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Latest Australian Competition Law News and Commentary

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15 August 2019 - ACCC raises concerns about Emergent Cold's proposed acquisition of Oxford

The ACCC has released a statement of issues outlining preliminary competition concerns about Emergent Cold's proposed acquisition of Oxford. The merger would reduce the number of large Victorian suppliers of cold storage services from four to three.

See ACCC, 'Concerns about Emergent, Oxford cold storage deal' (Press Release, 15 August 2019) and Emergent/Oxford merger register.

 

Digital platforms

13 August 2019 - Rod Sims speaks to Melbourne Press Club on the Digital Platforms Inquiry

ACCC Chair, Rod Sims, delivered an address to the Melbourne Press Club about the Digital Platforms Inquiry. The focus is, naturally enough, recommendations relating to media, but it includes some broader discussion about the core recommendations and about ongoing investigations into Facebook and Google.

See Rod Sims, 'The Digital Platforms Inquiry: Melbourne Press Club speech' (Melbourne Press Club, 13 August 2019). See accompanying ACCC media release.

 

Cheese

8 August 2019 - ACCC raises concerns about Saputo's proposed acquisition of Lion Dairy & Drinks' cheese business

The ACCC has published a statement of issues outlining preliminary competition concerns about Saputo's proposed acquisition of Lion Dairy & Drinks' cheeses business. Submissions invited until 22 August 2019. Proposed final announcement 26 September 2019.

View ACCC media release and merger public register for more detail.

See also Darren Gray, 'Lion Dairy and Drinks Pty Ltd's' (SMH, 8 August 2019)

 

Coal mining

8 August 2019 - ACCC raises concerns about Bis Industries' proposed acquisition of Cougar

The ACCC has published a statement of issues outlining preliminary competition concerns about Bis Industry Holdings Ltd's proposed acquisition of Cougar Mining Group Pty Ltd. Submissions invited until 23 August 2019. Proposed final announcement 24 October 2019.

View ACCC media release and merger public register for more detail.

 

Data black hole

7 August 2019 - Why privacy matters - concealed data practices and competition law

Katharine Kemp's new research paper is now available to download at SSRN:

'Concealed Data Practices and Competition Law: Why Privacy Matters' (UNSW Law Research Paper No 19-53, 6 August 2019)

 

Online shopping keyboard

5 August 2019 - ACCC does not oppose Wesfarmers Ltd proposed acquisition of Catch

The ACCC has announced it will not oppose the proposed acquisition of Catch Group by Wesfarmers.

See ACCC, 'ACCC won’t oppose Wesfarmers’ proposed acquisition of Catch' (5 August 2019)

 

Cargo

2 August 2019 - K-Line convicted and fined for criminal cartel conduct

Kawasaki Kisen Kaisha Ltd (K-line) has been convicted of criminal cartel conduct and ordered to pay a fine of $34.5million.

On 5 April 2018 K-Line pleaded guilty to cartel conduct and a sentencing hearing was held on 15 November 2018 before Justice Wigney.

The maximum penalty available was $100m, with discounts given for an early guilty plea and cooperation. It is the second criminal fine imposed for cartel conduct, the first was for $25m against NYK (in relation to the same cartel) in 2017.

See my K-line page.

View ACCC media release.

View Federal Court judgment.

 

Digital platforms

1 August 2019 - Consultation on Digital Platforms Inquiry final report

Yes, another consultation - the Government now inviting submissions on the final report of the Digital Platforms Inquiry.

See ACCC Digital Platforms Inquiry consultation page for further details.

 

Solar energy panels

1 August 2019 - ACCC proposes to authorise New Energy Tech consumer code

The ACCC is proposing to authorise a new consumer code for retailers of certain energy products and services.

See ACCC media release for further details.

 

Digital platforms

31 July 2019 - Digital Platforms Report - mlex podcast

James Panichi and Laurel Henning have put together a podcast with a rundown of the 23 recommendations in the ACCC's Digital Platforms Report.

See 'Australia Finalises Landmark Facebook, Google Report' (mlex podcast, 31 July 2019) (22.57mins)

 

sheep

29 July 2019 - ACCC consults on proposed Landmark divestitures

The ACCC is consulting on a proposed undertaking offered by Nutrien in relation to its proposed acquisition of Ruralco which would require Landmark to divest three rural merchandise stores.

See ACCC media release for further details.

 

Digital platforms

26 July 2019 - Digital Platforms Report released

The Digital Platform Report has now been released to the public.

It can be found on the ACCC website.

Treasurer, Josh Frydenberg, stated that the Government 'accepts the ACCC’s overriding conclusion that there is a need for reform - to better protect consumers, improve transparency, recognise power imbalances and ensure that substantial market power is not used to lessen competition in media and advertising services markets' and further that the Government 'accepts that there is a need to develop a harmonised media regulatory framework'.

Before a detailed Government response is provided a further consultation process will take place. It will run for 12 weeks, after which the Government intends to release its response (by the end of 2019).

See the Treasurer's media release.

See also ACCC media release on the final report.

Further details to follow on Digital Platforms page.

 

Digital platforms

26 July 2019 - Report on its way

The Digital Platform Report is being released today ...

See Digital Platforms page for more detail.

The Australian reports that the government will delay a formal response because it requires more time for 'stakeholder consolation'. Katherine Kemp has expressed hope that this is a typo, but perhaps not ...

See, eg, Fergus Hunter and Jennifer Duke, 'Government to hand down landmark tech report amid global anticipation' (SHM, 25 July 2019), Simon Benson and Leo Shanahan, 'Tech giants to face shake-up' (The Australian, 26 July 2019, p 8) and Jack Derwin, 'The Australian government is dropping its big report into big tech today — here’s what it could mean for Google and Facebook' (Business Insider, 26 July 2019)

 

Storage silo - not Graincorp's

25 July 2019 - ACCC raises concerns about ANZ Terminals, Graincorp deal

The ACCC has released a statement of issues raising concerns about ANZ Terminals' proposed acquisition fo GrainCorp Liquid Terminals Australia Pty Ltd.

See ACCC media release.

See merger register.

See also Mathew Dunckley, 'ACCC pumps brakes on GrainCorp's $350m terminal deal' (SMH, 25 July 2019)

 

Corporate handshake

4 July 2019 - Stephen Ridgeway appointed

Former King & Wood Mallesons partner, Stephen Ridgeway, has been appointed as a Commissioner at the ACCC for a period of five years.

Mr Ridgeway replaces Mr Featherson who stepped down this month after a five year term.

See ACCC media release.

 

Digital platforms

30 June 2019 - ACCC hands digital platforms inquiry report to the government

The ACCC has handed the digital platforms inquiry report to the government.

It is not yet known when the report will be released.

 

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

27 June 2019 - ACCC appeals Pacific National - Aurizon merger decision

The ACCC has lodged an appeal against the Federal Court's decision to dismiss the ACCC's proceedings in relation to Pacific National's acquisition of the Acacia Ridge Terminal in Brisbane.

The Federal Court had held that the merger would have substantially lessened competition but for a behavioural undertaking offered by Pacific National on the final day of the hearing.

View media release.

View my case page.

 

Handshake with car in background

24 June 2019 - ACCC has preliminary concerns about AP Eagers' proposed acquisition of AHG

The ACCC has indicated it has preliminary concerns about AP Eagers' proposed acquisition of shares in Automotive Holdings Group. The ACCC is currently assessing an application for merger authorisation from AP Eagers.

Further market feedback is sought by 3 July 2019. A final decision is expected by 26 July 2019.

View media release.

View merger authorisation register.

 

Gaval

22 June 2019 - Brent Fisse on Aurizon Behavioural Undertaking

Brent Fisse has posted a critique of the Aurizon Behavioural Undertaking: see Brent Fisse, Aurizon Behavioural Undertaking - Critique (22 June 2019).

Spoiler: Fisse concludes that:

'Undertakings like that accepted in the Aurizon decision seem unsatisfactory. They rely heavily on the discretion of dominant market participants and little ont eh constraint of market forces. They lack monitoring and enforcement by the ACCC. ...'

 

IP protection

21 June 2019 - ACCC releases draft guidelines on repeal of s 51(3)

The ACCC has released draft guidelines on the repeal of ss 51(3) for consultation. The repeal of the IP rights exemption in this provision will take effect from 13 September 2019.

View media release.

View draft guidelines on the consultation hub.

 

Goats

13 June 2019 - ACCC revokes RPM notification

The ACCC has issued a final notice revoking a resale price maintenance notificatoin lodged by Meredith Dairy, with Commissioner Mick Keogh saying:

"In our view, the proposed conduct would have led to consumers paying higher prices for Meredith Dairy’s goat cheeses, and would have limited the ability of delicatessens and other small retailers to compete with big chains ... In turn, it would have meant less competitive pressure on major supermarket chains to offer low prices."

This follows the ACCC's draft proposal to revoke on 1 May 2019.

See media release.

See RPM register.

 

sheep

13 June 2019 - ACCC raises concerns about Landmark's proposed acquisition of RuralCo

The ACCC has released a Statement of Issues raising preliminary concerns about Landmark's proposed acquisition of Ruralco.

Submissions from interested parties are due by 27 June 2019 with a final decision scheduled for 15 August.

See media release.

See merger register.

See also, Brad Thompson, 'ACCC casts cloud over Ruralco takeover' (AFR, 13 June 2019) and 'ACCC scrutinises proposed Landmark/Ruralco deal' (Sheep Central, 13 June 2019).

 

Shaking hands

13 June 2019 - ACCC does not oppose Liberty's proposed acquisition of Steelforce

The ACCC has announced it will not oppose the proposed acquisition of Steelforce Holdings Pty Ltdby GFG Alliance Australia.

See media release.

See merger register.

 

Wave goodbye

11 June 2019 - Godfather leaves ACCC ...

John Durie has an piece in today's Australian discussing the imminent departure of ACCC Mergers Commissioner, Roger Featherston, after seven years at the ACCC, five as Commissioner.

Roger FeatherstonSee John Durie, 'Competition 'Godfather' Roger Featherston leaves ACCC' (The Australian, 11 June 2019) (subscription only - or paper version: John Durie, ''Godfather' leaves ACCC' (The Australian, 11 June 2019, page 25))

 

 

People work together - hands linked

6 June 2019 - ACCC seeks feedback on collective bargaining plan for small businesses

The ACCC is seeking views on a proposal to implement a class exemption to allow small business to collectively negotiate with suppliers and processes and for franchisees and fuel retailers to collectively negotiate with their franchisor or fuel wholesaler. Although proposed to be subject to turnover limits, the ACCC suggests this would cover around 98.5% of Australian businesses.

The ACCC has released:

See ACCC, 'Feedback sought on collective bargaining plan for small businesses' (ACCC media release, 6 June 2019).

 

Microphone

4 June 2019 - Podcast on mergers in Australia

mlex's James Panichi and Laurel Henning have released a new podcast the Australia's merger laws - focussing on Pacific National but also discussion Vodafone/TPG and the move to change merger laws in relation to digital mergers.

Listen or download here:

M&A law at heart of Australian competition regulator’s courtroom woes (mlex, 4 June 2019)
'Australian merger law is under renewed scrutiny as the country’s competition regulator fights to make its voice heard by Federal Court judges. The Australian Competition & Consumer Commission and Federal Court of Australia are at odds when it comes to trusting undertakings offered up by companies seeking approval for merger deals and the ACCC’s mistrust is leading it to consider recommending carving out new M&A measures for digital platforms this month.'

 

Garuda

30 May 2019 - Garuda ordered to pay $19 for its role in the global air cargo cartel

The Federal Court has ordered Garuda to pay penalties of $19 million for price fixing in relation to fees and surcharges for air freight services.

The penalty ruling comes almost 10 years after the matter was first filed in the Federal Court.

See ACCC, 'Garuda ordered to pay $19 million for price fixing' (Media Release, 30 May 2019).

See Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786

 

 

Broadband

27 May 2019 - Vodafone launches court action following ACCC's opposition of proposed merger with TPG

On Friday (24 May) Vodafone launched a court action against the ACCC following the ACCC's announcement earlier in the month that it would oppose the proposed merger with TPG.

See case page for more details, including links to relevant media.

For the ACCC review of the proposed merger see:

ACCC Merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA))

 

Rod Sims: source ACCC webste

25 May 2019 - Sims speaks on the challenges of dealing with strategic acquisitions of nascent firms

ACCC Chair, Rod Sims, spoke at today's Competition Law Conference on the challenges of analysing competitive effects of conduct of multi-sided platforms and the challenges digital platforms pose for the effective application of merger laws.

See ACCC, 'Digital giants' buy-up of start-ups poses challenges for merger laws' (Media Release, 25 May 2019)

See Rod Sims, 'Address to the 2019 Competition Law Conference' (Speech, Competition Law Conference, Sydney, 25 May 2019)

See also Paul Sakkal, 'ACCC calls for laws to block Facebook and Google eliminating competitors' (SMH, 25 May 2019) and Paul Wallbank, 'ACCC head warns Facebook and Google over merger activities ahead of final Digital Platforms report' (Mumbrella, 26 May 2019).

 

Laundry

24 May 2019 - Full Federal Court dismisses ACCC appeal in laundry detergent case

The Fulll Federal Court (Justice Middleton, Justice Perram and Justice Bromwich) has dismissed an appeal by the ACCC against a finding that there was insufficient evidence to find PZ Cussons had engaged in cartel conduct in relation to the supply of certain laundry detergents.

See ACCC, 'Appeal in laundry detergent cartel case unsuccessful' (Media Release, 24 May 2019) (reasons for judgment not yet available)

The original proceedings arose following an immunity application by Unilever. Colgate and Woolworths admitted involvment; Colgate was ordered to pay penalties of $18m and Woolworths was ordered to pay $9m.

See my case page for details.

 

Laundry

23 May 2019 - Judgment to be delivered in ACCC v Colgate-Palmolive tomorrow

The Federal Court has listed ACCC v Colgate-Palmolive for judgment tomorrow. The case was heard in August last year before Justice Middleton, Justice Perram and Justice Bromwich; judgment was reserved on 22 August 2018.

The case relates to the ACCC's appeal against the decision involving PZ Cussons Australia Pty Ltd. The ACCC alleged Cussons had engaged in cartel conduct with other laundry detergent manufacturers in relation to the supply of certain laundry detergents. In December 2017 the Federal Court dismissed the ACCC's claim. The ACCC subsequently appealed the decision.

The original proceedings arose following an immunity application by Unilever. Colgate and Woolworths admitted involvment; Colgate was ordered to pay penalties of $18m and Woolworths was ordered to pay $9m.

See my case page for details.

 

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

15 May 2019 - Court dismisses ACCC's proceedings against Pacific National and Aurizon

The Federal Court has dismissed the ACCC's proceeding against Pacific National and Aurizon, relating to control of Acacia Ridge Terminal.

The Court indicated it would have found the proposed acquisition had the likely effect of substantially lessening competition had it not been for an undertaking offered to the Court on the last day of the hearing. The ACCC had rejected a similar undertaking proposed during its review process on the basis that 'it would not protect potential entrants from discriminatory conduct in the terminal’s day-to-day operations under Pacific National ownership or the operating agreement.'

The ACCC is considering the judgment. See my case page.

See

See also Jenny Wiggins, ''We have a problem': ACCC's Rod Sims says merger laws need a rethink' (AFR, 15 May 2019), Patrick Hatch, ''We’ve got a problem': Sims questions laws after rail go-ahead' (AFR, 15 May 2019), 'Is the mergers test broken?' (Chanticleer, AFR, 16 May 2019) and Charles McConnell, 'Court accepts rail remedy that ACCC rejected' (GCR, 15 May 2019).

 

 

Broadband

8 May 2019 - ACCC opposes proposed TPG-Vodafone merger

The ACCC had announced that it had decided to oppose the proposed merger between TPG Telecom Ltd and Vodafone Hutchison Australia Pty Ltd. In its media release the ACCC highlighted the already 'very concentrated mobile servies market' and concentrated 'fixed broadband market' and stated that it considered the prposed merger would 'reduce competition and contestability in this sector'; in particular it would 'precluded TPG entering as the fourth mobile network operator in Australia'.

The parties have indicated they will challenge the decision. James Panichi (mlex), reports that Rod Sims is 'seriously relaxed' at the prospect of the decision to oppose being challenged in the Federal Court: view James Panichi tweet.

View ACCC, 'ACCC opposes TPG-Vodafone merger' (Media release, 8 May 2019).

View merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA)).

See also James Fernyhough, 'ACCC blocks Vodafone, TPG merger' (AFR, 8 May 2019) and Jennifer Duke, ''Embarrassing' blunder: ACCC blocks Vodafone and TPG Telecom merger' (SMH, 8 May 2019) and Stephen Letts, 'TPG share price crashes as ACCC blocks Vodafone merger' (ABC, 8 May 2019).

 

Image representing future and technology

1 May 2019 - The joys of ex ante assessment

mlex reporter, James Panichi, has piece out today discussing 'future-focused' regulation to keep up with tech mergers - an in particular, to deal with acquisitions of 'potential competitors'.

See, James Panichi, 'Digital giants look for clues in Australian wrangle over future-focused regulation' (mlex market insight, 1 May 2019)

 

Goats

1 May 2019 - ACCC proposes to revoke RPM notification

The ACCC has issued a draft notice proposing to revoke a resale price maintenance notification lodged by Meredith Dairy. The RPM conduct notified would prevent retailers selling its goat cheese products below a specified price.

ACCC Commissioner, Roger Featherston, said that the ACCC did not consider the conduct would result in a net public benefit.

See ACCC, 'Meredith Dairy proposal to set minimum prices raises competition concerns' (1 May 2019)

See ACCC, 'Meredith Dairy Pty Ltd' (Notification Register)

See also, Anthony Colangelo, 'Meredith Dairy cheesed off with shops discounting its product' (The Age, 1 May 2019)

 

Handshake with car in background

1 May 2019 - ACCC reviews first merger authorisation application

The ACCC is assessing its first merger authorisation application since reclaiming the power to do so following the Harper reforms. The application involved a proposed acquisition by AP Eagers Limited of Automotive Holdings Group Limited (the two largest automative retailers in Australia)

See ACCC, 'ACCC reviews first merger authorisation application' (1 May 2019)

See ACCC, 'AP Eagers Limited proposed acquisition of Automotive Holdings Group Limited' (Merger Register)

See further Simon Evans, 'AP Eagers moves up a gear in AHG takeover' (AFR, 1 May 2019)

 

Corporate handshake

1 May 2019 - Too many corporate mergers?

Professor Caron Beaton-Wells has an opinion piece in today's The Conversation discussing whether too many corporate mergers are harming consumers.

See Professor Caron Beaton-Wells, 'Are too many corporate mergers harming consumers? We won’t know if we don’t check' (The Conversation, 1 May 2019)

 

Digital platforms

1 May 2019 - Disrupting competition law: do digital markets require new legal tools?

What does the growth of digital markets mean for competition law and policy? See Professor Caron Beaton-Wells, 'Disrupting competition law: do digital markets require new legal tools?'

Keep an eye out for more information on this topic at the CPI conference page for yesterday's 'Dynamic Competition in Dynamic Markets: A Path Forward' conference. For those that could not attend or missed the live stream, you'll find some more detail here.

 

 

23 April 2019 - Panichi: The revenge of Billy Hughes

James Panichi has published an article on Australia's new criminal cartel laws, including discussion of the first criminal prosecution against individuals, recently committed for trial in the Fedearl Court. A must read for those interested in Australia's cartel laws.

See James Panichi, 'The revenge of Billy Hughes' (Inside Story, 23 April 2019).

 

Criminal investigation cooperation - crime scene tape

15 April 2019 - Interagency cooperation agreement between ACCC and FBI

The ACCC and US FBI have signed a new memorandum of cooperation (MOC) to 'strengthen the agencies' joint efforts in combating cartels and other anti-competitive behaviour'.

The MOC 'provides for the exchange of expertise and staff between the two agencies to enhance work in the detection, investigation and prosecution of criminal competition offences'.

See ACCC, 'ACCC and FBI sign inter-agency cooperation agreement' (15 April 2019)

 

Exchange rates

11 April 2019 - Charges laid in relation to alleged forex price fixing cartel

Criminal cartel charges have been laid 'against a money tranfer business and five individuals for allegedly fixing the Australian dollar / Vietnamese dong exchange rate and fees they charge their customers'. This relates to exchange rates and fees charged between 2011 to 2016.

Charges were filed in the Magistrates' Court of Victoria. The committal mention has been set for July 18.

See ACCC, 'Charges laid against alleged forex price fixing cartel' (Media Release, 11 April 2019).

See also:

 

Brain thinking

9 April 2019 - ACCC preparing guidelines following removal of IP exemption

The ACCC has advised that it is drafting guidelines on the application of Part IV of the CCA to intellectual property following the removal of the exemption in s 51(3) that will commence on 13 September 2019.

See ACCC update.

 

Microphone

5 April 2019 - Caron Beaton-Wells appointed to Australian Competition Tribunal

Treasurer, Josh Frydenberg MP, today announced the appointment of Professor Caron Beaton-Wells as a lay member of the Australian Competition Tribunal for a period of five years.

Professor Beaton-Wells is Director of the Competition Law and Economics Network and the Global Competition and Consumer Law Program at the University of Melbourne. She will join Mr RF Shogren, Mr R Steinwell, Dr D Abraham and Prof K Davis as the other lay members of the Tribunal which is presided over by Justice John Middleton.

See Josh Frydenberg MP, 'Appointment to the Australian Competition Tribunal' (Media Release, 5 April 2019)

See Australian Competition Tribunal website.

 

Spreadsheet and calculator representing budget

4 April 2019 - ACCC's budget

The Treasury Portfolio budget statement on the ACCC is available here (PDF).

The papers show total departmental resourcing up from $250.7 million to $285.5 million and average staffing numbers up from 964 to 1,022 (total new departmental appropriations up from $210m to $235.1m).

Expenditure in relation to outcomes and planned performance is set out from page 83 of the document (the document itself is 24 pages, with numbering forming part of a broader portfolio document).

Outcome 1: Lawful competition, consumer protection, and regulated national infrastructure markets and services through regulation, including enforcement, education, price monitoring and determining the terms of access to infrastructure services.

Performance criteria for outcome 1 is set out in Table 2.2 and includes:

  • Target of 6 competition enforcement interventions (court proceeding commenced, s 87B undertaking accepted, admin resolutions)
  • Target of 80% of merger matters considered finalised by pre-assessment
  • Target of 100% of authorisation applications assessed within statutory timeframes
  • Target of 40 Australian Consumer Law enforcement interventions
  • [various other consumer, regulatory and monitoring targets]
  • Target of 3 completed market studies and inquiries.

 

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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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