NT gas

The ACCC has released a draft determination proposing to authorise joint gas marketing arrangements between Central Petroleum and Macquarie Mereenie (joint venture partners at the Mereenie oil and gas field).

The authorisation is proposed to run for three years. Submissions from interested parties may be made until

• View ACCC media release.
• View authorisation register.

1 March 2018 - ACCC issues SoI on Saputo-Murray Goulburn deal

The ACCC has released a Statement of Issues outlining some competition concerns with Saputo's proposed acquisition of the assets of Murray Goulburn.

The concerns relate to Murray Goulburn's Koroit dairy plant in western Victoria, including the likely impact on competition for farmers' milk.

ACCC Chairman, Rod Sims, said that the ACCC's view was that 'Saputo owning the Koroit plant would substantially lessen competition for the acquisition of dairy farmers’ raw milk in the region'.

Submissions from interested parties are due by 13 March with a final decision expected by 29 March.

• View ACCC media release.
• View merger register.

Plenty of media - see, for example

• John Durie, 'Saputo has to spill some milk to get MG in the fast lane' (The Australian, 2 March 2018)
• Carrie LaFrenz and Brad Thompson, 'ACCC has issue with Victorian dairy plant in Saputo, Murray Goulburn deal'' (AFR, 1 March 2018)
• Peter Hemhill and Simone Smith, 'Saputo-Murray Goulburn deal: ACCC flags concerns' (The Weekly Times, 1 March 2018)
• Clint Jasper, 'Competition watchdog raises concern over $1.3b foreign takeover of Murray Goulburn' (ABC Rural, 1 March 2018)
• Sue Neales, 'Saputo rebuffed on Murray Goulburn $1.3bn bid over Koroit plant' (The Australian, 2 March 2018)
• Darren Gray, 'Mega-milk deal sparks ACCC concern for farmers' (SMH, 1 March 2018).

1 March 2018 - Draft decision on Port of Brisbane and Carnival agreement

The ACCC has issued a draft authorisation for an agreement between Port of Brisbane and Carnival Cruise line relating to the development of a new dedicated cruise liner terminal.

The ACCC proposes to impose conditions in relation to certain aspects of the agreement that might limit competition from other cruise liners.

• View ACCC media release.
• View public authorisation register.

28 February 2018 - ACCC remarks: Competition in the Australian Financial System

The ACCC has welcomed the Productivity Commission's draft report into Competition in the Financial System at a public hearing this morning.

Speaking at the public hearing this morning, Marcus Bezzi (Executive General Manager (Enforcement & Compliance Division)) focused his remarks on:

1. Competition Advocacy
2. The ACCC's Financial Services Unit
3. 'Embedding greater transparency in decision-making and a commitment to competition'

View the ACCC's opening statement.

The opening statements were followed by questioning from PC Commissioners. The opening statements and subsequent discussion was streamed this morning and can be viewed via Facebook (skip through to the 3 hour mark to hear Marcus Bezzi and Molly Choucair (General Manager, Financial Services Unit) speaking on behalf of the ACCC).

26 February 2018 - Digital platform issues paper released

The ACCC has released an issues paper in relation to its Digital Platform inquiry. In its media release the ACCC indicates it is seeking feedback on:

• 'Whether digital platforms have bargaining power in their dealings with media content creators, advertisers or consumers and the implications of that bargaining power.
• Whether digital platforms have impacted media organisations’ ability to fund and produce quality news and journalistic content for Australians
• How technological change and digital platforms have changed the media and advertising services markets, and the way consumers access news
• The extent to which consumers understand what data is being collected about them by digital platforms, and how this information is used
• How the use of algorithms affects the presentation of news for digital platform users.'

The issues paper itself runs to 39 pages, although much of this is background information. In addition to asking six questions regarding the scope of the inquiry, the issues paper asks 36 stakeholder questions.

Submissions are due by 3 April 2018. More informal submissions can be made via a questionnaire on the ACCC's consultation hub by the same date.

See my inquiry page for more details.

See also

• ACCC media release
• Issues Paper
• Darren Davidson, 'World watching ACCC inquiry into dominant tech platforms' (The Australian, 26 February 2018)

20 February 2018 - ACCC announces 2018 priorities

In his annual address to CEDA in Sydney today ACCC Chair, Rod Sims, launched the ACCC's 2018 Compliance and Enforcement policy.

This year the focus for the ACCC in relation to competition issues will be:

• conduct that might contravene the new misuse of market power prohibition
• conduct that might contravene the new prohibition on concerted practices
• competition issues in the financial services sector
• competition issues in the commercial construction sector

In relation to both competition and consumer issues the focus will be

• competition and consumer isssues concerning 'the use of digital platforms, algorithms and consumer data, with a focus on emerging markets and matters identified by the ACCC's digital platforms inquiry'
• competition and consumer issues in relation to the provision of energy
• competition and consumer issues in the agriculture sector

In relation to consumer issues, the priorities will be:

• systematic consumer guarantee issues
• consumer issues in broadband services
• consumer issues in new car retailing
• ensuring small business receives their industry code and unfair contract term protections (focus on Franchising Code of Conduct)
• better product safety outcomes for consumers shopping online
• issues relating ot the Takata airbag recall

The Policy also notes 'enduring priorities', including cartel conduct, anti-competitive agreements and misuse of market power and reiterates its priority factors, including conduct of significant public interest/concern or conduct resulting in substantial consumer or small business detriment.

View:

• Rod Sims, '2018 compliance and enforcement priorities' (CEDA, Sydney, 20 February 2018)
• ACCC, 'ACCC focusses on energy, broadband, net economy and financial services in 2018' (Media Release, 20 February 2018)
• ACCC, 'Compliance and Enforcement Policy' (2018)

Plenty of media about the priorities, including:

• Misa Han, 'ACCC to crack down on banks' anti competitive behaviour' (AFR, 20 Feb 2018)
• Andrew White, 'ACCC to push for bigger fines for competition breaches' (The Australian, 20 February 2018)
• Tony Ibrahim, 'The markets the ACCC will be watching closely' (Choice, 20 February 2018)
• Sarah Farnsworth and Naomi Selvaratnam, 'ACCC puts big business on notice as larger fines for consumer breaches tops 2018 priority list' (ABC, 20 Feb 2018)
• AAP, 'ACCC wants bigger fines for bigger firms' (SBS, 20 Feb 2018)

20 February 2018 - ACCC appeals Cussons decision

The ACCC has appealed the Federal Court's decision in December last year in which it dismissed the ACCC's claims that PZ Cussons had engaged in cartel conduct in relation to laundry detergents.

ACCC Chairman, Rod Sims, stated that the ACCC believed  'that there was sufficient evidence for the Court to find that Cussons had entered into an understanding' and that the appeal will allow the Full Court to 'consider whether the trial judge should have inferred an understanding involving Cussons based on the uncontested evidence in this case.'

A case management hearing is scheduled before Justice Wigney on Thursday.

See ACCC, 'ACCC appeals Cussons decision' (Media Release, 20 February 2018).

View case page for further detail.

See also Roje Adaimy, 'ACCC appeals cartel case against Cussons' (The Australian, 20 February 2018) and 'ACCC appeals cartel case against Cussons' (9 news, 20 February 2018)

20 February 2018 - Gilbert + Tobin Competition Law Insights 2018

Gilbert + Tobin have published their 'Competition Law Insights 2018'. The report:

• explores recent changes to the competition laws
• examines the ACCC's activity in 2017 (including by providing some useful case studies)
• predicts what's in store for the year ahead (focussing on merger and cartel activity)

The report provides a neat overview of the Harper reforms and a useful table detailing the new merger processes. It also examines some of the current competition law related inquiries, including those into Australia's financial system and the digital platforms inquiry.

The report can be downloaded from the Gilbert + Tobin website.

18 February 2018 - Sims on ACCC priorities

ACCC Chair, Rod Sims, spoke with Patricia Karvelas for the National Wrap.

View the National Wrap on iView from just past the 4 minute mark to 13:51 - focus on the NBN, gas markets and the Facebook/Google inquiry.

Don’t miss my interview with @acccgovau boss Rod Sims tonight on @abcnews after 9pm #auspol pic.twitter.com/npcwzZhOqd

— PatriciaKarvelas (@PatsKarvelas) February 18, 2018

16 February 2018 - ACCC to re-authorise Qantas-Emirates alliance

The ACCC is proposing to re-authorise the Qantas/Emirates alliance for a further five years.

See authorisation register for details.

See also

• ACCC, 'ACCC proposes to re-authorise Qantas Emirates alliance' (16 February 2018)
• Annabel Hepworth, 'ACCC flags all clear for fresh Qantas Emirates tie-up' (The Australian, 16 February 2018).

16 February 2018 - ACCC allows Jetstar's Asian brands to coordinate

The ACCC has re-authorised the coordination of Jetstar Asia, Jetstar Pacific and Jetstar Japan.

See ACCC, 'ACCC allows Jetstar's Asian brands to coordinate' (Media Release, 16 February 2018)

See also ACCC authorisation register and Reuters staff, 'Australia consumer watchdog reauthorises coordination of Qantas' Asian tie-ups' (Reuters, 16 February 2018).

15 February 2018 - Criminal cartel proceedings commenced

Criminal cartel charges have been laid against The Country Care Group Pty Ltd, its Managing Director and a former employee.

The charges against Country Care Group represent the first criminal prosecution of an Australian corporation and the second criminal prosecution of a cartel (the first being NYK) under the criminal cartel provisions of the Competition and Consumer Act.

The charges against Country Care Group's Managing Director and a former employee represent the first time individuals have been prosecuted under thse provisions.

The charges are listed for mention in the Victorian Magistrates' Court in Mildura on 14 March 2018.

See ACCC, 'Criminal cartel proceedings commenced against Country Care and its managers' (Media Release, 15 February 2018)

See also Misa Han, 'ACCC launches first criminal cartel case against an Australian company' (AFR, 15 February 2018), Michael DiFabrizio, 'COuntry Care facing charges' (Sunraysia Daily, 16 Feb 2018) and Aisha Dow and Chloe Booker, 'Family business making wheelchairs accused of running criminal cartel' (SMH, 15 February 2018).

7 February 2018 - Productivity Commission issues draft report on Competition in the Australian Financial System

The Productivity Commission has released its draft report on Competition in the Australian Financial System.

The report argues that competition in the financial system 'is without a champion among the existing regulators'. When considering who should promote financial system competition the PC considered two options: (1) the ACCC to have expanded role as proactive competition advocate or (2) that ASIC's focus be expanded to include advancement of competition. Draft recommendation 17.1 states:

'To address gaps in the regulatory architecture related to lack of effective consideration of competitive outcomes in financial markets, an existing regulator must be given a mandate to take the lead on matters related to competition in the financial system. To minimise cost and disruption, this role should be implemented in substantial part through the Council of Financial Regulators (CFR).

There would be no change under this recommendation to the current legislated responsibilities of the regulators. Rather, the Australian Government should include in its Statement of Expectations for all members of the CFR the practice of reviewing, before they are implemented, regulator actions that may have material effects on competition.

The competition-related functions of the designated Council member would include:

• transparent analysis of competition impacts tabled in advance of measures proposed by regulators
• testing of the impacts of competition and community outcomes of additional provider integration.'

This is followed by an 'information request', seeking feedback on the merits of each option (ACCC or ASIC as regulator responsible for advancing competition)

Various other draft findings (inculcating that the 'Four Pillars policy is a redundant convention') and recommendations are made in relation to competition in the financial system.

The final report is expected to be completed by 1 July 2018

Plenty of media: Peter Ryan, '"Four pillars" banking policy is "ad hoc" and "redundant", Productivity Commission warns' (ABC News, 7 February 2018), Joanna Mather and James Eyers, 'APRA delivers banks $1b windfall: Productivity Commission' (AFR, 7 February 2018), Jennifer Jennings, 'Productivity Commission call for new competition watchdog' (Daily Telegraph, 7 February 2018), Clancy Yeates, '"Four pillars" policy under fire from Productivity Commission' (The Age, 7 February 2018), Simon Benson, 'Banking's four-pillars policy redundant, claims watchdog' (The Australian, 7 February 2018).

2 February 2018 - Media mergers and the ACCC's role in merger authorisations

Michael Corrigon and Simon Ellis at Clayton Utz provide some thoughts on the ACCC's new role in merger authorisation and discuss media mergers by reference to the New Zealand High Court's decision in NZME Limited v Fairfax Media Limited [2017] NSHC 3186 (recently appealed) and Australia's new Media Merger Guidelines.

See Michael Corrigan and Simon Ellis, 'What's the big deal? Media mergers and the ACCC's new role in merger authorisations' (Clayton Utz, Knowledge, 1 Feb 2018)

24 January 2018 - Competition Law Symposium

The symposium, Cartels, Optimal Enforcement and Theories in Competition Law, will be held in Brisbane on 27 March 2018. The symposium has been organised by the TC Beirne School of Law at the University of Queensland in memory of the research of former PhD student, Laura Guttuso.

The program, which can be downloaded here, features keynote speakers from around the world.

Various registration options are available. To find out more visit the symposium website.

16 January 2018 - ACCC merger reviews

The ACCC has initiated a few informal merger reviews to kick of the year.

The first is Cleanaway Waste Management's proposed acquisition of Tox Free Solutions. A market inquiries letter was sent on 11 January and submissions are due 9 Feb, with a provisional announcement date of 29 March 2018.

The second is MYOB's proposed acquisition of Reckon Limited's Practice Management Group; an informal review commenced on 12 January accompanied by a market inquiries letter. Submissions are due by 1 Feb with a provisional announcement date of 22 March 2018. See John Durie, 'ACCC to probe MYOB's Reckon acquisition' (The Australian, 15 January 2018) and Brendon Foye, 'ACCC to investigate MYOB's $180 million acquisition of Reckon' (CRN, 15 January 2018).

Yesterday the ACCC commenced a review of Qube Logistics' completed acquisition of Maritime Container Services Pty Ltd. Qube has provided the ACCC with an undertaking to keep the MCS business separate and independent until at least 14 March 2018. Submissions on a market inquiries letter are due by 1 February. As this is a completed acquisition the ACCC have not provided a provisional announcement date. See John Durie, 'ACCC queries Qube's MCS acquisition' (The Australian, 16 January 2018).

12 January 2018 - Decision published in ACCC's detergent cartel case

The decision in the ACCC's case against PZ Cussons alleging participation in a laundry detergent cartel was handed down late last year, with Justice Wigney dismissing the ACCC's claim; the reasons for judgment have now been published.

In 2013 the ACCC commenced actions against Colgate, Cussons, Unilever and Woolworths alleging price fixing conduct contrary to s 45 of the Trade Practices Act 1974 as it was at the relevant time. Both Colgate and Woolworths made admissions in 2016 (Unilever was the Immunity applicant) and were ordered to pay penalties totalling $18m and $9m respectively.

Cussons challenged the claims and the hearing commenced 7 June 2016, running over several days. Justice Wigney handed down his decision on 22 December, finding that the ACCC had not discharged its burden of proving, on the balance of probabilities, that the respondent had entered into the claimed arrangement or understanding. The reasons for judgment have now been released and show that Justice Wigney preferred the economic evidence suggesting the conduct resulted from oligopoly behaviour rather than agreement.

View case page for more details.

See

• ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590
• ACCC Media Release (22 Dec 2017)
• AAP, 'Laundry cartel case against Cussons dismissed' (SMH, 23 December 2017),

Colgate:

• ACCC Colgate media release.
• ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 (16 May 2016)

Woolworths

• ACCC v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676
• ACCC Woolworths media release
• John Durie, 'Woolworths admits cartel behaviour' (The Australian, 3 June 2016)
• John Durie, 'Woolworths' dirty laundry' (The Australian, 4 June 2016).

9 January 2018 - Criminal cartel cases loom

In an interview with the AFR, ACCC Chairman, Rod Sims, claims 2018 will be a 'big turning point for cartel enforceement', with 'three to four domestic-based criminal cartel actions' expected.

See Patrick Durkin, 'ACCC's criminal cartel cases seek jail time, big fines from companies (AFR, 8 January 2018). See also Glenda Korporaal, 'ACCC to launch criminal cartel cases' (The Australian, 9 January 2018).

See also Andrew Arulanandam, 'The ACCC's priorities for 2018' (KWM, In Competition blog, 12 January 2018)