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Latest Australian Competition Law News and Commentary

Easter eggs

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

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


Rubbish truck

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

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



Gas pipeline

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

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

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

View APC/CK merger register.


Train and signals

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

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

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

View Siemens/Alstom merger register.


Person on phone

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

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

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

View TPG/Vodafone merger register.



East Asia

29 August 2018 - East Asia competition policy meeting and conference

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

See ACCC media release.

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



23 August 2018 - ACCC will not oppose outdoor advertising deals

The ACCC has announced it will not oppose either:

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

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

See ACCC media release

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


Fresh fruit and vegetables

23 August 2018 - ACCC considers collective bargaining exemption

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

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

See ACCC media release

See ACCC Discussion Paper

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



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

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

Listen to the #6 podcast


Power lines

21 August 2018 - Electricity market monitoring for ACCC

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

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

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

See ACCC media release

See ACCC project home page

See terms of reference


Power lines

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

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

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

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

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

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


Image of digital platforms icons

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

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

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



17 August 2018 - ACCC concerns with electronic property settlement market

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

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

See Joyce Moullakis, '' (AFR, 17 August 2018)


Steel reinforcement

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

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

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

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

View ACCC media release

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



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

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

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

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

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

View ACCC media release



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

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

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

See ACCC media release.

View Federal Court Judgment.

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


Battery stack

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

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

View ACCC's Energizer/Spectrum media release

View merger register


Handshake deal

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

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

View ACCC's DSI/Fero media release


High Court

8 August 2018 - Another special leave application ...

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

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


High Voltage cable

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

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

View ACCC media release

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

View my case page.



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

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

Listen to the #4 podcast


Rod Sims

4 August 2018 - ACCC Chairman address to Law Council meeting

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

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

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

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

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

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

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



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

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

Listen to the podcast


Algorithmic pricing

30 July 2018 - Rob Nicholls on algorithmic price wars

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

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



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

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

See public register.

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



26 July 2018 - Competition Lore podcast launched

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

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

Competition Lore website

Apple podcast

Google podcasts


Writing highlighting competitive price

25 July 2018 - ACCC does not oppose first RPM notification

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

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

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

View ACCC update. View notification register.


Digital platforms - binary code and monitors

24 July 2018 - Taking on big tech

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

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

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


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

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

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

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

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


Google circles

19 July 2018 - EU: Google fined

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

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

View European Commission press release.

Google has announced it will appeal.

Plenty of media ... Google it!


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Images copyright: Images in the Hot Topic section (left column): male runner on starting blocks courtesy of stockimages at FreeDigitalPhotos.net; gas pump filling nozzles courtesy of Rawich at FreeDigitalPhotos.net and price magnifier definition means promotions and savings courtesy of Stuart Miles at FreeDigitalPhotos.net.(right column): business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; vacations computer key courtesy of Stuart Miles (Image ID: 10091676) at FreeDigitalPhotos.net; handshaking courtesy of Photokanok at FreeDigitalPhotos.net.


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