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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 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).




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)



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.



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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