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Easter eggs

19 October 2018 - No special leave for Yazaki either ...

Yazaki has been refused special leave to appeal the Full Federal Court's decision ordering it to pay $46m for cartel conduct.

This comes on the same day that the High Court refused special leave for the ACCC in its misuse of market power/exclusive dealing case against Pfizer (no ACCC media release on that one yet ... (update: media release published around 12:30pm: ACCC media release on Pfizer)).

You win some ... you lose some.

Earlier this year (8 August) the High Court refused special leave for Prysmian in relation to a cartel finding against it on the basis that the application would 'not enjoy sufficient prospects of success to warrant a grant of special leave to appeal'

That makes it three strikes on the competition law special leave applications this year ...


High Court

19 October 2018 - No special leave for ACCC in Pfizer case

The ACCC has been refused special leave to appeal to the High Court in its misuse of market power/exclusive dealing case against Pfizer.

See Piper Alderman, 'ACCC v Pfizer – Special Leave Application - Oct 2018' (19 October 2018)

See also ACCC, 'High Court refuses the ACCC special leave to appeal Pfizer decision' (Media Release, 19 October 2018)


High Court

18 October 2018 - Special leave countdown

It's special leave day tomorrow, with two competition law cases before the High Court.

First up is Yazaki seeking special leave against a decision of the Full Federal Court which imposed the highest ever penalty in a competition law case in Australia ($46m). That is listed for hearing at 9:30 (Canberra time) at Court 2 Parkes Place. Appearing for the applicants is Bret Walker SC, M Borsky QC and T Spencer Bruce. For the ACCC we have Michael O'Bryan QC, D Tynan and R Yezerski.

Next is Pfizer where the ACCC is seeking Special Leave to appeal the Full Federal Court's decision that Pfizer had not engaged in misuse of market power or exclusive dealing in relation to its conduct ahead of the expiry of the patent for its drug, Lipitor. That is listed for hearing in Sydney and is second cab of the rank. Appearing for the ACCC is J Gleeson SC, John Halley SC and C Winnet; for Pfizer we have Noel Hutley SC, S Lawrance and B Hancock.


Annual report - chart with statistics

18 October 2018 - ACCC releases 2017-2018 annual report

In the same week as the House of Representatives Standing Committee on Economcis tabled its report on the ACCC's 2017 Annual Report the ACCC has released its 2017-2018 Annual Report (running to 346 pages).

In the accompanying press release the ACCC highlights the penalties it has imposed in the reporting year - almost $170 million. The press release also includes an infographic (apparently a mandatory accompaniment to annual reports these days), with highlights including the following:

Total penalties from litigated competition matters: AU$120.1m
Total penalties from litigated consumer protection matters: AU$48.7m
Court cases commenced: 18
Immunity applications received: 9
In-depth investigations concluded: 108

Mergers and authorisations
Mergers assessed: 281
Mergers finalised by pre-assessment: 90%
Mergers subject to public or confidential review: 10%
Non-merger authorisation applications assessed: 27

Market studies
Market studies and inquiries 'completed or progressed': 8

Views of the ACCC petrol price cycles webpage: 426,807
Investigation into breaches of industry-specific rules: 17
Monitoring reports: 6 petrol and 6 infrastructure

Infocentre contacts: 290,143
Infocentre small business contacts: 14,315

ACCC websites
ACCC website views: 12.4million (it's possible that was mainly by me ...)
Scamwatch website views: 5.2 million
Product Safety website views: 16.3 million

Notably, the number of exclusive dealing notifications assessed has reduced from 407 in the last report to 268 this time, no doubt driven by the removal of the per se prohibition on third line forcing last November.



18 October 2018 - ACCC will not oppose Cabcharge's acquisition of MTI

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Mobile Technologies International Pty Ltd, finding the acquisition was unlikely to result in Cabcharge 'supplying inferior dispatch systems or withholding technology features from rival networks'

View ACCC media release, 'ACCC will not oppose Cabcharge’s acquisition of MTI' (18 October 2018)

View Merger Register 64813


Parliament House Australia

16 October 2018 - House of Rep's report on ACCC report ...

The House of Representatives Standing Committee on Economcis has tabled its report on the ACCC's 2017 Annual Report.

The Chair's foreward notes that the ACCC is taking a more proactive approach to financial sector issues and now 'has a permanent role in monitoring the banks on competition matters [through the Financial Services Unit], enabling the regulator to play a competition champion role.'

See House of Representatives, 'Review of the Australian Competition and Consumer Commission Annual Report 2017' (15 October 2018)

See ACCC & AER annual report 2016-17


Binary code

15 October 2018 - Sims: 'Data economy drives dynamic changes'

ACCC Chair, Rod Sims, delivered a speech in Sydney today on the local and global issues in regulating the data economy:

See media release.

See speech: Rod Sims, 'Gilbert & Tobin seminar: the data economy' (Sydney, 15 October 2018)

See also: Ry Crozier, 'ACCC worries hyperscalers' big data troves reinvent competition woes' (itnews, 15 October 2018) and James Riley, 'ACCC sharpens data focus' (InnovationAus.com, 18 October 2018).


Piggy banks

14 October 2018 - Time to 'unleash' the ACCC on the banks?

The AFR's Patrick Durkin observes that there is growing pressure, from both sides of federal politics (and the Greens) to give the ACCC a bigger role in relation to banking regulation.

See: Patrick Durkin, 'Pressure builds to unleash ACCC on the banks' (AFR, 14 October 2018)

See also Mike Taylor, 'ACCC identifies as fin services 'competition champion'' (Money Management, 16 October 2018)


High Court

13 October 2018 - Special leave applications in two competition cases to be heard next week

Two competition law special leave applications up for consideration next week (19 October 2018): Pfizer and Yazaki.

In Pfizer the ACCC is seeking Special Leave to appeal the Full Federal Court's decision that Pfizer had not engaged in misuse of market power or exclusive dealing in relation to its conduct ahead of the expiry of the patent for its drug, Lipitor. That application (S172/2018) is listed for hearing in Sydney PDF file logo.

In Yazaki it is Yazaki that is seeking special leave against a decision of the Full Federal Court which imposed the highest ever penalty in a competition law case in Australia ($46m). That application (A24/2018) is listed for hearing in Canberra PDF file logo.


Digital code

13 October 2018 - UniSA/ACCC workshop

Fascinating discussion on whether competition policy can delivery in the 'new digital age' at this year's UniSA/ACCC workshop.

Nice to catch up with , @Katharine_Kemp and plenty of other competition policy enthusiasts.



9 October 2018 - Baxt memorial lecture

The 9th Annual Baxt Lecture was delivered by Dr David Evans at the Melbourne Law School on Tuesday evening. David's presentation, '' was followed by a panel discussion featuring Dr David Evans, Greg Houston, Dr Katharine Kemp, Dr Stephen King, Associate Professor Sora Park and Lauren Solomon.

View website for a copy of the presentation and some photo's from the event.

See related media, including John Durie, 'Global internet powerhouses 'do a lot of good' (The Australian, 8 October 2018)' (paywall).


Crowd cheering

9 October 2018 - Durie on antitrust popularism

I'm a bit late on this one, for which I shall blame the Australian's paywall, but John Durie penned a topical piece on antitrust popularism recently, discussing whether or not Australian competition policy should look beyond consumer welfare and consider broader policy issues, particularly in relation to merger assessments and other authorisations.

Durie was no doubt prompted by the current US FTC hearings on the subject (which he references in the piece)

If you can get past the paywall you'll find it here: John Durie, 'Should Sims go beyond competition issues?' (The Australian, 21 September 2018) (page 27 of the paper version)


9 October 2018 - Glencore access dispute

The ACCC has finalised its arbitration of a dispute between Glencore and Port of Newcastle Operations (PNO) about terms and conditions for accessing the shipping channel service at the Port of Newcastle (a declared service until July 2031). The ACCC ruled PNO should reduce charges for ships that carry coal for Glencore.

Glencore has welcomed the finding; Glencore has expressed disappointment and has indicated it will appeal.

See ACCC media release.

View determination.

For a detailed discussion see Michael Coutts, Richard Robinson and Matthew Bull, 'ACCC orders Port of Newcastle to reduce charges for Glencore' (Herbert Smith Freehills, 10 October 2018.

Plenty of media including: Perry Williams, 'Regulator sides with Glencore in port dispute' (The Australian, 9 October 2018) (paywall), Matthew Kelly, 'Port of Newcastle to appeal ACCC ruling on how much it can charge ships carrying coal for Glencore' (The Herald, 8 October 2018)



9 October 2018 - Bill introduced to remove certain IP exemptions from CCA

The Government has introduced the Treasury Laws Amendment (2018 Measures No 5) Bill 2018 (yes really, that is what it is called). The Bill was introduced and read for a first time on 20 September 2018.

The summary states that it will 'remove the exemption for conditional licensing or assignment of IP rights such as patents, registered designs, copyright or eligible circuit layout rights from prohibitions on restrictive trade practices.' This will be done by repealing s 51(3) of the Act (as well as the Schedule 1 version). Of course it also introduces a new section (186) to explain how the application of the repeal of s 51(3) will apply. Importantly, the scheduled commencement is six months after Royal Assent, providing a transition period for business.

The repeal of s 51(3) was one of the recommendations of the Harper Review (rec 7). The Explanatory Memorandum refers to the Harper Report and the Productivity Commission's IP Arrangements Inquiry Report (Dec 2016) which also recommended its repeal. It further states:

4.4 IP rights and competition are no longer thought to be in ‘fundamental conflict’. IP rights do not, in and of themselves, have significant competition implications. Rather, competition implications arise in those cases where there are few substitutes or where the aggregation of IP rights may create market power.

4.5 The Commission considered that commercial transactions involving IP rights, including the assignment and licensing of such rights, should be subject to the CCA in the same manner as transactions involving other property and assets.

4.6 The Commission was of the view that at present, the immediate costs and benefits of removing the exemption under subsection 51(3) are finely balanced. However looking ahead, the benefits could rise as the level of licensing and cross licensing increases, especially in pharmaceutical and communications markets.

4.7 The repeal of subsection 51(3) brings Australia into line with other comparable jurisdictions. ...

Thanks to Rob Nicholls for the heads up on this one; with a title like that no wonder didn't capture our immediate attention!

View Bill page for the text of the bill and the EM.



2 October 2018 - ACCC commences inquiry into foreign exchange

The ACCC has commenced an inquiry into foreign currency conversion services. ACCC Chairman, Rod Sims, announced that the ACCC would be 'examining why major companies in Australia, including the big four banks, seem to be able to consistently charge high prices', will consider barriers to entry and will consider the way in which prices are presented to customers, noting that the 'exchange rate you google is not the exchange rate you get from the big four banks'.

An issues paper has been released with submissions due by 22 October 2018. Consumers and small business may also respond to a questionnaire instead of making a full submission.


EGR decision

27 September 2018 - EGR to pay $6m penalty for exclusive dealing

Oakmore (T/A EGR) has been ordered to pay a $6m penalty for engaging in unlawful exclusive dealing. EGR manufactures and supplies building and automotive products and was found to have been knowingly concerned in exclusive dealing with the purpose of substantially lessening competition.

Previously the Federal Court imposed penalties on Palram Australia and Apelite Australia in relaiton to the same matter.


Generic pharmaceuticals

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.


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