Welcome to Australian Competition Law
Latest Competition Law News and Commentary
26 November 2015 - ACCC does not oppose FedEx's proposed acquisition of TNT
26 November 2015 - ACCC does not accept Brookfield's proposed undertakings
The ACCC has not accepted Brookfield's proffered behavioral undertakings relating to its proposed acquisition of Asciano. The ACCC is yet to determine whether it will oppose the proposed acquisition. See ACCC media release. See ACCC merger register.
26 November 2015 - ACCC does not oppose Transurban consortium's proposed acquisition of Brisbane's AirportLink M7
26 November 2015 - Yazaki guilty of colluding with its competitor
The Federal Court has found that Yazaki Corporation engaged in collusive conduct with its competitor when supplying wire harnesses to Toyota in Australia. The conduct took place in 2003 and 2008 and breached the exclusionary conduct provisions of the CCA and the Competition Code of Victoria. See ACCC, 'Federal court finds Yazaki corporation engaged in collusive conduct' (26 November 2015).
25 November 2015 - Merrett on government's response to Harper Report
Alexandra Merrett has an item published in The Conversation this morning focussing on the Governments agreement with the recommendation to establish a new body in charge of policy development - see Alexandra Merrett, 'Turf wars loom over new competition policy body', The Conversation, 26 November 2015.
25 November 2015 - Academic commentary on government's response to Harper Report
A couple of items were published on The Conversation website today. The first, by Prof Stephen King, praises the response (King, 'Harper response is good economics and smart politics', The Conversation, 25 November 2015); the second, by Prof Caron Beaton-Wells, is critical of the delayed response on the proposed effects test for misuse of market power (Caron Beaton-Wells, 'We’ve already had consultation on the effects test: more is just a political smoke screen', The Conversation, 25 November 2015)
25 November 2015 - Government response to Harper
I've summarised the response to most of the 'competition law' recommendations here. More detail to follow shortly.
24 November 2015 - Government releases Harper Response
The Government has accepted most recommendations, but has deferred discussion on the misuse of market power proposal. More specifically, the Government has supported, in whole or part, 44 of the 56 recommendations. Whether it accepts the remaining 12 will depend upon the outcome of further review and consultation. A press release accompanied the response - see 'Turnbull Government to promote more choice, better services, stronger growth' (Media Release, 24 November 2015). The ACCC has welcomed the Government's response - see ACCC, 'ACCC welcomes the Government's response to the Harper Review' (Media Release, 24 November 2015)'
Plenty of media. See, for example, Gareth Hutchens, 'Turnbull government responds to Harper review into competition laws, accepts majority of recommendations' (SMH, 24 November 2015), Anna Vidot, 'Federal Government again delays decision on 'effects test' in response to Harper Review' (ABC Rural, 24 November 2015), Jennifer Hewett, 'Competition law – Harper proposal for effects test has caused real concern' (AFR, 23 November 2015).
19 November 2015 - Morrison on Harper
Treasurer, Scott Morrison, yesterday spoke at the Bloombert Summit discussing (amongst other things) competition policy and noting, again, that the 'Government is committed to working with the states on a comprehensive response to the Competition Policy Review conducted by Professor Ian Harper'. See 'A National Platform for Economic Growth and Jobs' (Address to the Bloomberg Summit, Sydney, 18 November 2015) (scroll down to 'A more competitive Australia' toward the middle) See also, John Durie, 'Harper report front and centre' (The Australian, 19 November 2015) and John Durie, 'Canberra splits off Section 46 for separate discussion' (The Australian, 18 November 2015).
19 November 2015 - ACCC will not oppose Shell's acquisition of BG
18 November 2015 - Durie's Harper update
John Durie's latest column includes an update on the Harper Review debate (about half way down the column beginning 'Still harping on'). He notes Cabinet will consider the report next week before taking the package to the state treasurers meeting in early December. For now, the s 46 debate will be put on hold and a discussion paper on that section will be issued.
18 November 2015 - Sea Swift withdraws merger authorisation application but remain committed to the acquisition
Sea Swift has withdrawn its application for merger authorisation from the Australian Competition Tribunal. The application was lodged following the ACCC's announcement (on 9 July 2015) that it would oppose the merger. The Tribunal hearing was scheduled to commence on 30 November. Sea Swift's CEO, Fred White, has released a statement indicating that both Sea Swift and Toll remain 'fully committed to the proposed acquisition' and that it proposes to amend the application to strengthen the case for approval and then resubmit to the Tribunal. See also Notice of Withdrawal (PDF), ACCC media release.
17 November 2015 - Small business and the Harper Review
Alexandra Merrett's latest piece in The Conversation discusses some of the less talked about ('less sexy'), but nevertheless significant, recommendations made in the Harper Report which, if implemented, would benefit business - particularly small business. See Alexandra Merrett, 'Small business can't afford to overlook the little things in the Harper Review' (The Conversation, 17 November 2015).
17 November 2015 - New Zealand Commerce Act Review
The New Zealand Ministry of Business, Innovation and Employment today released an Issues Paper - Targeted Review of the Commerce Act 1986 - which addresses three key issues - misuse of market power (s 36), the cease and desist regime and a new market studies function. The issues paper notes that the Ministry's preliminary view is that the operation of s 36 has 'not been satisfactory' because it appears 'to be failing to maximise the long-term benefit of consumers', it is 'too complex to allow for cost-effective and timely application' and is 'misaligned with other prohibitions' in the Act by relying on a purpose test rather than an 'effects' test. Submissions on the issues paper may be made until 9 February 2016.
16 November 2015 - Gregory: 'The art of undermining the ACCC'
Mark Gregory has an item in today's Technology Spectator claiming that the threatening stance adopted by the government toward the ACCC could lead to adverse consumer outcomes. See, Mark Gregory, 'The art of undermining the ACCC' (The Australian, 16 November 2015)
16 November 2015 - ACCC Qube consortium bid review
On Friday the ACCC commenced a public informal review on Qube consortium's bid for Asciano. See merger register. See also John Durie, 'ACCC upgrades Qube bid review' (The Australian Business Review, 16 November 2015) and Jenny Wiggins, 'Asciano, Qube, spar over due diligence for $9bn takeover proposal' (SMH, 16 November 2015).
14 November 2015 - Could Sims ruin Christmas?
Patrick Durkin has an item in today's AFR discussing some of the proposed merger deals currently before the ACCC which are due to be determined just before Christmas. See Patrick Durkin, 'Why ACCC chairman Rod Sims might ruin Christmas' (Australian Financial Review, 14 November 2015).
10 November 2015 - Date for ihail authorisation decision extended
The ACCC has extended the date for making a decision on ihail's authorisation application after it received a 'submission from ihail proposing changes to how its smartphone taxi booking app will operate'. Comments are now invited on the revised proposal by 8 December 2015 with an anticipated final decision in Feb/March 2016. See ACCC media release; see authorisation register.
9 November 2015 - ACCC accepts SeaLink undertaking
The ACCC has 'accepted an undertaking from SeaLink Travel Group as part of its acquisition of Transit Systems Ferries Group', notwithstanding the fact that the acquisition itself 'does not raise competition issues'. See ACCC media release.
9 November 2015 - Commentary on ACCC/NDRC MOU
Emma White has published a piece on the recent MOU between the ACCC and China's NDRC (National Development and Reform Commission of the PRC) which provides for information sharing and cooperation in relation to competition enforcement, particularly in relation to cartels. See, Emma White, 'Mounting a coordinated approach to enforcement' (In Competition, 9 November 2015).
9 November 2015 - Liability for cartel facilitators
James Gould recently published an item on recent developments on liability for cartel facilitators in Europe and Australia - see James Gould, 'Recent developments on liability for cartel facilitators' (In Competition, 30 October 2015)
9 November 2015 - Sims on digital disruption
ACCC Chairman, Rod Sims, has given an interview to The Australian in which he discusses the proliferation of digital start-ups, like Uber and Airbnb. See 'ACCC chair welcomes digital disrupters' (The Australian, 9 November 2015) for the video (approx 6 minutes). The Chairman also notes in the interview that the ACCC has no competition issues with Coles and Woolworths and that it considers that the s 46 debate has nothing to do with Coles and Woolworths. For the full version of the interview - the lateset in the KGB Podcast series - see Episode 19 on Fair Competition.
9 November 2015 - Regulating unilateral supermarket misconduct
Prof Stephen Corones has a new article out in the latest ABLR on the regulation of unilateral supermarket misconduct as a customer/acquirer of goods and services with particular attention given to ACCC v Coles and the effectiveness of s 46 as a 'consumer protection measure': Stephen Corones, 'Regulating unilateral supermarket misconduct as customer/acquirer of goods and services' (2015) 43 Australian Business Law Review 400
9 November 2015 - ACCC to review Sonic Healthcare's proposed acquisition of Adelaide Pathology Partners
The ACCC has announced it will conduct a public review of Sonic's proposed acquisition of Adelaide Pathology Partners, noting that 'the position of Sonic and APP as two of the four biggest suppliers of pathology services in South Australia' means the focus of the investigation will be on 'whether the removal of APP as a competitor would substantially lessen competition between pathology service providers in South Australia'. Responses to a market inquiries letter are due by 13 November. The ACCC has not posted an expected decision date given it anticipates the proposed acquisition may be completed before the ACCC can finalise its review. See ACCC media release. See merger register.
7 November 2015 - Durie on ACCC's merger SOI's
John Durie's latest column discusses the ACCC's recent succession of merger SOIs, most recently the proposed Recall-First Mountain merger - see John Durie, 'ACCC waves red flag over Recall-First Mountain merger deal' (The Australian, 6 November 2015).
7 November 2015 - Telstra appeals ACCC pricing decision
Telstra has appealed the ACCC's recent fixed-line pricing decision to the Federal Court. See David Ramli, 'Telstra to fight ACCC price cuts in the Federal Court' (SMH, 6 November 2015) and Mitchell Bingemann, 'ACCC, Telstra on collision course' (The Australian, 6 November 2015).
5 November 2015 - Sims on media laws, IP and recent ACCC competition activity
ACCC Chairman, Rod Sims, delivered a speech at the RBB Economics Conference in Sydney this morning. See media release. View speech - 'Promoting innovation through competition'.
5 November 2015 - ACCC releases another Statement of Issues
The latest in a recent swath of SOI releases involves Iron Mountain's proposed acquisition of Recall Holdings. The ACCC's indicated that its 'preliminary view is that the proposed acquisition would raise competition concerns in a number of markets for the supply of physical document management services'. Submissions due by 19 November with announcement expected 15 December. View media release. View merger register.
5 November 2015 - ACCC will not oppose Vocus's proposed acquisition of M2
The ACCC has announced it will not oppose Vocus's proposed acquisition of M2. View media release.
5 November 2015 - China/Australia MOU
The ACCC and the National Development and Reform Commission of the PRC (NDRC) have signed a MOI relating to international cartel investigations which affect Australian and Chinese markets. See media release.
29 October 2015 - Sims: 'How did the light handed regulation of monopolies become no regulation?'
ACCC Chairman, Rod Sims, delivered a speech at the Gilbert + Tobin Regulated Infrastructure Policy Workshop in Melbourne today, calling for a 'return to the approach to regulation of monopoly infrastructure envisaged by the Hilmer Committee' and arguing 'it is wrong to suggest that we should not be concerned about high monopoly pricing of infrastructure because the result is only a pure transfer of economic rent.' View speech. View media release: 'ACCC believes price monitoring for monopoly infrastructure will damage Australia's economy'.
26 October 2015 - Federal Court declares Exclusive Dealing by Calvary
The Federal Court has declared (by consent) that Calvary (the Little Company of Mary Health Care Ltd and Calvary Health Care Riverina Ltd), by adopting by-laws relating to the accreditation of medical practitioners, had engaged in exclusive dealing conduct that was likely to have the effect of substantially lessening competition in the day surgery market in Wagga Wagga. Proceedings were otherwise dismissed, subject to the respondents paying the ACCC's costs in the agreed amount of $100,000. See ACCC media release.
23 October 2015 - ACCC to appoint Chief Economist
In his address to the Competition Law and Economics Workshop this morning, ACCC Chairman, Rod Sims, announced that the ACCC would 'shortly' be appointing a Chief Economist. View speech.
23 October 2015 - Sims opens competition conference
ACCC Chairman, Rod Sims, this morning gave the opening address at the 13th annual Competition Law and Economics Workshop in Adelaide, now co-hosted by the ACCC in conjunction with the University of South Australia. View speech. View ACCC media release.
23 October 2015 - ACCC issues SOI on proposed acquisition of Baker Hughes by Halliburton
The ACCC this morning issued a Statement of Issues on the proposed acquisition of Baker Hughes by Halliburton. The ACCC has expressed concern that the acquisition would result in the merged entity being one of only a small number of suppliers that could service the relevant markets' and particular concern 'in relation to the supply of complex or high-risk projects, such as off-shore drilling projects'. View media release. View merger register.
23 October 2015 - ACCC proposes to deny authorisation to Cotton Shippers Association
In a draft determination released this morning, the ACCC proposes to deny authorisation to Cotton Shippers Association 'for coordination between its merchant members to change the way the industry classes cotton for contracts between growers and merchants.' View media release. View authorisation register.
Competition Policy Review (Harper)
Misuse of market power
The decision in CFMEU has cast doubt on the ability of the ACCC to negotiate 'agreed penalties' with respondents to proceedings under the CCA. Special leave to appeal to the High Court was granted and the appeal was heard by the full bench on 13 October 2015. Decision reserved.
Cartels and agency arrangements
The 2013 arguably inconsistent outcomes in the ANZ and Flight Centre cases in 2013 led to some uncertainty about the circumstances in which agents may be considered in competition with their principals for purposes of the cartel laws. The appeal decisions in both cases were handed down on 31 July 2015.
Resale Price Maintenance
ACCC takes on Informed Sources
The ACCC has instituted proceedings against Informed Sources and several petrol retailers alleging contravention of s 45.
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,