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Latest Australian Competition Law News and Commentary

Easter eggs

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!

 

Lady Justice holding scales of justice

18 July 2018 - Country Care committal mention postponed

The criminal cartel hearing (Committal Mention) against Country Care has been posponed until August 15 at 10am in Melbourne Magistrates' Court:

 

Blood cells

12 July 2018 - ACCC institutes cartel proceedings against 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)

 

Power lines

11 July 2018 - ACCC releases energy report

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).

 

Truck mining

6 July 2018 - ACCC bid-rigging case against Cascade Coal dismissed

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)

 

Digital platform icons

3 July 2018 - Sims: approach to digital platforms 'one of the defining questions of our age'

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.

 

Hearing - microphone

28 June 2018 - House Standing Committee on Economics Review of ACCC Annual Report 2017

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.

 

 

Air NZ plane

27 June 2018 - Air NZ penalised $15m for price fixing

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.

 

Pfizer appeal

25 June 2018 - ACCC seeks special leave to appeal in Pfizer

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).

 

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