ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12)

[2016] FCA 822 (20 July 2016)
[2017] FCA 851 (28 July 2017) (Penalties)

Prysmian Cavi E Sistemi S.R.L. v ACCC

[2018] FCAFC 30 (13 March 2018) (Appeal)

Prysmian Cavi E Sistemi S.R.L. v ACCC

[2018] HCASL 201 (8 August 2018) (Special Leave application - denied)

Overview

In 2009 the ACCC brought action against three parties; Prysmian Cavi E Sistemi SRL (Prysmian), Nexans SA and Viscas Corporation. It alleged market sharing and price fixing (effectively in the form of bid rigging) between September and October 2003 in contravention of s 45(2) of the TPA (now the CCA; the relevant conduct occurred prior to introduction of the new cartel laws).

In particular, the ACCC allaged that four companies - Prysmian, Nexans SA, Viscas and J-Power Systems (JPS - whistleblower and received immunity from prosecution) - engaged in cartel conduct in the markets for land cables and submarine cables wordwide in the form of bid rigging and market allocation.

Prysmian appealed the decision in August 2017 and, on 13 March 2018, the Full Federal Court dismissed the appeal.

Prysmian (Italian company)

In July 2016 Justice Besanco held that Prysmian had contravened the prohibition against price fixing (then contained in s 45 of the Act with the aid of a deeming provision in s 45A), but not the prohibition against exclusionary provisions (primary boycotts).

The penalty will be decided at a later date.

Nexans SA (French company)

In July 2016 Justice Besanco dismissed the claim against Nexans SA, holding that the ACCC had not established that Nexans SA was a party to a contravening agreement.

Viscas Corporation (Japanese company)

In 2013 Viscas, the third respondent, admitted it had engaged in the relevant conduct and received a penalty of $1.35million. See separate case page. Briefly, Viscas admitted that:

'... in September 2003, it reached an anti-competitive arrangement with other Japanese and European suppliers of land cables in relation to an invitation to tender issued by Snowy Hydro Limited. The terms of the arrangement were that:

Of the parties to the arrangement who submitted a tender, the tenderer with the lowest price would be one of the European suppliers; and

The European suppliers would decide between themselves who would submit the lowest price.

Viscas acknowledged to the Court that this arrangement arose out of an overarching arrangement in relation to the allocation of projects involving those Japanese and European suppliers of land cables.' (ACCC Press release)

The ACCC and Viscas agreed on orders to be made, including for a pecuniary penalty. Justice Lander accepted the penalty agreed between the parties was within the appropriate range. Justice Lander also 'made orders restraining Viscas from engaging in similar conduct for a period of 3 years and requiring it to pay a contribution of $50,000 towards the ACCC’s costs.' (ACCC Press release)