Competition Law News 2008

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• 11 December 2008 - Qantas fined $20m for price fixing
  Qantas has been ordered to pay $20m in pecuniary penalties for price fixing in relation to air cargo fuel surcharges between 2002 and 2006. The amount of the penalty takes into account the "high cooperation" by Qantas during the ACCC's investigation. Qantas were also ordered to pay $200,000 toward the costs of the ACCC. Reasons will be published by Justice Lindgren in January. See ACCC press release.

• 4 December 2008 - Cartel bill referred to Senate Committee
  The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 has been referred to the Senate Standing Committee on Economics for report by 20 February 2009. Submissions to the Committee are due on 20 January 2009. View the Inquiry home page.

• 4 December 2008 - Collective Bargaining for wagering and racing broadcasts
  The ACCC has not objected to a collective bargaining notice given by ClubsNSW to negotiate with Tabcorp and Sky Channel on behalf ot its 332 members for purposes of determining 'terms and conditions, including fees, for the supply of wagering and racing broadcast services'. See Press Release

• 3 December 2008 - Skins penalised $120 000 for RPM
  Skins Compression Garments Pty Ltd (Skins), which supplies "Skins" sports compression garments, has been penalised $120,000 for engaging in resale price maintenance contrary to s 48 of the TPA. The RPM consisted of one of its agents inducing an Adelaide retailer not to advertise Skins products at a discount and, on other occassions, attempting to induce that retailer not to advertise Skins products at a discount. See further Press Release. See also news item of 10 September.

• 3 December 2008 - EU Publishes Guidance on abuse of dominance (Art 82)
  The EU has published the much anticipated guidance on Article 82, emphasising a focus on protecting consumers, and of protecting competition and not individual competitors, and providing for an 'effects-based' approach to assessing exclusionary conduct. The guidance can be viewed here.

• 3 December 2008 - Criminal Cartel laws introduced
  Chris Bowen MP today introduced into Parliament the long anticipated criminal cartel laws which will, if passed, see cartel participants facing jail terms of up to 10 year. See Press Release. The Bill and EM can be viewed here.

• 1 December 2008 - ACCC and CDPP released revised MOU for cartel matters
  The ACCC and CDPP have released a revised MOU for the investigationa nd prosecution of criminal cartel matters (see ACCC Press Release or CDPP Press Release). The CDPP has also released an Annexure to the Prosecution Policy of the Commonwealth, outlining its policy in considering immunity applications for persons implicated in a serious cartel offence; they will adopt the same criteria as the ACCC in determining applications. The ACCC also released revised immunity guidelines which will come into operation if and when the criminal cartel laws come into force. The revised guidelines, CDPP annexure and MOU can all be viewed here.

• 26 November 2008 - NZ Merger Guidelines
  The NZ Commerce Commission has issued Mergers and Acquisitions Clearance Process Guidelines. View Guidelines here. View the NZCC Media Release.

• 26 November 2008 - UK Merger Remedy Guidelines
  The Commerce Commission (UK) has published new Merger Remedy Guidelines (CC8)

• 25 November 2008 - BHP drops takeover bid for Rio Tinto
  BHP has dropped its bid to takeover Rio Tinto. BHP had earlier received clearance from the ACCC and US DOJ to proceed with the merger. See Rio Tinto Offers No Longer In The Best Interests Of BHP Billiton Shareholders

• 22 November 2008 - Misuse of market power amendments come into operation
  The Trade Practices Legislation Amendment Act 2008 (Cth) was assented to on 21 November and came into operation on 22 November. You can view the changes to s 46 on the misuse of market power page.

• 21 November 2008 - New Merger Guidelines Released
  Today the Chairman of the ACCC released the final version fo the Guidelines which now officially replace the 1999 Guidelines. Click here for more.

• 20 November 2008 - ACCC proposes to deny authorisation for cooperation agreement between Air New Zealand and Air Canada
  The ACCC believes the agreement (which would include the joint promotion and selling of direct flights between Sydney and Vancouver and Auckland and Vancouver) would reduce competition for flights between Australia and Canada; Air NZ and Air Canada are currently two of four main carriers on that route. The agreement would also involve the pooling and sharing of revenue from specified flights and harmonisation of sales policies (including setting specific fares). The ACCC does not consider there is sufficient public benefit to outweight this anti-competitive detriment. See ACCC Press Release and the authorisation application and draft determination.

• 10 November 2008 - (Amended) Trade Practices Legislation Amendment Bill passes through Senate
  The Trade Practices Legislation Amendment Bill 2008 - originally containing significant amendments to the predatory pricing regime which were defeated in the Senate on 16 September - has now passed through the Senate in revised form. The bill is currently waiting assent. For more on this bill click here.

• 28 October 2008 - New air cartel case launched by ACCC
  The ACCC has instituted separate proceedings against Qantas and British Airways seeking penalties for alleged price fixing. It is alleged the conduct, relating to fuel surcharges applied to the carriage of air cargo, took place between 2002 and early 2006.  Both airlines have made admissions under the ACCC's cooperation policy. Other airlines are also being investigated. A directions hearing is scheduled for 30 October 2008 before Justice Jacobson. Both parties have agreed with the ACCC as to recommended penalties (these have not yet been disclosed). See ACCC Press Release.

• 27 October 2008 - New Criminal Cartel Bill released
  Chris Bowen MP released the Exposure Draft Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. The bill provides for up to 10 years imprisonment from cartel conduct and omits the 'dishonesty' requirement that was included in the intial exposure draft bill to distinguish 'serious' from other cartel conduct. Click here for the press release.

• 1 October 2008 - BHP takeover of Rio given green light by ACCC
  The ACCC has raised no objections to BHP's proposed hostile takeover of Rio Tinto. See ACCC Press Release. Full reasons are available from the ACCC's Public Assessment page.

• 16 September 2008 - Predatory Pricing changes defeated in Senate
  Proposed changes to s 46(1AA) which would bring about a more sensible test requiring market power and a taking advantage of that power before the provision would be contravened (rather than the existing market share only test) have been defeated in the senate. The Trade Practices Legislation Amendment Bill 2008 will now return to the House and it is likely (and unfortunate) that we will see substantial amendments made to ensure passage through the upper house.

• 15 September 2008 - New s 46 proceedings against Cement Australia
  The ACCC has launched a s 46 action against Cement Australia and Pozzolanic Enterprises (related companies) alleging two breaches of s 46 relating to a contract to acquire flyash (a by-product of burning black coal which can be used as a partial substitute for cement) from Millmerran Power Station. It is alleged that the companies had no need for the flyash and took advantage of their market power 'for the purpsoe of preventing entry and competitive conduct in the relevant concrete-grade flyash market'. A directions hearing has been set for 31 October. Read ACCC Press Release.

• 2 September 2008 - RPM by Oobi
  The Federal Court has ordered Oobi Baby to pay penalties of $40,000 after they admitted to engaging in resale price maintenance in respect of infant toy and clothing products. In particular, it made known to internet-based retailers it would not supply them with products unless they agreed not to discount and, in some cases, did refuse to supply products because they had been discounted. It was accepted that the director and owner of Oobi was unaware that her actions were illegal. View the ACCC Press Release.

• 1 September 2008 - Creeping acqusitions
  The Government has released its Discussion Paper on Creeping Acquisitions which is open for comment until 10 October - there are plenty of controversial suggestions for reform here.

• 27 August 2008 - Senate Economics Committee Report on Trade Practices legislation Amendment Bill 2008 released
  This report has now been released and the Government is unlikely to be thrilled with it - even its majority Senators recommend that 'the government reconsider the implications of changing 'market share' to 'market power' in section 46(1AA) but supported the other provisions of the bill relating to s 46 (defining take advantage and the recoupment provision) and the other amendments (including extending jurisdiction to the Federal Magistrates Court to hear s 46 matters - a mind-boggling prospect!). View the Report.

• 27 August 2008 - Senate Economics Committee Report on Trade Practices (Creeping Acquisitions) Amendment Bill 2007 [2008] released
  This report has now been released. View the Report.

• 25 August 2008 - Plan to block amendment to Birdsville Amendment
  Opposition plans to block the passage of the Trade Practices Legislation Amendment Bill 2008 through the Senate.

• 22 August 2008 - BHP/Rio Tinto
  ACCC has called for comment on the proposed acquisition of Rio Tinto by BHP and has released a Statement of Issues. The proposed date for the ACCC announcing their findings is 1 October 2008.

• 13 August 2008 - St George-Westpac merger approved by ACCC
  The ACCC will not challenge a merger between St George and Westpac (see Press Release) concluding it is unlikely to substantially lessen competition, despite raising some competition concerns in their Statement of Issues.

• 13 August 2008 - ACCC alleges White Top Taxi's (Shepparton) and its directors and drivers engaged in anti-competitive conduct
  In Federal Court action instituted today, the ACCC alleges the company and its directors and one of its drivers ‘made and gave effect to a series of anti-competitive rostering arrangements in contravention of section 45(2) of the Competition Code of Victoria and sought to induce other taxi drivers and operators to abide by the rostering arrangements.’ They are seeking declarations, injunctions, compliance training and pecuniary penalties.. See Press Release.

• 13 August 2008 - Plastic Bag Levy trial authorised
  The ACCC granted final authorisation to the Australian National retailers Association for a four week plastic bag levy (of 10c) trial (see Press Release). The trial will involve Coles, Safeway and IGA in Narre Warren, Wangaratta and Warrnambool. See Authorisation register for more details, including full decision.

• 13 August 2008 - Medibank acquisition
  The ACCC will not challenge Medibank’s proposed acquisition of the Australian Health Management Group Ltd (see Press Release) concluding that there are ‘likely to be alternative providers of health services currently operating or capable of expanding their operations to form an alternative to the merged entity for small to medium PHI providers.’

• 11 August 2008 - ACCC v Baxter Healthcare
  The full Federal Court has just handed down its decision in ACCC v Baxter Healthcare (available at AustLII). The majority concluded there was a breach of s 46 and s 47. This case was initially instigated by the ACCC in 2002 but failed primarily on grounds of Crown immunity - the High Court overturned the Crown Immunity finding and sent the matter back to the full Federal Court. The matter has now been stood over so that parties can make submissions on appropriate relief. See also ACCC Press Release dated 15 August.

• 5 August 2008 - Grocery Report Released
  The Government released the ACCC's grocery report today. See Government Press Release and Preliminary Response. See full report. See grocery report page for more details.

• 31 July 2008 - Government Receives ACCC's Grocery Report. The Report will be released to the public next week. See Press Release.

• 30 July 2008 - Justice French named Australia's next Chief Justice of the High Court. See Press Conference Trasncript.

• 23 July 2008 - ACCC releases Statement of Issues in proposed St George-Westpac merger
  The ACCC has raised some competition concerns in relation to the wealth management operations of these parties about the merger and is now calling for comment. ACCC's final view on the merger expected by 20 August. See Press Release.

• 23 July 2008 - ACCC alleges RPM by Oobi Baby Pty Ltd
  ACCC alleges that Oobi Bay engaged in various forms of RPM in relation to its internet-based retailers. See Press Release.

• 22 July 2008 - Justice French appointed President Australian Competition Tribunal
  Justice French will replace Justice Alan Goldberg at the expiration of his term on 29 July 2008. See Press Release. [one day into his term (on 30 July) Justice French was appointed Australia's next Chief Justice of the High Court]

• 17 July 2008 - ACCC proposes to authorise plastic bag levy trial
  ACCC has issued draft determination proposing to trail plastic bag levy collectively imposed by 'Coles Supermarkets, Woolworths Supermarkets and IGA retailers in Narre Warren, Wangaratta and Warrnambool in Victoria'. Submissions in relation to the determination are due by 28 July. Click here for ACCC press release and draft determination.

• 17 July 2008 - Collective bargaining authorisation likely for AMA in NSW
  The ACCC issued a 'draft determination proposing to authorise a collective bargaining arrangement put forward by the Australian Medical Association (NSW).' The AMA NSW wishes to collectively negotiate the terms of contracts 'for visiting medical officers in the NSW public hospital system' with NSW Health and public health organisations. The ACCC believes the proposal may result in a public benefit with limited risk of public detriment. Click here for ACCC press release and draft determination.

• 17 July 2008 - Proposed authorisation - joint tender for waste and recyclables
  ACCC issued a draft determination 'proposing to grant authorisation to the Rockhampton, Gladstone, Central Highlands and Isaac Regional Councils to allow them to conduct a joint tender for provision of waste, recyclables and ancillary waste services'. It is hoped the joint tender will 'provide better services and lower costs to rural residents' Click here for ACCC press release

• 11 July 2008 - ACCC Appointments
  Minister for Competition Policy and Consumer Affairs, Chris Bowen, announces that Graeme Samuel will be recommended for appointment as Chairman of the ACCC for a further term of 3 years. In addition, Peter Kell will be appointed Deputy Chairperson for five years to replace outgoing Deputy Chairperson, Ms Louise Sylvan. A second Depty Chairperson, Professor Michael Schaper, has also been appoitned to the ACCC for a five year term. Professor Schaper will be responsible for small business. Click here for Treasury press release.\

• 11 July 2008 - Telecommunications Access Dispute
  ACCC received notification of telecommunications access dispute from NEC Australia relating to Telstra's supply of the LIne Sharing Service. ACCC has commenced arbitration process. See ACCC press release.

• 3 July 2008 - eBay/PayPal
  eBay withdraws plans to force sellers to use PayPal exclusively (see ACCC notification register for full details of the proposal and eBay press release for details of the withdrawal). This follows a draft notice by the ACCC indicating they would revoke eBay's exclusive dealing notification, hundreds of public submissions, threats by competitors to bring private actions and general unhappiness among sellers. eBay sellers are still required (and have been since 21 May) to offer PayPal as a method of payment, but they may also offer other payment options.

• 26 June 2008 - ACCC refuses clearance of Woolworths takeover of Karabar Supabarn supermarket
  The first time the ACCC has blocked an acquisition by Woolworths or Safeway in six years. Click here for the ACCC's reasons

• New Predatory Pricing Bill introduced (26 June 2008)
  On 26 June 2008 the government introduced the Trade Practices Legislation Amendment Bill 2008. Chris Bowen, Minister for Competition Policy and Consumer Affairs, claimed it was the biggest reform to the Act in 22 years. The amendments include modifying s 46 (particularly in relation to predatory pricing but also to 'clarify' the meaning of 'taking advantage') and to extend the powers of the ACCC under s 155. Click here for more details and links to the legislation and EM

• 20 June 2008 - ACCC begins prosecution of Pratt
  Over claims he misled the ACCC in its investigation of price fixing by Visy. Click here for the ACCC media release.

• January 2008
  Exposure Draft Bill released - the new cartel provisions!