See ACCC, 'Concerns about Emergent, Oxford cold storage deal' (Press Release, 15 August 2019) and Emergent/Oxford merger register.

See Rod Sims, 'The Digital Platforms Inquiry: Melbourne Press Club speech' (Melbourne Press Club, 13 August 2019). See accompanying ACCC media release.

View ACCC media release and merger public register for more detail.

See also Darren Gray, 'Lion Dairy and Drinks Pty Ltd's' (SMH, 8 August 2019)

'Concealed Data Practices and Competition Law: Why Privacy Matters' (UNSW Law Research Paper No 19-53, 6 August 2019)

See ACCC, 'ACCC won’t oppose Wesfarmers’ proposed acquisition of Catch' (5 August 2019)

On 5 April 2018 K-Line pleaded guilty to cartel conduct and a sentencing hearing was held on 15 November 2018 before Justice Wigney.

The maximum penalty available was $100m, with discounts given for an early guilty plea and cooperation. It is the second criminal fine imposed for cartel conduct, the first was for $25m against NYK (in relation to the same cartel) in 2017.

See my K-line page.

View ACCC media release.

View Federal Court judgment.

See ACCC Digital Platforms Inquiry consultation page for further details.

See 'Australia Finalises Landmark Facebook, Google Report' (mlex podcast, 31 July 2019) (22.57mins)

See ACCC media release for further details.

See ACCC media release for further details.

It can be found on the ACCC website.

See also ACCC media release on the final report.

Details to follow on Digital Platforms page.

See Digital Platforms page for more detail.

The Australian reports that the government will delay a formal response because it requires more time for 'stakeholder consolation'. Katherine Kemp has expressed hope that this is a typo, but perhaps not ...

Hopefully it's stakeholder consultation, not "stakeholder consolation", the Aus govt is planning after release of ACCC Digital Platforms Inquiry Final Report today @competitionlaw @CPRC_research @DigCitzCon @CaronBW @UNSWAllensHub #dpireport #digitalplatforms #accc pic.twitter.com/PuNhg92Tuq

— Dr Katharine Kemp (@Katharine_Kemp) July 25, 2019

See, eg, Fergus Hunter and Jennifer Duke, 'Government to hand down landmark tech report amid global anticipation' (SHM, 25 July 2019), Simon Benson and Leo Shanahan, 'Tech giants to face shake-up' (The Australian, 26 July 2019, p 8) and Jack Derwin, 'The Australian government is dropping its big report into big tech today — here’s what it could mean for Google and Facebook' (Business Insider, 26 July 2019)

See ACCC media release.

See merger register.

See also Mathew Dunckley, 'ACCC pumps brakes on GrainCorp's $350m terminal deal' (SMH, 25 July 2019)

Mr Ridgeway replaces Mr Featherson who stepped down this month after a five year term.

See ACCC media release.

It is not yet known when the report will be released.

The Federal Court had held that the merger would have substantially lessened competition but for a behavioural undertaking offered by Pacific National on the final day of the hearing.

View media release.

View my case page.

Further market feedback is sought by 3 July 2019. A final decision is expected by 26 July 2019.

View media release.

View merger authorisation register.

Spoiler: Fisse concludes that:

'Undertakings like that accepted in the Aurizon decision seem unsatisfactory. They rely heavily on the discretion of dominant market participants and little ont eh constraint of market forces. They lack monitoring and enforcement by the ACCC. ...'

View media release.

View draft guidelines on the consultation hub.

"In our view, the proposed conduct would have led to consumers paying higher prices for Meredith Dairy’s goat cheeses, and would have limited the ability of delicatessens and other small retailers to compete with big chains ... In turn, it would have meant less competitive pressure on major supermarket chains to offer low prices."

This follows the ACCC's draft proposal to revoke on 1 May 2019.

See media release.

See RPM register.

Submissions from interested parties are due by 27 June 2019 with a final decision scheduled for 15 August.

See media release.

See merger register.

See also, Brad Thompson, 'ACCC casts cloud over Ruralco takeover' (AFR, 13 June 2019) and 'ACCC scrutinises proposed Landmark/Ruralco deal' (Sheep Central, 13 June 2019).

See media release.

See merger register.

See John Durie, 'Competition 'Godfather' Roger Featherston leaves ACCC' (The Australian, 11 June 2019) (subscription only - or paper version: John Durie, ''Godfather' leaves ACCC' (The Australian, 11 June 2019, page 25))

The ACCC has released:

Proposed legislative instrument

Related documents
(includes draft guidance, draft collective bargaining class exemption notice, discussion paper (August 2018) and submissions on discussion paper)

See ACCC, 'Feedback sought on collective bargaining plan for small businesses' (ACCC media release, 6 June 2019).

Listen or download here:

M&A law at heart of Australian competition regulator’s courtroom woes (mlex, 4 June 2019)
'Australian merger law is under renewed scrutiny as the country’s competition regulator fights to make its voice heard by Federal Court judges. The Australian Competition & Consumer Commission and Federal Court of Australia are at odds when it comes to trusting undertakings offered up by companies seeking approval for merger deals and the ACCC’s mistrust is leading it to consider recommending carving out new M&A measures for digital platforms this month.'

]]> Thu, 30 May 2019 09:46:59 +0100 http://australiancompetitionlaw.org/news.html#garuda19 The Federal Court has ordered Garuda to pay penalties of $19 million for price fixing in relation to fees and surcharges for air freight services.

The penalty ruling comes almost 10 years after the matter was first filed in the Federal Court.

See ACCC, 'Garuda ordered to pay $19 million for price fixing' (Media Release, 30 May 2019).

See Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786

]]> Mon, 27 May 2019 15:02:23 +0100 http://australiancompetitionlaw.org/news.html#classaction In a private cartel class action announced by Maurice Blackburn, five investment banks have been accused of operating a foreign exchange cartel between 2008-2013. The banks at the centre of the action are Citibank, UBS, JP Morgan, Barclays and RBS.

See Sarah Danckert, 'Hunting 'the Mafia': Big investment banks face Australian cartel claim' (SMH, 27 May 2019), David Chau, 'Citibank, UBS, JP Morgan, Barclays and RBS sued for rigging currency exchange rates' (ABC news, 27 May 2019), Peter Ryan, 'Five global banks face class action over exchange rate collusion' (ABC, The World Today, 27 May 2019) (audio, including with Maurice Blackburn principal lawyer Kimi Nishimura), Peter Vercoe, 'Citi, JPMorgan, UBS Face Forex Cartel Class Action in Australia' (Bloomberg, 27 May 2019).

]]> Mon, 27 May 2019 15:01:50 +0100 http://australiancompetitionlaw.org/news.html#vodafone On Friday (24 May) Vodafone launched a court action against the ACCC following the ACCC's announcement earlier in the month that it would oppose the proposed merger with TPG.

See case page for more details, including links to relevant media.

For the ACCC review of the proposed merger see:

ACCC Merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA))

]]> Sat, 25 May 2019 15:01:18 +0100 http://australiancompetitionlaw.org/news.html#simsclc ACCC Chair, Rod Sims, spoke at today's Competition Law Conference on the challenges of analysing competitive effects of conduct of multi-sided platforms and the challenges digital platforms pose for the effective application of merger laws.

See ACCC, 'Digital giants' buy-up of start-ups poses challenges for merger laws' (Media Release, 25 May 2019)

See Rod Sims, 'Address to the 2019 Competition Law Conference' (Speech, Competition Law Conference, Sydney, 25 May 2019)

See also Paul Sakkal, 'ACCC calls for laws to block Facebook and Google eliminating competitors' (SMH, 25 May 2019) and Paul Wallbank, 'ACCC head warns Facebook and Google over merger activities ahead of final Digital Platforms report' (Mumbrella, 26 May 2019)

]]> Fri, 24 May 2019 14:59:33 +0100 http://australiancompetitionlaw.org/news.html#laundrydismissed The Fulll Federal Court (Justice Middleton, Justice Perram and Justice Bromwich) has dismissed an appeal by the ACCC against a finding that there was insufficient evidence to find PZ Cussons had engaged in cartel conduct in relation to the supply of certain laundry detergents.

See ACCC, 'Appeal in laundry detergent cartel case unsuccessful' (Media Release, 24 May 2019) (reasons for judgment not yet available)

The original proceedings arose following an immunity application by Unilever. Colgate and Woolworths admitted involvment; Colgate was ordered to pay penalties of $18m and Woolworths was ordered to pay $9m.

See my case page for details.

]]> Thu, 23 May 2019 08:32:05 +0100 http://australiancompetitionlaw.org/news.html#cussonsjudgment The Federal Court has listed ACCC v Colgate-Palmolive for judgment tomorrow. The case was heard in August last year before Justice Middleton, Justice Perram and Justice Bromwich; judgment was reserved on 22 August 2018.

The case relates to the ACCC's appeal against the decision involving PZ Cussons Australia Pty Ltd. The ACCC alleged Cussons had engaged in cartel conduct with other laundry detergent manufacturers in relation to the supply of certain laundry detergents. In December 2017 the Federal Court dismissed the ACCC's claim. The ACCC subsequently appealed the decision.

The original proceedings arose following an immunity application by Unilever. Colgate and Woolworths admitted involvment; Colgate was ordered to pay penalties of $18m and Woolworths was ordered to pay $9m.

See my case page for details.

]]> Wed, 15 May 2019 10:58:50 +0100 http://australiancompetitionlaw.org/news.html#pacificnationaldecision The Federal Court has dismissed the ACCC's proceeding against Pacific National and Aurizon, relating to control of Acacia Ridge Terminal.

The Court indicated it would have found the proposed acquisition had the likely effect of substantially lessening competition had it not been for an undertaking offered to the Court on the last day of the hearing. The ACCC had rejected a similar undertaking proposed during its review process on the basis that 'it would not protect potential entrants from discriminatory conduct in the terminal’s day-to-day operations under Pacific National ownership or the operating agreement.'

The ACCC is considering the judgment. See my case page for details, including link to ACCC media releases, merger register and media.

]]> Tue, 14 May 2019 10:58:00 +0100 http://australiancompetitionlaw.org/news.html#tpgopposemedia There has been plenty of media following the ACCC's announcement that it would oppose the proposed merger between TPG Telecom Ltd and Vodafone Hutchison Australia Pty Ltd.

Mlex reporters, James Panichi and Laurel Henning have a new podcast discussing the issues.

'TPG-Vodafone merger suffers $700 million setback' (mLex, 9 May 2019, 17.25min)

See also:

• ACCC Merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA))
• James Panichi, 'Premature release of Vodafone Hutchison-TPG merger decision ‘deeply embarrassing,’ Australian competition chief says' (mLex, 8 May 2019)
• Laurel Henning and James Panichi, 'Vodafone Hutchison's TPG Telecom acquisition blocked as regulator slams 5G rollout decision' (mLex, 8 May 2019)
• Jennifer Duke, '‘Missed the point’: Top law firm backs block of TPG-Vodafone merger' (SMH, 13 May 2019)
• Patrick Durkin, 'ACCC needs smoking gun on merger block' (AFR, 10 May 2019)
• Elizabeth Knight, 'Thanks, Rod! ACCC telco merger veto makes Telstra an accidental winner' (11 May 2019)
• James Fernyhough, 'Rod Sims plays poker with David Teoh' (AFR, 10 May 2019)
• John Durie, 'Upstart might be forced to resume its network rollout' (The Australian, 10 May 2019, p 32)

 

8 May 2019 - ACCC opposes proposed TPG-Vodafone merger

The ACCC had announced that it had decided to oppose the proposed merger between TPG Telecom Ltd and Vodafone Hutchison Australia Pty Ltd. In its media release the ACCC highlighted the already 'very concentrated mobile servies market' and concentrated 'fixed broadband market' and stated that it considered the prposed merger would 'reduce competition and contestability in this sector'; in particular it would 'precluded TPG entering as the fourth mobile network operator in Australia'.

The parties have indicated they will challenge the decision. James Panichi (mlex), reports that Rod Sims is 'seriously relaxed' at the prospect of the decision to oppose being challenged in the Federal Court: view James Panichi tweet.

View ACCC, 'ACCC opposes TPG-Vodafone merger' (Media release, 8 May 2019).

View merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA)).

See also James Fernyhough, 'ACCC blocks Vodafone, TPG merger' (AFR, 8 May 2019) and Jennifer Duke, ''Embarrassing' blunder: ACCC blocks Vodafone and TPG Telecom merger' (SMH, 8 May 2019) and Stephen Letts, 'TPG share price crashes as ACCC blocks Vodafone merger' (ABC, 8 May 2019).

]]> Wed, 8 May 2019 10:57:30 +0100 http://australiancompetitionlaw.org/news.html#tpgoppose The ACCC had announced that it had decided to oppose the proposed merger between TPG Telecom Ltd and Vodafone Hutchison Australia Pty Ltd. In its media release the ACCC highlighted the already 'very concentrated mobile servies market' and concentrated 'fixed broadband market' and stated that it considered the prposed merger would 'reduce competition and contestability in this sector'; in particular it would 'precluded TPG entering as the fourth mobile network operator in Australia'.

The parties have indicated they will challenge the decision. James Panichi (mlex), reports that Rod Sims is 'seriously relaxed' at the prospect of the decision to oppose being challenged in the Federal Court: view James Panichi tweet.

View ACCC, 'ACCC opposes TPG-Vodafone merger' (Media release, 8 May 2019).

View merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA)).

See also James Fernyhough, 'ACCC blocks Vodafone, TPG merger' (AFR, 8 May 2019) and Jennifer Duke, ''Embarrassing' blunder: ACCC blocks Vodafone and TPG Telecom merger' (SMH, 8 May 2019) and Stephen Letts, 'TPG share price crashes as ACCC blocks Vodafone merger' (ABC, 8 May 2019).

]]> Wed, 1 May 2019 10:57:03 +0100 http://australiancompetitionlaw.org/news.html#exante mlex reporter, James Panichi, has piece out today discussing 'future-focused' regulation to keep up with tech mergers - an in particular, to deal with acquisitions of 'potential competitors'.

See, James Panichi, 'Digital giants look for clues in Australian wrangle over future-focused regulation' (mlex market insight, 1 May 2019)

]]> Wed, 1 May 2019 10:56:27 +0100 http://australiancompetitionlaw.org/news.html#rpmrevoke The ACCC has issued a draft notice proposing to revoke a resale price maintenance notification lodged by Meredith Dairy. The RPM conduct notified would prevent retailers selling its goat cheese products below a specified price.

ACCC Commissioner, Roger Featherston, said that the ACCC did not consider the conduct would result in a net public benefit.

See ACCC, 'Meredith Dairy proposal to set minimum prices raises competition concerns' (1 May 2019)

See ACCC, 'Meredith Dairy Pty Ltd' (Notification Register)

See also, Anthony Colangelo, 'Meredith Dairy cheesed off with shops discounting its product' (The Age, 1 May 2019)

]]> Wed, 1 May 2019 10:55:57 +0100 http://australiancompetitionlaw.org/news.html#mergerauth The ACCC is assessing its first merger authorisation application since reclaiming the power to do so following the Harper reforms. The application involved a proposed acquisition by AP Eagers Limited of Automotive Holdings Group Limited (the two largest automative retailers in Australia)

See ACCC, 'ACCC reviews first merger authorisation application' (1 May 2019)

See ACCC, 'AP Eagers Limited proposed acquisition of Automotive Holdings Group Limited' (Merger Register)

See further Simon Evans, 'AP Eagers moves up a gear in AHG takeover' (AFR, 1 May 2019)

]]> Wed, 1 May 2019 10:55:25 +0100 http://australiancompetitionlaw.org/news.html#mergerstoomany Professor Caron Beaton-Wells has an opinion piece in today's The Conversation discussing whether too many corporate mergers are harming consumers.

See Professor Caron Beaton-Wells, 'Are too many corporate mergers harming consumers? We won’t know if we don’t check' (The Conversation, 1 May 2019)

]]> Wed, 1 May 2019 10:54:50 +0100 http://australiancompetitionlaw.org/news.html#newtools What does the growth of digital markets mean for competition law and policy? See Professor Caron Beaton-Wells, 'Disrupting competition law: do digital markets require new legal tools?'

Keep an eye out for more information on this topic at the CPI conference page for yesterday's 'Dynamic Competition in Dynamic Markets: A Path Forward' conference. For those that could not attend or missed the live stream, you'll find some more detail here.

]]> Tue, 30 Apr 2019 10:53:49 +0100 http://australiancompetitionlaw.org/news.html#cpiconference Terrific CLEN/CPI conference today at Melbourne Law School on dynamic competition in dynamic markets, headlined by Prof Philip Marsden.

View CPI conference page and MLS-CLEN page for details.

For related stories and papers see:

• Yolanda Redrup, 'Facebook, Google are not publishers, says US antitrust expert' (AFR, 29 April 2019)
• Howard Shelanski, 'Is fining big tech companies the most effective way to protect users?' (ABC, RN Breakfast with Fran Kelly)
• Patrick Durkin, 'Facebook and Google have no excuse, warns ACCC' (AFR, 30 April 2019)
• Philip Marsden, 'Leave, Remain & Common Ground: Pragmatism in Dealing with Tech Giants' (CPI April 2019)

For reports discussed see:

• ACCC Digital Platforms Inquiry (Preliminary Report, December 2018)
• Digital Competition Expert Panel (UK), 'Unlocking digital competition' (Furman report) (March 2019)

]]> Tue, 23 Apr 2019 10:53:06 +0100 http://australiancompetitionlaw.org/news.html#billyhughes James Panichi has published an article on Australia's new criminal cartel laws, including discussion of the first criminal prosecution against individuals, recently committed for trial in the Fedearl Court. A must read for those interested in Australia's cartel laws.

See James Panichi, 'The revenge of Billy Hughes' (Inside Story, 23 April 2019).

]]> Mon, 15 Apr 2019 10:52:20 +0100 http://australiancompetitionlaw.org/news.html#fbi f cooperation (MOC) to 'strengthen the agencies' joint efforts in combating cartels and other anti-competitive behaviour'.

The MOC 'provides for the exchange of expertise and staff between the two agencies to enhance work in the detection, investigation and prosecution of criminal competition offences'.

See ACCC, 'ACCC and FBI sign inter-agency cooperation agreement' (15 April 2019)

]]> Thu, 11 Apr 2019 08:58:07 +0100 http://australiancompetitionlaw.org/news.html#ipguidelines Criminal cartel charges have been laid 'against a money tranfer business and five individuals for allegedly fixing the Australian dollar / Vietnamese dong exchange rate and fees they charge their customers'. This relates to exchange rates and fees charged between 2011 to 2016.

Charges were filed in the Magistrates' Court of Victoria.

See ACCC, 'Charges laid against alleged forex price fixing cartel' (Media Release, 11 April 2019).

]]> Tue, 9 Apr 2019 08:57:30 +0100 http://australiancompetitionlaw.org/news.html#ipguidelines The ACCC has advised that it is drafting guidelines on the application of Part IV of the CCA to intellectual property following the removal of the exemption in s 51(3) that will commence on 13 September 2019.

See ACCC update.

]]> Fri, 5 Apr 2019 08:56:37 +0100 http://australiancompetitionlaw.org/news.html#actappoint Treasurer, Josh Frydenberg MP, today announced the appointment of Professor Caron Beaton-Wells as a lay member of the Australian Competition Tribunal for a period of five years.

Professor Beaton-Wells is Director of the Competition Law and Economics Network and the Global Competition and Consumer Law Program at the University of Melbourne. She will join Mr RF Shogren, Mr R Steinwell, Dr D Abraham and Prof K Davis as the other lay members of the Tribunal which is presided over by Justice John Middleton.

See Josh Frydenberg MP, 'Appointment to the Australian Competition Tribunal' (Media Release, 5 April 2019)

See Australian Competition Tribunal website.

]]> Thu, 4 Apr 2019 08:55:50 +0100 http://australiancompetitionlaw.org/news.html#budget The papers show total departmental resourcing up from $250.7 million to $285.5 million and average staffing numbers up from 964 to 1,022 (total new departmental appropriations up from $210m to $235.1m).

Expenditure in relation to outcomes and planned performance is set out from page 83 of the document (the document itself is 24 pages, with numbering forming part of a broader portfolio document).

Outcome 1: Lawful competition, consumer protection, and regulated national infrastructure markets and services through regulation, including enforcement, education, price monitoring and determining the terms of access to infrastructure services.

Performance criteria for outcome 1 is set out in Table 2.2 and includes:

Target of 6 competition enforcement interventions (court proceeding commenced, s 87B undertaking accepted, admin resolutions)

Target of 80% of merger matters considered finalised by pre-assessment

Target of 100% of authorisation applications assessed within statutory timeframes

Target of 40 Australian Consumer Law enforcement interventions

[various other consumer, regulatory and monitoring targets]

Target of 3 completed market studies and inquiries.

]]> Wed, 3 Apr 2019 08:54:28 +0100 http://australiancompetitionlaw.org/news.html#probeend The ACCC has 'not found sufficient evidence' to proceed with an investigation into Deloitte, EY, KPMG and PwC over allegations of "cartel-like behaviour".

In a letter this week ACCC Chairman, Rod Sims, wrote: 'On the information before it, the ACCC has not found evidence that provides a basis to take further investigative action with respect to the allegations at this time'.

See Edmund Tadros 'ACCC ends Labor-backed cartel probe against Deloitte, EY, KPMG, PwC' (AFR, 3 April 2019) and Danny McCance, 'ACCC drops Big Four "cartel" probe' (economia, 3 April 2019).

See also Edmund Tadros and Tom McIlroy, 'The ACCC's cartel probe into Deloitte, EY, KPMG, PwC 'difficult to prove'' (AFR, 13 February 2019), Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).

]]> Sat, 30 Mar 2019 16:49:48 +1100 http://australiancompetitionlaw.org/news.html#laborpenalties Labor has announced it will raise penalties for competition and consumer law breaches if elected. In a joint press release issued by Chris Bowen MP (Shadow Treasurer), Madeleine King MP (Shadow Minister for Consumer Affairs) and Andrew Leigh MP (Shadow Assistant Treasurer and Shadow Minister for Competition and Productivity), Labor referred to last year's OECD report highlighting lower penalties in Australia compared with comparator jurisdictions and announced it would address this by raising the maximum penalties available for both competition and consumer law breaches. In particular, it will:

• 'raise the maximum dollar penalty for companies that break competition laws and rip of consumers from $10 million to $50 million' and
• 'adopt a higher standard for competition law breaches, being 30 per cent of the annual sales of the produce or service relating to the infringement, multiplied by the number of years the infringement took place', following the EU approach (this replaces the 'three times the value of the benefit received or 10% of annual turnover in preceding 12 months ...' maximum for competition law breaches)

See Chris Bowen MP, Madeleine King MP, Andrew Leigh MP, 'Tougher penalties for competition rip offs' (30March 2019)

]]> Thu, 28 Mar 2019 16:49:12 +1100 http://australiancompetitionlaw.org/news.html#knauf The ACCC has announced that it 'will not oppose Knauf’s proposed acquisitions of USG and Armstrong World Industries after accepting a court-enforceable undertaking from Knauf to divest assets'.

See ACCC media release, 'Knauf's acquisitions of USG and AWI conditionally approved' (28 March 2019)

See merger register: Gebr. Knauf KG - proposed acquisition of USG Corporation and Armstrong World Industries Pty Ltd

]]> Thu, 28 Mar 2019 16:47:55 +1100 http://australiancompetitionlaw.org/news.html#iphxenith The ACCC has announced it will not oppose the proposed acquisition of Xenith IP Group Ltd by IPH Ltd, both holding companies of IP businesses.

Last week the ACCC announced it would not oppose the prosed merger of QANTM and Xenith. It made clear it considered these as alternative mergers; no approval is given for all three to merge.

See ACCC media release, 'ACCC will not oppose proposed IPH - Xenith acquisition' (28 March 2019)

See merger register: IPH Limited - proposed acquisition of Xenith IP Group Limited

]]> Wed, 27 Mar 2019 16:47:54 +1100 http://australiancompetitionlaw.org/news.html#ridgeway The Australian's John Durie reports that Stephen Ridgeway is set to replace Roger Featherston as the ACCC's merger commissioner when his term ends in June (subject to approval of the appointment from state and federal governments).

See John Durie, 'Stephen Ridgeway set to be appointed ACCC mergers commissioner' (27 March 2019)

]]> Thu, 21 Mar 2019 16:47:45 +1100 http://australiancompetitionlaw.org/news.html#qantm The ACCC has announced it will not oppose the proposed merger between QANTM Intellectual Property Limited and Xenith IP Group Limited.

The merger will combine the second and third largest suppliers of IP services in Australia.

See ACCC's QANTM-Xenith media release.

See QANTM-Xenith merger register.

]]> Tue, 19 Mar 2019 15:53:51 +1100 http://australiancompetitionlaw.org/news.html#countrycarecommitted The Country Care Group Pty Ltd, its Managing Director and a former employee were committed to stand trial last week an all of the cartel charges laid against them by the CDPP.

The first case management hearing was heard this morning before Justice Wigney. The Prosecutor was ordered to file and serve an Indictment by 14 May 2019. The matter was listed for a further Case Management Hearing at 9:30am on 2 July 2019.

A trial is to be listed for hearing to commence on 14 October 2019 with an estimated duration of 6 weeks.

]]> Thu, 14 Mar 2019 10:31:07 +1100 http://australiancompetitionlaw.org/news.html#countrycarecommitted The Country Care Group Pty Ltd, its Managing Director and a former employee have been committed to stand trial in the Federal Court an all of the cartel charges laid against them by the CDPP.

The committal order was filed in the Federal Court today. The matter is listed for the first case management hearing before Justice Wigney next Tuesday 19 March. Justice Wigney also presided over the first criminal cartel case (CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (involved a guilty plea))

See ACCC, 'Country Care cartel case committed for trial in Federal Court' (13 March 2019).

See also Christine Caulfield, 'Country Care faces trial in first criminal cartel case against Australian Company' (Lawyerly, 13 March 2019) and Michael DiFabriziio, 'Country Care to face cartel conduct charges' (Sunraysia Daily, 14 March 2019) and mlex's James Panichi on twitter.

]]> Tue, 12 Mar 2019 10:30:21 +1100 http://australiancompetitionlaw.org/news.html#digitalsubs2 The second tranche of submissions in response to the ACCC’s Digital Platforms Inquiry Preliminary Report are now available on the ACCC’s website. There are 27 new submissions available (on my count ...)

The Treasurer has also agreed to extend the due date for submission of the Final Report from 3 June to 30 June in response to an ACCC request.

]]> Tue, 12 Mar 2019 09:20:21 +1100 http://australiancompetitionlaw.org/news.html#alppriceparity The ALP has announced that, if elected, it would ensure Australia's accommodation providers can set their own prices on personal websites, regardless of price parity clauses with online booking platforms, including Expedia and Booking.com.

See Andrew Leigh MP's media release (12 March 2019).

See also Shane Wright, 'Labor plan to boost hotels by helping them stand up to online booking giants' (The Canberra Times, 12 March 2019).

]]> Fri, 8 Mar 2019 09:08:32 +1100 http://australiancompetitionlaw.org/news.html#ramsayrecordings The hearing in the ACCC's misuse of market power and exclusive dealing case against Ramsay Health Care commenced on 25 February. On 8 March the Court heard that a surgeon recorded one of the meetings central to the ACCC's case:

For details see: Cat Fredenburgh, 'Doctor taped meeting where Ramsay Health unit CEO made alleged threats, trial hears' (Laywerly, 8 March 2019).

See also ACCC media release following institution of proceedings.

View case page.

]]> Wed, 6 Mar 2019 09:08:00 +1100 http://australiancompetitionlaw.org/news.html#countrycaremelbourne The committal hearing relating to allegations of criminal cartel conduct against The Country Care Group was in the Magistrates' Court of Victoria this week. mLex reporter, James Panichi provided some commentary from the court:

5 March: Witness in landmark Country Care criminal-cartel prosecution says the ACCC put him under "a bit of pressure" to sign a statement, and that the watchdog had "a way of jogging your memory" over a May 2014 meeting at the center of allegations. #competition @mlexclusive

5 March: Australian criminal-cartel case gets serious: The star witness of the ACCC/CDPP Country Care prosecution tells a Melbourne court he received death threats after it became known that he had been talking to the ACCC. #Competition @mlexclusive

4 March: "Immunity clashes: Day 2 of landmark Country Care criminal-cartel committal hearing in Magistrates' Court of Victoria. Defense lawyers put ACCC/CDPP star witness, Andrew Cuddihy, under sustained pressure over when, how and why he accepted immunity deal. #competition @mlexclusive"

]]> Mon, 4 Mar 2019 09:07:23 +1100 http://australiancompetitionlaw.org/news.html#platformssubs The ACCC has published the submissions made on the Digital Platforms Inquiry Preliminary Report.

A total of 86 submissions are available on the website.

View submissions.

]]> Fri, 1 Mar 2019 09:06:43 +1100 http://australiancompetitionlaw.org/news.html#woolworths2 The ACCC has accepted a variation to a 2013 undertaking provided by Woolworths in relation to shopper docket fuel discount offers. The variation has been brought about by the proposed sale of Woolworths' service stations to EG Group and the variation allows Woolworths to fund fuel discounts from outside its petrol division.

There is no change to the cap on 4 cents per litre for fuel discounts linked to supermarket purchases.

See ACCC, 'Woolworths fuel discount undertaking varied' (1 March 2019).

See Woolworths Limited - variation - s.87B undertaking.

]]> Thu, 28 Feb 2019 09:06:14 +1100 http://australiancompetitionlaw.org/news.html#accessrail2 The ACCC has announced that the' Australian Rail Track Corporation's 2008 interstate rail network access undertaking has been revised to operate for another 12 months'.

View ACCC, 'Interstate rail network access undertaking to continue' (28 February 2019).

View January 2019 variation of Interstate Access Undertaking.

]]> Thu, 28 Feb 2019 09:05:49 +1100 http://australiancompetitionlaw.org/news.html#bingoapproved2 The ACCC has announced it will not oppose Bingo's 'proposed acquisition of Dial-a-Dump after accepting enforceable undertakings from Bingo to divest its Banksmeadow processing facility.

See ACCC, 'Bingo’s acquisition of Dial-a-Dump not opposed, subject to divestiture undertaking' (28 February 2019)

See merger register.

]]> Wed, 27 Feb 2019 09:04:56 +1100 http://australiancompetitionlaw.org/news.html#advertising The ACCC has called for further input from the advertising industry on the digital platforms inquiry preliminary recommendations. In a speech delivered at SIms stated:

... publishers are arguing that because of the lack of transparency, advertisers don’t often know where their advertising appears online, and if they did they would be more likely to spend money with them.

We have not yet reached a view on these issues and we are continuing to examine the ad-tech supply chain with a view to understand better how it works and how this impacts advertisers.

In this we would like your help. ...

View Sims, 'Examining the impact of digital platforms on competition in media and advertising markets' (Speech at ThinkTV & ANAA Top 50 CMO Event, 27 February 2019)

See also ACCC, 'More input needed on digital advertising' (27 February 2019)

]]> Wed, 27 Feb 2019 09:04:13 +1100 http://australiancompetitionlaw.org/news.html#simspriorities In his annual address to the Committee for Economic Development Australia (CEDA), ACCC Chair, Rod Sims, launched the ACCC's 2019 Compliance and Enforcement Policy.

In relation to competition policy SIms noted the following:

• The ACCC aims to have 2-3 criminal cartel investigations to conclude and prosecutions to commence this year. At least three significant cartel investigations are expected to be referred to the CDPP.
• The SLC unit is aiming to take 2-3 cases to court this year (in addition to cases being pursued by other ACCC enforcement teams)
• Misuse of market power and concerted practices will be a particular focus, with Sims expressing confidence that proceedings will be instituted under these provisions this year
• The Financial Services Competition Branch has been established to complement the market studies team; this will include supporting the CDPP in its cartel prosecution of certain banks and bank officers commenced in 2018
• The commercial construction sector will be a focus area, with a dedicated Commercial Construction Unit (including support for CDPP prosecution of CFMMEU)

In relation to market studies Sims referred to a number of areas, including the Digital Platforms Inquiry, and further noted that a key focus will be advancing the ACCC's work on the Consume Data Right (not actually a market study).

In relation to advocacy Sims noted key priorities included reform to unfair contract laws, prohibition on the sale of unsafe goods and continued debate about the adequacy of 'laws against companies engaging in "harsh and unfair conduct" towards consumers'. He also noted advocacy in relation to privatisation, airports and road reform, amongst other things.

Sims also expressed concern that the 'bar for establishing a likely substantial lessening of competition' may be becoming too high and that the weight given to self-interested business testimony might be trumping 'clear commercial logic'. He further suggested that there seems to be a 'current bias to excessive consolidation' and that we as 'a community ... need to question whether this is the outcome we want'.

View ACCC 2019 Compliance and Enforcement Policy (see also summary version).

View Rod Sims, '2019 Compliance and Enforcement Policy' (speech to Committee for Economic Development Australia (CEDA), 26 February 2019.

View ACCC, 'ACCC 2019 focus on consumer guarantees and anti-competitive practices' (Media Release, 26 February 2019).

]]> Fri, 22 Feb 2019 13:08:55 +1100 http://australiancompetitionlaw.org/news.html#googlesub On Monday Facebook's Vice President of APAC Policy, Simon Milner, published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry. The recommendation is that there be a regulatory authority tasked with, among other things, assessing the impact of ranking news with the aim of identifying the effects of algorithms on production of news and journalistic content.

Now it's Google's turn - and Google agrees with Facebook that an algorithm regulator is not the way to go, but it's also keen to distinguish itself from 'social media sites': Google Australia, Our response to the ACCC Digital Platforms Inquiry Preliminary Report' (21 February 2019).

Submissions on the Preliminary Report were due last Friday (15 Feb). They are not yet available on the Inquiry website.

See Vanessa Mitchell, 'Google hits back at ACCC, says algorithm regulator risks poor outcomes' (CMO, 21 February 2019), Orlaith Costello, 'Google hits back at ACCC' (Channel news, 22 Feb 2019), Charles McConnell, 'ACCC should reconsider competitive landscape, Google says' (GCR, 21 February 2019).

]]> Fri, 22 Feb 2019 13:08:02 +1100 http://australiancompetitionlaw.org/news.html#adversecost On Monday the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House. This included repealing s 51(3) (effective 6 months after Royal Assent).

In addition, during the course of its passage several amendments were proposed by the Senate, including opposition amendment 8552 which added small business access to justice provisions. The amendment provides for assistance by the Ombudsman in relation to Part IV actions involving small business or family enterprises (via amendments to the Australian Small Business and Family Enterprise Ombudsman Act 2015) and provides for 'no adverse costs orders' in relation to Part IV actions affecting small business or family enterprises.

To facilitate the no adverse costs orders change, s 82 will be amended to allow the court to order that an applicant is not liable for the costs of the respondent, regardless of the outcome. Certain criteria must be satisfied before the court can make such an order (including that the action raises a reasonable issue for trial). The change will apply to actions brought on or after 1 July 2019.

See Hansard extract of Andrew Leigh MP discussing this amendment, including the following:

Labor's small business access to justice policy allows a small business to request a no adverse cost order when bringing on a court action for a breach of competition law. If the judge decides the case is in the public interest, the small business won't risk paying the big business's costs if they lose. As the Harper competition review concluded, 'there are significant barriers to small business taking private action to enforce competition laws.' Many commentators have noted that small business isn't scared so much of their own legal costs, but of being bankrupted by the legal costs of the other side.

]]> Wed, 20 Feb 2019 09:49:02 +1100 http://australiancompetitionlaw.org/news.html#nzupdate The NZ government is proposing to amend the Commerce Act to introduce an effects test for misuse of market power (and to repeal certain IP exemptions). A review is open for submissions until April Fools Day ... really ...

Nick Crang (Duncan Cotterill) discusses the proposed changes here: Nick Crang, 'Changes to Commerce Act would restrict actions of firms with substantial market power' (Mondaq, 20 February 2019).

See also:

• Ministry of Business, Innovation and Employment, 'Government proposes changes to strengthen protections against misuse of market power' (31 January 2019)
• Review of section 36 of the Commerce Act and other matters
• Hon Kris Faafoi, 'Govt targets anti-competitive behaviour' (Media Release, 25 January 2019)

]]> Wed, 20 Feb 2019 09:33:33 +1100 http://australiancompetitionlaw.org/news.html#pacifichearing In July last year the ACCC instituted proceedings against Pacific National and Aurizon: See ACCC's original media release (19 July 2019).

The hearing has continued before Justice Beach this week; mlex reporter, James Panichi has been following the action and reports 'grumpiness' in the Federal Court ...

Grumpiness in the Federal Court today as the ACCC's Aurizon-Pacific National lawsuit wrapped up. Clashes over Judge Beach's counterfactuals; criticism of the ACCC's claims of vindication over the Aurizon injunctions. Strong arguments on both sides. #competition @mlexclusive

— James Panichi (@JamesPanichi) February 20, 2019

See also: Christine Caulfield, 'ACCC cuts collusion claims as trial against Pacific National, Aurizon comes to an end' (Lawyerly, 15 Feb 2019).

]]> Mon, 18 Feb 2019 22:32:58 +1100 http://australiancompetitionlaw.org/news.html#ippasses The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House today; it has now passed both houses. The change is scheduled to commence six months after the Act receives Royal Assent.

The House considered Senate amendments unrelated to the s 51(3) change.

View bill as passed by both houses (relevantly schedule 4).

See also 'Where to now? Longstanding IP exemption repealed in Australian competition laws' (Gilbert+Tobin, 19 February 2019)

]]> Mon, 18 Feb 2019 09:32:37 +1100 http://australiancompetitionlaw.org/news.html#acccnewsletter The ACCC has released its second 'Competition Law Newsletter', this time focussing on Misuse of market power: the law and the ACCC's enforcement focus.

Read newsletter.

]]> Mon, 18 Feb 2019 09:31:22 +1100 http://australiancompetitionlaw.org/news.html#facebook Facebook's Vice President of APAC Policy, Simon Milner, has published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry that there be a regulatory authority tasked with:

'... monitoring, investigating and reporting on the criteria, commercial arrangements or other factors used by relevant digital platforms (identified according to objective criteria reflective of influence and size) to impact:

(a) the ranking and display of advertisements (or other content when displayed alongside advertisements) with the aim of identifying whether the platforms may be discriminating in favour of their own related businesses or a business with which they have a specific commercial relationship as well as the potential competitive effect

(b) the ranking and display of news and journalistic content with the aim of identifying the effects of algorithms or other policies on the production of news and journalistic content or competition in media markets.

The regulatory authority could also refer matters to other government agencies for investigation where relevant.

...'

See Simon Milner, 'How can Facebook best support sustainable journalism in Australia?' (Facebook, 18 February 2019).

See also: Jennifer Duke, ''People not regulators should decide': Facebook slams calls for crackdown' (The Age, 18 February 2019) and Competition Lore podcast, 'What's the 'right' regulation for Facebook?' with Sam Knox, Facebook's Associate General Counsel.

]]> Sat, 16 Feb 2019 09:30:35 +1100 http://australiancompetitionlaw.org/news.html#simsdigital ACCC Chairman, Rod Sims, delivered a presentation to the IIC Australian Chapter's Digital Platforms Inquiries Event in Sydney on Monday. A video of that presentation is now available here.

A copy of the speech is also available from the ACCC website: Sims, 'Insights and impacts of the ACCC Digital Platforms Inquiry' (11 February 2019)

See also Angela Flannery, 'ACCC Chair's insights: The Digital Platforms Inquiry' (Holding Redlich, 18 February 2019).

]]> Fri, 15 Feb 2019 16:11:14 +1100 http://australiancompetitionlaw.org/news.html#ipsenate After suggesting the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 had missed out on Senate debate yet again, it magically appeared before the Senate and passed soon after 8pm last night (thanks for the heads up Brent Fisse) with amendment.

The amendments do not relate to the IP changes.

The Bill is expected to appear before the House next week.

]]> Thu, 14 Feb 2019 16:04:20 +1100 http://australiancompetitionlaw.org/news.html#seeds The ACCC will not oppose DLF Seeds’ proposed acquisition of PGG Wrightson Seeds.

See ACCC media release.

View merger register.

]]> Thu, 14 Feb 2019 16:03:27 +1100 http://australiancompetitionlaw.org/news.html#fisseip The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018, if passed, would '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' by repealing subsection 51(3). It passed the House of Representatives on 17 October and was introduced to the Senate the following day. It was last scheduled for debate in the Senate on 27 November last year, but dropped of the schedule ... again.

There are now three proposed amendments (to other parts of the bill) that appear on the bill homepage, but none have been moved in the Senate; it was listed for discussion under general business in today's Red (by Senator Collins), but this was later withdrawn.

There were plenty of 'Treasury Laws Amendment' bills were up for debate in the Senate this week, but not this one, with the result that there's a fair chance it could lapse. But, just in case it does manage to get up, or is re-introduced down the track, it is well worth reading Brent Fisse's critique of the Bill, published on his website today:

Brent Fisse, 'Proposed Repeal of Section 51(3) of Competition and Consumer Act 2010 (Cth) and lack of proposed supply/acquisition agreement cartel exception' (14 February 2019)

]]> Wed, 13 Feb 2019 18:41:31 +1100 http://australiancompetitionlaw.org/news.html#cryosite The Federal Court has ordered Cryosite to pay $1.05m in penalties for cartel conduct relating to its asset sale agreement with Cell Care. Cryosite admitted the contravention.

Following the decision, ACCC Commissioner, Sarah Court, said:

"When companies jump the gun and coordinate or integrate competing businesses before finalising an acquisition between them, this can lead to permanent structural change in the market

Such cartel behaviour, which had the effect of ‘gun jumping’, undermines the effective functioning of the ACCC and the merger process

We want to be clear that parties to a transaction must remain independent and continue to act as competitors, even after they have signed a business or share sale agreement, until the deal is completed."

On this issue of penalty Justice Beach observed:

[49] '... the penalty to be imposed for cartel conduct of the kind I am considering ahead of a proposed sale or its completion needs to be sufficiently high to deter businesses who may otherwise be able to circumvent the proper application of s 50 and its associated divestiture remedy or at the least render less effective or nugatory such a remedy.'

[50] 'Further, any penalty must be sufficient to overcome the broader incentives to businesses to prematurely coordinate or integrate their businesses ahead of the completion of a sale in a manner which has an anti-competitive purpose or effect. ...'

In this case, although the penalty imposed was just over 10% of the maximum available for the contravention, Justice Beach observed that, in light of the size and financial position of cryosite, the penalty 'could not reasonably be regarded as an acceptable cost of doing business, and could be expected to render any risk/benefit analysis materially less palatable to other potential wrongdoers.' (para 88).

See ACCC, 'Cryosite to pay $1.05m for 'gun jumping' cartel conduct (13 Feb 2019).

See ACCC v Cryosite Ltd [2019] FCA 116 (13 February 2019).

]]> Wed, 13 Feb 2019 16:40:38 +1100 http://australiancompetitionlaw.org/news.html#kempdigital2 Dr Katharine Kemp discusses the key findings and recommendations contained in the ACCC's preliminary report for the Digial platforms inquiry in Episode 20 of the Competition Lare podcast ('Platforms, ads and the media?').

]]> Wed, 13 Feb 2019 15:38:57 +1100 http://australiancompetitionlaw.org/news.html#accountants The AFR is reporting that the ACCC has requested information from the big four accounting firms (Deloitte, EY, EPMG and PwC) regarding 'the way they sell audit and consulting services'.

See Edmund Tadros and Tom McIlry, 'Deloitte, EY, KPMG, PwC probed by ACCC over cartel conduct' (AFR, 13 February 2019) and Edmund Tadros and Tom McIlroy, 'The ACCC's cartel probe into Deloitte, EY, KPMG, PwC 'difficult to prove'' (AFR, 13 February 2019)

See also Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).

]]> Mon, 11 Feb 2019 12:52:20 +1100 http://australiancompetitionlaw.org/news.html#simsdigital ACCC Chair, Rod Sims, has delivered a speech to the International Institute of Communications this morning entitled 'Insights and impacts of the ACCC Digital Platforms Inquiry'. Sims discusses some of the issues being explored in the Digital Platforms Inquiry, particularly in relation to news and journalism.

View speech.

See also John McDuling, 'ACCCs Rod Sims to maintain pressure on Google and Facebook' (SMH, 11 February 2019), Max Mason, 'Google and Facebook need to take more responsibility for future of journalism, ACCC boss Rod Sims says' (AFR, 11 February 2019) and Amanda Meade, 'Regulation needed to save Australian journalism from Facebook and Google, watchdog says' (The Guardian, 11 February 2019).

]]> Thu, 7 Feb 2019 12:51:50 +1100 http://australiancompetitionlaw.org/news.html#garmin Justice Derrington in the Federal Court has given leave to B&K Holdings (Qld) Pty Ltd to amend its statement of claim and has dismissed Garmin's application for summary judgment.

B&K Holdings allege contraventions by Garmin Australasia Pty Ltd of s 46 (post-Harper, in the form of predatory pricing), s 45, 47 and also allege misleading or deceptive conduct.

In the course of his judgment Justice Derrington spent some time discussing principles around predatory pricing in section 46, including whether or not it is necessary that products be sold below 'avoidable cost'.

A case management hearing is listed for 26 February.

See B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64

]]> Thu, 7 Feb 2019 06:33:58 +1100 http://australiancompetitionlaw.org/news.html#qantas The ACCC has commenced an informal review of Qantas' completed acquisition of a 19.9% interest in Alliance Aviation Services Ltd to assess whether there has been a breach of section 50 (merger provision). The issues will be contained in a market inquiry letter (not yet published on the merger register). Submissions are due by 4 March 2019.

View merger register.

See also: Ellis Taylor, 'ACCC probes Qantas purchase of Alliance stake' (FlightGlobal, 8 February 2019), Nick Wenzel, 'Qantas acquires stake in Australian charter airline' (International Flight Network, 6 Feb 2019).

]]> Thu, 7 Feb 2019 06:16:51 +1100 http://australiancompetitionlaw.org/news.html#nccaccc Matthew Stevens has an opinion piece in today's AFR discussing what he describes as the 'NCC's staggeringly wrong-headed draft conclusion that the [ACCC's] oversight of the world's biggest coal port should be revoked' and the ACCC's response (published Wednesday) to that conclusion.

See Matthew Stevens, 'The ACCC and NCC slug it out over Port of Newcastle regulation' (AFR, 7 February 2019). See also Matthew Stevens, 'Competition tsars go to war over Newcastle port regulation' (AFR, 19 December 2018)

For more detail see:

• Submissions to NCC (including ACCC submission dated 6 Feb 2019)
• The NCC's 'Statement of Preliminary Views' on Port of Newcastle's application to the NCC to recommend revocation of the declaration of the shipping channel service at the Port of Newcastle (published on 19 December 2018).

]]> Thu, 7 Feb 2019 06:15:57 +1100 http://australiancompetitionlaw.org/news.html#graincorp The ACCC has 'released an issues paper seeking views on whether to exempt GrainCorp Operations Limited (GrainCorp) from certain parts of the [mandatory Port Terminal Access (Bulk Wheat) Code of Conduct] at its port terminal facility at Portland.'

Submissions are due by 28 February 2019.

View media release.

View issues paper and GrainCorp's submission.

]]> Thu, 7 Feb 2019 06:15:36 +1100 http://australiancompetitionlaw.org/news.html#siemens The ACCC has discontinued its review of the proposed Siemens Alstom merger in light of the European Commission's (EC) decision to block the transaction and the statements by the merger parties that the deal is off.'

The ACCC had previously expressed concerns about the merger and issued a statement of issues on 6 September 2018.

See media release.

See merger register.

]]> Fri, 1 Feb 2019 15:50:20 +1100 http://australiancompetitionlaw.org/news.html#valebrunt I was saddened to learn of the passing this week of former Competition Tribunal Member and economist, Professor Maureen Brunt AO.

The ACCC has issued a media release acknowledging Professor Brunt's role as 'one of Australia's most influential competition economists and academics ... instrumental to the development of our competition policy and law framework.'

View media release.

]]> Tue, 22 Jan 2019 15:49:47 +1100 http://australiancompetitionlaw.org/news.html#tpgmerger2 The ACCC today suspended its merger review timeline for the proposed merger between TPG Telecom Limited and Vodafone Hutchison Australia Pty Ltd, citing a delay in receiving information from the parties. The previous provision decision date of 28 March 2019 has been replaced with an expected new provisional date of 11 April 2019.

Last year the ACCC published a Statement of Issues outlining preliminary concerns about the proposed merger.

See merger register.

See also James Fernyhough, 'ACCC pushes back decision on Vodafone-TPG merger' (AFR, 22 January 2019).

]]> Tue, 8 Jan 2019 15:48:58 +1100 http://australiancompetitionlaw.org/news.html#bingojan On 29 November the ACCC issued a Statement of Issues outlining preliminary competition concerns relating to Bingo's proposed acquisition of Dial-a Dump. Today the ACCC launched a consultation process seeking market views about whether a proposed divestment by Bingo would address potential competition concerns.

See ACCC media release.

See merger register.

]]> Sun, 6 Jan 2019 15:48:23 +1100 http://australiancompetitionlaw.org/news.html#fines Thu, 20 Dec 2018 15:47:57 +1100 http://australiancompetitionlaw.org/news2018.html#interstaterail 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.

]]> Thu, 20 Dec 2018 15:47:40 +1100 http://australiancompetitionlaw.org/news2018.html#ruraldoc 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.

]]> Wed, 19 Dec 2018 15:47:06 +1100 http://australiancompetitionlaw.org/news2018.html#ruraldoc 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.

]]> Wed, 19 Dec 2018 15:46:28 +1100 http://australiancompetitionlaw.org/news2018.html#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 ...

]]> Tue, 18 Dec 2018 15:45:45 +1100 http://australiancompetitionlaw.org/news2018.html#acccmoney 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 ...

]]> Fri, 14 Dec 2018 15:45:07 +1100 http://australiancompetitionlaw.org/news2018.html#clenprivacy2 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.

]]> Thu, 13 Dec 2018 15:44:34 +1100 http://australiancompetitionlaw.org/news2018.html#unlockdaccc 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)

]]> Thu, 13 Dec 2018 15:42:43 +1100 http://australiancompetitionlaw.org/news2018.html#tpgmerger3 Wed, 12 Dec 2018 15:42:14 +1100 http://australiancompetitionlaw.org/news2018.html#fixedline 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

]]> Tue, 11 Dec 2018 15:41:47 +1100 http://australiancompetitionlaw.org/news.html#mortgagereport3 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.

]]> Mon, 10 Dec 2018 15:40:37 +1100 http://australiancompetitionlaw.org/news.html#nswports 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.

See, eg, Michael Parris, 'ACCC takes Port Botany, Port Kembla to court over ‘illegal’ container agreement with NSW government' (The Herald, 10 December 2018).

]]> Mon, 10 Dec 2018 09:30:36 +1100 http://australiancompetitionlaw.org/news.html#reportout 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) here.

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.

More to follow

]]> Mon, 3 Dec 2018 09:29:46 +1100 http://australiancompetitionlaw.org/news.html#platformsdraftdue 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).

]]> Thu, 29 Nov 2018 14:28:57 +1100 http://australiancompetitionlaw.org/news.html#ablreditor 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'.

]]> Thu, 29 Nov 2018 12:28:05 +1100 http://australiancompetitionlaw.org/news.html#yazakirun 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.

]]> Thu, 29 Nov 2018 10:51:54 +1100 http://australiancompetitionlaw.org/news.html#consumerwelfare 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.

]]> Thu, 29 Nov 2018 10:51:23 +1100 http://australiancompetitionlaw.org/news.html#bingo 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.

]]> Tue, 27 Nov 2018 10:50:31 +1100 http://australiancompetitionlaw.org/news.html#ipbillsenatedelay2 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 ...

Update: nothing on today's (Wednesday's) Red either.

]]> Fri, 23 Nov 2018 19:13:19 +1100 http://australiancompetitionlaw.org/news.html#ipbillsenate 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).

]]> Fri, 23 Nov 2018 19:12:40 +1100 http://australiancompetitionlaw.org/news.html#kemppaper 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.

]]> Fri, 23 Nov 2018 19:12:18 +1100 http://australiancompetitionlaw.org/news.html#waste3 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))

]]> Wed, 21 Nov 2018 19:11:40 +1100 http://australiancompetitionlaw.org/news.html#electricitydp2 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.

]]> Wed, 21 Nov 2018 19:10:52 +1100 http://australiancompetitionlaw.org/news.html#pacifichearing 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)

]]> Fri, 16 Nov 2018 19:10:31 +1100 http://australiancompetitionlaw.org/news.html#santos2 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.

]]> Thu, 15 Nov 2018 19:10:10 +1100 http://australiancompetitionlaw.org/news.html#punters 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.

]]> Thu, 15 Nov 2018 19:09:46 +1100 http://australiancompetitionlaw.org/news.html#vossloh 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.

]]> Mon, 12 Nov 2018 19:08:58 +1100 http://australiancompetitionlaw.org/news.html#obeid 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)

]]> Thu, 8 Nov 2018 11:10:52 +1100 http://australiancompetitionlaw.org/news.html#ninefairfax

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 rasied '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.

]]> Tue, 6 Nov 2018 11:09:24 +1100 http://australiancompetitionlaw.org/news.html#mergerpca 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.

]]> Tue, 6 Nov 2018 11:08:50 +1100 http://australiancompetitionlaw.org/news.html#gender 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)

]]> Thu, 1 Nov 2018 11:07:58 +1100 http://australiancompetitionlaw.org/news.html#guidelinesnew 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)

]]> Wed, 31 Oct 2018 11:07:17 +1100 http://australiancompetitionlaw.org/news.html#petrolpm 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:

• 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.

]]> Tue, 30 Oct 2018 11:06:30 +1100 http://australiancompetitionlaw.org/news.html#world5g 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)

]]> Fri, 26 Oct 2018 11:05:38 +1100 http://australiancompetitionlaw.org/news.html#googlesub2 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.

]]> Thu, 25 Oct 2018 16:53:49 +1100 http://australiancompetitionlaw.org/news.html#appointed2022 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)

]]> Wed, 24 Oct 2018 10:52:42 +1100 http://australiancompetitionlaw.org/news.html#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)

]]> Fri, 19 Oct 2018 11:26:42 +1100 http://australiancompetitionlaw.org/news.html#yazakidenied 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 ...).

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 ...

]]> Fri, 19 Oct 2018 11:26:35 +1100 http://australiancompetitionlaw.org/news.html#pfizerdenied 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)

]]> Thu, 18 Oct 2018 19:40:05 +1100 http://australiancompetitionlaw.org/news.html#specialleavetime 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.

]]> Thu, 18 Oct 2018 18:51:42 +1100 http://australiancompetitionlaw.org/news.html#ipbill 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.

]]> Thu, 18 Oct 2018 16:33:22 +1100 http://australiancompetitionlaw.org/news.html#annualreport2018 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.

]]> Thu, 18 Oct 2018 16:32:56 +1100 http://australiancompetitionlaw.org/news.html#cabchargemti 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

]]> Tue, 16 Oct 2018 16:32:27 +1100 http://australiancompetitionlaw.org/news.html#reportonreport 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

]]> Mon, 15 Oct 2018 16:32:05 +1100 http://australiancompetitionlaw.org/news.html#bankregulation 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).

]]> Sun, 14 Oct 2018 16:31:30 +1100 http://australiancompetitionlaw.org/news.html#bankregulation 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)

]]> Tue, 16 Oct 2018 17:19:15 +1100 http://australiancompetitionlaw.org/news.html#reportonreport The House of Representatives Standing Committee on Economcis has tabled its report on the ACCC's 2017 Annual Report.

The Chair's foreward 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

]]> Mon, 15 Oct 2018 17:18:28 +1100 http://australiancompetitionlaw.org/news.html#dataeconomy 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)

 

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)

]]> Sun, 14 Oct 2018 17:02:24 +1100 http://australiancompetitionlaw.org/news.html#bankregulation 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)

]]> Sat, 13 Oct 2018 16:42:29 +1100 http://australiancompetitionlaw.org/news.html#slhearings 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 .

]]> Sat, 13 Oct 2018 16:41:53 +1100 http://australiancompetitionlaw.org/news.html#saacccworkshop 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

]]> Fri, 12 Oct 2018 17:01:50 +1100 http://australiancompetitionlaw.org/news.html#linfox 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)

]]> Fri, 12 Oct 2018 17:01:30 +1100 http://australiancompetitionlaw.org/news.html#linfox 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)

]]> Tue, 9 Oct 2018 16:41:14 +1100 http://australiancompetitionlaw.org/news.html#baxt2018 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).

]]> Tue, 9 Oct 2018 16:39:12 +1100 http://australiancompetitionlaw.org/news.html#duriepopularism 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)

]]> Tue, 9 Oct 2018 16:38:50 +1100 http://australiancompetitionlaw.org/news.html#glencore 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)

]]> Tue, 9 Oct 2018 16:37:43 +1100 http://australiancompetitionlaw.org/news.html#s51bill 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.

]]> Tue, 2 Oct 2018 16:36:19 +1100 http://australiancompetitionlaw.org/news.html#foreignexchange 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.

]]> Thu, 27 Sep 2018 16:35:38 +1100 http://australiancompetitionlaw.org/news.html#egr 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

]]> Thu, 20 Sep 2018 16:34:52 +1100 http://australiancompetitionlaw.org/news.html#arrowyes 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)

]]> Fri, 14 Sep 2018 16:34:19 +1100 http://australiancompetitionlaw.org/news.html#waste 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))

]]> Wed, 12 Sep 2018 16:33:45 +1100 http://australiancompetitionlaw.org/news.html#apack 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.

]]> Thu, 6 Sep 2018 16:33:08 +1100 http://australiancompetitionlaw.org/news.html#siemensalstom 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.

]]> Fri, 31 Aug 2018 16:32:25 +1100 http://australiancompetitionlaw.org/news.html#updated 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

]]> Thu, 30 Aug 2018 16:31:37 +1100 http://australiancompetitionlaw.org/news.html#tpgvodafone 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.

]]> Thu, 30 Aug 2018 16:30:59 +1100 http://australiancompetitionlaw.org/news.html#transurbantick2 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).

]]> Wed, 29 Aug 2018 16:30:37 +1100 http://australiancompetitionlaw.org/news.html#eatop 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)

]]> Thu, 23 Aug 2018 16:30:09 +1100 http://australiancompetitionlaw.org/news.html#ooh 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).

]]> Thu, 23 Aug 2018 16:29:40 +1100 http://australiancompetitionlaw.org/news.html#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

]]> Thu, 23 Aug 2018 16:28:02 +1100 http://australiancompetitionlaw.org/news.html#podcastbigtech The latest Competition Lore podcast episode features Geoffrey Manne arguing that opponents of big tech have failred to identify clear harm to consumer welfare.

]]> Tue, 21 Aug 2018 14:28:19 +0100 http://australiancompetitionlaw.org/news.html#nem 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

]]> Mon, 20 Aug 2018 14:27:49 +0100 http://australiancompetitionlaw.org/news.html#energypowers 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).

]]> Sun, 19 Aug 2018 14:27:01 +0100 http://australiancompetitionlaw.org/news.html#journalists 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).

]]> Fri, 17 Aug 2018 14:26:19 +0100 http://australiancompetitionlaw.org/news.html#pexa 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)

]]> Thu, 16 Aug 2018 14:24:02 +0100 http://australiancompetitionlaw.org/news.html#cfmmeu 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)

]]> Mon, 13 Aug 2018 13:48:59 +0100 http://australiancompetitionlaw.org/news.html#palramed 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

]]> Mon, 13 Aug 2018 13:48:24 +0100 http://australiancompetitionlaw.org/news.html#aurizoninjunction 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.

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).

]]> Thu, 9 Aug 2018 13:47:59 +0100 http://australiancompetitionlaw.org/news.html#energizer 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

]]> Thu, 9 Aug 2018 13:47:37 +0100 http://australiancompetitionlaw.org/news.html#dsi 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

]]> Wed, 8 Aug 2018 13:47:15 +0100 http://australiancompetitionlaw.org/news.html#yazakisl 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.

]]> Wed, 8 Aug 2018 13:46:51 +0100 http://australiancompetitionlaw.org/news.html#prymianhighcourt 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.

]]> Wed, 8 Aug 2018 13:46:23 +0100 http://australiancompetitionlaw.org/news.html#podcastgomes 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

]]> Sat, 4 Aug 2018 13:45:54 +0100 http://australiancompetitionlaw.org/news.html#simslca 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)

]]> Wed, 1 Aug 2018 13:45:19 +0100 http://australiancompetitionlaw.org/news.html#podcastsims The latest Competition Lore podcast episode features ACCC Chairman, Rod Sims, discussing the ACCC's digital platforms inquiry.

Listen to the podcast

]]> Mon, 30 Jul 2018 13:44:51 +0100 http://australiancompetitionlaw.org/news.html#nicholls 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)

]]> Fri, 27 Jul 2018 13:44:16 +0100 http://australiancompetitionlaw.org/news.html#ninefairfax 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).

]]> Thu, 26 Jul 2018 13:43:44 +0100 http://australiancompetitionlaw.org/news.html#competitionlorelaunched 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

]]> Wed, 25 Jul 2018 13:43:03 +0100 http://australiancompetitionlaw.org/news.html#rpmnotification 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.

]]> Tue, 24 Jul 2018 13:42:01 +0100 http://australiancompetitionlaw.org/news.html#competitionlore2 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)

]]> Thu, 19 Jul 2018 10:22:13 +0100 http://australiancompetitionlaw.org/news.html#pacificunderstanding 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).

]]> Thu, 19 Jul 2018 10:21:48 +0100 http://australiancompetitionlaw.org/news.html#googlefineeu 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!

]]> Wed, 18 Jul 2018 10:21:19 +0100 http://australiancompetitionlaw.org/news.html#countrycaredelay 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

]]> Thu, 12 Jul 2018 10:20:47 +0100 http://australiancompetitionlaw.org/news.html#marketspeech2 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)

]]> Thu, 12 Jul 2018 10:20:06 +0100 http://australiancompetitionlaw.org/news.html#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)

]]> Wed, 11 Jul 2018 09:46:49 +0100 http://australiancompetitionlaw.org/news.html#energyreport 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).

]]> Fri, 6 Jul 2018 09:46:25 +0100 http://australiancompetitionlaw.org/news.html#cascade 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)

]]> Tue, 3 Jul 2018 09:46:01 +0100 http://australiancompetitionlaw.org/news.html#defining 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 teh 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.

]]> Thu, 28 Jun 2018 09:44:57 +0100 http://australiancompetitionlaw.org/news.html#economicshearing2 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.

]]> Wed, 27 Jun 2018 09:44:25 +0100 http://australiancompetitionlaw.org/news.html#airnz15 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.

]]> Mon, 25 Jun 2018 09:43:54 +0100 http://australiancompetitionlaw.org/news.html#pfizerleave 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)

]]> Thu, 7 Jun 2018 09:43:21 +0100 http://australiancompetitionlaw.org/news.html#alltalk 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)

]]> Tue, 5 Jun 2018 09:42:34 +0100 http://australiancompetitionlaw.org/news.html#chargeslaid 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.

]]> Mon, 4 Jun 2018 09:41:49 +0100 http://australiancompetitionlaw.org/news.html#unlockd 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)

]]> Mon, 4 Jun 2018 09:40:10 +0100 http://australiancompetitionlaw.org/news.html#mediacriminal ibank, 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)

]]> Fri, 1 Jun 2018 13:42:06 +0100 http://australiancompetitionlaw.org/news.html#bankscartelcharges 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).

]]> Fri, 1 Jun 2018 09:39:00 +0100 http://australiancompetitionlaw.org/news.html#anzcriminal 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) and Clancy Yeates, 'ANZ Bank facing cartel prosecution' (SMH, 1 June 2018).

]]> Fri, 25 May 2018 09:38:03 +0100 http://australiancompetitionlaw.org/news.html#pfizerappeal 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).

]]> Thu, 24 May 2018 09:37:39 +0100 http://australiancompetitionlaw.org/news.html#tyreschemefinal 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.

]]> Thu, 17 May 2018 09:37:00 +0100 http://australiancompetitionlaw.org/news.html#transurbansoi 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).

]]> Wed, 16 May 2018 09:36:08 +0100 http://australiancompetitionlaw.org/news.html#yazakipenalty2 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.

]]> Fri, 11 May 2018 09:35:33 +0100 http://australiancompetitionlaw.org/news.html#digitalplatformssub11may2 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.

]]> Fri, 11 May 2018 09:35:10 +0100 http://australiancompetitionlaw.org/news.html#dentistfinal The ACCC has authorised HCF to set capped prices for dental services - this follows a draft authorisation in March.

View ACCC media release. View

]]> Thu, 10 May 2018 09:34:40 +0100 http://australiancompetitionlaw.org/news.html#portsfinal 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.

]]> Thu, 10 May 2018 09:34:08 +0100 http://australiancompetitionlaw.org/news.html#dataright 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)

]]> Wed, 9 May 2018 09:33:37 +0100 http://australiancompetitionlaw.org/news.html#budget 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.

]]> Tue, 8 May 2018 09:33:10 +0100 http://australiancompetitionlaw.org/news.html#FisseCartels 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.

]]> Thu, 3 May 2018 09:31:57 +0100 http://australiancompetitionlaw.org/news.html#txagreenlight2 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)

]]> Thu, 3 May 2018 09:21:17 +0100 http://australiancompetitionlaw.org/news.html#digitalplatformssub3may

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.

Submissions can be viewed here.

]]> Wed, 2 May 2018 09:18:47 +0100 http://australiancompetitionlaw.org/news.html#digitalplatformssub2may

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).

]]> Mon, 30 Apr 2018 09:18:45 +0100 http://australiancompetitionlaw.org/news.html#dairyreport

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'.

]]> Fri, 27 Apr 2018 09:18:41 +0100 http://australiancompetitionlaw.org/news.html#tyrescheme2

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.

]]> Mon, 23 Apr 2018 09:17:13 +0100 http://australiancompetitionlaw.org/news.html#waste

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.

]]> Mon, 23 Apr 2018 16:11:30 +0100 http://australiancompetitionlaw.org/news.html#digitalsubs

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)

]]> Mon, 23 Apr 2018 09:14:19 +0100 http://australiancompetitionlaw.org/news.html#simspenalties

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).

]]> Thu, 19 Apr 2018 09:13:26 +0100 http://australiancompetitionlaw.org/news.html#commissioners

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

]]> Thu, 19 Apr 2018 09:12:15 +0100 http://australiancompetitionlaw.org/news.html#zodiac

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.

]]> Fri, 6 Apr 2018 16:08:18 +0100 http://australiancompetitionlaw.org/news.html#podcastoecd 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.

]]> Thu, 5 Apr 2018 16:07:30 +0100 http://australiancompetitionlaw.org/news.html#klineguilty 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.

]]> Thu, 5 Apr 2018 16:06:23 +0100 http://australiancompetitionlaw.org/news.html#swimming
Image source: By Jesus de Blas (Russia) [CC BY-SA 2.0], via Wikimedia Commons

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).

]]> Thu, 5 Apr 2018 16:05:45 +0100 http://australiancompetitionlaw.org/news.html#finalcomreport 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.

]]> Wed, 4 Apr 2018 16:05:01 +0100 http://australiancompetitionlaw.org/news.html#flightcentrepenalty 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.

]]> Wed, 4 Apr 2018 16:03:47 +0100 http://australiancompetitionlaw.org/news.html#saputogreenlight 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).

]]> Fri, 30 Mar 2018 16:01:53 +0100 http://australiancompetitionlaw.org/news.html#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.

]]> Thu, 29 Mar 2018 16:00:34 +0100 http://australiancompetitionlaw.org/news.html#donhad 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

]]> Thu, 29 Mar 2018 16:00:00 +0100 http://australiancompetitionlaw.org/news.html#ntgasauthorised 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

]]> Thu, 29 Mar 2018 15:59:09 +0100 http://australiancompetitionlaw.org/news.html#myob 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

]]> Wed, 28 Mar 2018 15:58:12 +0100 http://australiancompetitionlaw.org/news.html#cowdelay The ACCC has postponed its final decision on Saputo's proposed acquisition ot acquire Murray Goulburn's operating assets to allow parteis 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)

]]> Wed, 28 Mar 2018 15:56:29 +0100 http://australiancompetitionlaw.org/news.html#clenpenalties 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)

]]> Tue, 27 Mar 2018 15:53:46 +0100 http://australiancompetitionlaw.org/news.html#greatsymposium 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.

]]> Mon, 26 Mar 2018 11:06:08 +1100 http://australiancompetitionlaw.org/news.html#oecdreport

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)

]]> Fri, 23 Mar 2018 12:34:23 +1100 http://australiancompetitionlaw.org/news.html#qantas

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).

]]> Tue, 20 Mar 2018 12:31:13 +1100 http://australiancompetitionlaw.org/news.html#datastream

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.

]]> Thu, 15 Mar 2018 12:29:45 +1100 http://australiancompetitionlaw.org/news.html#countrycaremelbourne

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)

]]> Thu, 15 Mar 2018 12:28:34 +1100 http://australiancompetitionlaw.org/news.html#cinema

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

]]> Thu, 15 Mar 2018 12:27:07 +1100 http://australiancompetitionlaw.org/news.html#pacific 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.

]]> Thu, 15 Mar 2018 12:26:06 +1100 http://australiancompetitionlaw.org/news.html#mortgageinquiry

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:

]]> Tue, 13 Mar 2018 12:25:05 +1100 http://australiancompetitionlaw.org/news.html#prysmianappeal

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)

]]> Mon, 12 Mar 2018 14:43:00 +1100 http://australiancompetitionlaw.org/news.html#valebaxt

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.

]]> Thu, 8 Mar 2018 14:40:56 +1100 http://australiancompetitionlaw.org/news.html#qubemerger2

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).

]]> Thu, 8 Mar 2018 14:40:15 +1100 http://australiancompetitionlaw.org/news.html#accordeal

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.

]]> Tue, 6 Mar 2018 09:09:44 +1100 http://australiancompetitionlaw.org/news.html#fissemergers

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)

]]> Tue, 6 Mar 2018 11:34:52 +1100 http://australiancompetitionlaw.org/news.html#migration

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!]

]]> Mon, 5 Mar 2018 09:07:54 +1100 http://australiancompetitionlaw.org/news.html#dtsc

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

]]> Mon, 5 Mar 2018 09:07:13 +1100 http://australiancompetitionlaw.org/news.html#dentist

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

]]> Fri, 2 Mar 2018 13:50:52 +1100 http://australiancompetitionlaw.org/news.html#lng

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)

]]> Fri, 2 Mar 2018 13:50:10 +1100 http://australiancompetitionlaw.org/news.html#ntgas

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

]]> Thu, 1 Mar 2018 13:49:12 +1100 http://australiancompetitionlaw.org/news.html#saputosoi

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).

]]> Thu, 1 Mar 2018 13:47:43 +1100 http://australiancompetitionlaw.org/news.html#ports

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.

]]> Wed, 28 Feb 2018 13:45:18 +1400 http://australiancompetitionlaw.org/news.html#pcstatement 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).

]]> Mon, 26 Feb 2018 08:05:12 +1100 http://australiancompetitionlaw.org/reports/2017digitalplatforms.html#digitalplatformsip 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)

]]> Tue, 20 Feb 2018 12:43:09 +1100 http://australiancompetitionlaw.org/news.html#prioritiesbanner 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)

]]> Tue, 20 Feb 2018 12:42:50 +1100 http://australiancompetitionlaw.org/news.html#cussonsappeal 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)

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)

]]> Tue, 20 Feb 2018 10:28:29 +1100 http://australiancompetitionlaw.org/news.html 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.

]]> Sun, 18 Feb 2018 12:42:21 +1100 http://australiancompetitionlaw.org/news.html 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

]]> Fri, 16 Feb 2018 12:41:58 +1100 http://australiancompetitionlaw.org/news.html 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).

]]> Fri, 16 Feb 2018 12:41:36 +1100 http://australiancompetitionlaw.org/news.html 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).

]]> Thu, 15 Feb 2018 13:21:46 +1100 http://australiancompetitionlaw.org/news.html Criminal cartel charges have been laid against The County Care Group Pty Ltd, its Managing Director and a former employee.

The charges against County 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 County 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)

]]> Wed, 7 Feb 2018 09:02:49 +1100 http://australiancompetitionlaw.org/news.html 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).

]]> Fri, 2 Feb 2018 09:02:34 +1100 http://australiancompetitionlaw.org/news.html 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)

]]> Wed, 24 Jan 2018 09:02:01 +1100 http://australiancompetitionlaw.org/news.html 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.

]]> Tue, 16 Jan 2018 09:01:29 +1100 http://australiancompetitionlaw.org/news.html 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).

]]> Fri, 12 Jan 2018 10:28:32 +1100 http://australiancompetitionlaw.org/news.html 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 also:

• 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).

]]> Tue, 9 Jan 2018 10:27:44 +1100 http://australiancompetitionlaw.org/news.html 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).

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