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25 July 2017 - ACCC to hold first public hearing into power prices

The ACCC will hold its first public hearing into power prices in Brisbane today as part of its inquiry into national electricity prices, ordered by the Treasurer in March. Several other forums are scheduled over the coming months. The ACCC has also released an overview of the submissions made in response to the issues paper.

See, eg, Cameron Atfield, 'ACCC to hold first public hearing into power prices in Brisbane on Tuesday' (SMH, 23 July 2017).

21 July 2017 - ACCC withdraws injunction application in Tabcorp/Tatts case

The ACCC has withdrawn its application for an injunction to prevent the Tabcorp/Tatts deal proceeding while its application for judicial review is considered. The injunction application was due to be considered by the Federal Court next Thursday. See Sarah-Jane Tasker, 'ACCC withdraws injunction to stop Tabcorp completing Tatts takeover' (The Australian, 21 July 2017).

21 July 2017 - Sims: Open markets must benefit consumers or distrust will grow

ACCC Chairman, Rod Sims, addressed the 2017 Australian Conference of Economists in Sydney today. In his speech he referenced increasing public disillusionment with the market economy and disappointment that the economics profession had not 'been more influential in public policy debates in recent time'. He observed that economists 'who ground their contributions in the facts of everyday life and relax the often abstract assumptions of theory will find an audience more willing to listen'.

See media release. View speech ('Ceteris Paribus, Competition is King' (2017 Annual Conference of Economists, 21 July 2017)).

20 July 2017 - Sims on telco competition

ACCC Chairman, Rod Sims, addressed the Communications Day Unwired Revolution Conference in Sydney today. He claimed there were 'encouraging signs that competition in the sector was healthy' and welcomed the entrance of new participants. See media release. View speech.

13 July 2017 - ACCC releases findings of beer tap investigation

The ACCC has released its findings into an investigation of the contracts of CUB and Lion, following allegations from some craft brewers that they were being locked out of beer taps in certain venues as a result of exclusivity provisions and volume requirements.

The ACCC concluded that the contracts were unlikely to result in a substantial lessening of competition in the markets investigated. However, it notes that it will continue to monitor developments in the market.

See ACCC media release.

12 July 2017 - CrownBet applies for Judicial Review of Tabcorp Ruling

CrownBet, one of the interveners Tabcorp's application for merger authorisation, has filed for judicial review of the Tribunal's decision. This follow's the ACCC's application for judicial review on Monday. See Sarah-Jane Tasker, 'CrownBet joins battle against Tabcorp-Tatts merger' (The Australian, 13 July 2017)

The Federal Court has scheduled a case management hearing for both applications for 9:30am Friday.

10 July 2017 - ACCC appeals Tribunal's Tabcorp ruling

The ACCC has applied to the Federal Court for a judicial review of the Australian Competition Tribunal’s recent Tabcorp/Tatts merger authorisation decision. An appeal on the merits is not available for Tribunal merger authorisation decisions, but the ACCC is seeking judicial review, alleging three reviewable errors, including that the Tribunal erred in its reasoning that 'it could only conclude that the proposed acquisition was likely to result in a detriment if the Tribunal concluded that there would be a substantial lessening of competition’.  

See ACCC Media Release, 10 July 2017. See also my blog piece for further details and links to news and commentary.

7 July 2017 - ACCC/Canadian CB staff exchange

The ACCC has announced that Ms Jeanne Pratt of the Canadian Competition Bureau will be 'acting Executive General Manager of its Merger and Authorisation Review Branch as part of a 12-month interchange' with Mr Rami Greiss taking up the position of Senior Deputy Commissioner, Cartels and Deceptive Marketing Practices Branch at the Canadian Competition Bureau.

The ACCC press release notes that this exchange will 'provide ACCC staff the opportunity to expand their knowledge of international competition regimes and best practices, share their experiences of the Australian regime and for both countries to continue to build their expertise in various areas of competition.'

See ACCC media release. See Canadian Competition Bureau News Release.

4 July 2017 - ACCC to examine Murdoch and Gordon's proposed acquisition of Ten

The ACCC will examine the proposed acquisition of Ten Network by Lachlan Murdoch and Bruce Gordon, which will be contingent on changes to media ownership law. See merger register.

See, eg, Max Mason, 'ACCC to look at Lachlan Murdoch and Bruce Gordon's Ten bid' (AFR, 4 July 2017), Andrew White and John Durie, 'ACCC reviews proposed joint bid for Ten Network' (The Australian, 4 July 2017), Christian Edwards, ''Outflanked': 'Outflanked': Murdoch and Gordon face a race for control of Ten, analyst says' (SMH, 5 July 2017), and AAP, 'ACCC confirms takeover bid for Network Ten by Lachlan Murdoch and Bruce Gordon' (news.com.au, 5 July 2017).

3 July 2017 - ACCC urges small business to review payment surcharges

The ACCC has urged small business owners to prepare for the ban on excessive payment surcharges that will come into operation on 1 September 2017. The law limiting the amount business can charge for the use of certain payment methods (eg, EFTPOS, Visa) came into operation for large businesses last year, but will apply to all business from 1 September 2017. Under the new laws business can only pass on the cost of processing payments (anything exceeding this is considered 'excessive').

The new laws were introduced through the Competition and Consumer Amendment (Payment Surcharges) Act 2016, which inserted a new Part IVC of the CCA, including s55B which provides that a 'corporation must not, in trade or commerce, charge a payment surcharge that is excessive'.

See ACCC media release 'Small business urged to review their payment surcharges' (3 July 2017) and ACCC payment surcharges page.

30 June 2017 - ACCC grants interim authorisation fo collective bargaining with Australia Post

The ACCC has granted interim authorisation for the LPO Group 'and its current and future licensed post office members to  collectively negotiate, enter into and give effect to agreements with Australia Post.' The authorisation is limited to 'licensee payments and commissions as part of the annual payment review, as well as remuneration for any new services introduced by Australia Post'. The ACCC does not consider that the granting of interim authorisation will harm the competitive process or interested parties while full consideration of the application continues. See ACCC media release. See authorisation register.

22 June 2017 - Tribunal publishes judgment in Tabcorp

The Australian Competition Tribunal has published its reasons for decision in the Tabcorp merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1). The reasons run to 255 pages. The ACCC has also provided an initial response indicating that it 'will now consider the reasons for decision published by the Tribunal.' See my case page for further details links to commentary.

22 June 2017 - ACCC will not oppose Cabcharge's proposed acquisition of Yellow Cabs in Queensland

The ACCC has announced it will not oppose the proposed acquisition by Cabcharge of Yellow Cabs (Qld), concluding that the acquisition was unlikely to 'result in Cabcharge foreclosing competition from alternative non-cash payment system providers, as there are a number of alternative systems available and it is drivers who choose which system to use' and that the taxi business is also being 'constrained by the popularity of ridesharing services such as Uber'. View media release. View merger register.

21 June 2017 - Baxt Lecture on Designing Cartel Sanctions

Judge Douglas Ginsburg (Federal US judge on the Court of Appeals for the District of Columbia and Professor of law, George Mason University) delivered the 8th Annual Baxt Lecture at the Melbourne Law School this evening, speaking on 'Designing Cartel Sanctions: A Continuing Debate'. Judge Ginsburg's address focussed on the importance of directing sanctions to the individuals involved in the contraventions, rather than continuing to increase corporate sanctions; the latter, it was argued, both fails to increase deterrence and imposes penalties on shareholders who were not involved in the misconduct and cannot be deterred.

21 June 2017 - Tribunal authorises Tabcorp's proposed acquisition of Tatts Group Ltd

The Australian Competition Tribunal Tribunal has authorised the proposed acquisition of Tatts Group ltd by Tabcorp; reasons for this decision are expected to be published on Thursday. Tabcorp has issues a press release welcoming the decision. See also John Durie, 'Tabcorp’s high-risk strategy pays off as tribunal approves Tatts merger' (The Australian, 20 June 2017) and John Stensholt, 'Tabcorp-Tatts $11b merger gets green light from Competition Tribunal' (AFR, 20 June 2017). See my case page for further details an links.

14 June 2017 - High Court unanimously dismisses air cargo appeals

The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The appeals focus on the meaning of a market 'in Australia'. The High Court's judgment summary states that:

'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia'

View judgment. See High Court case page. See also my case page for links to ealier judgments and commentary. Details to follow.

 

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Hot topics

Competition Policy Review (Harper)

Harper Review

Read moreThe first major review of competition policy in Australia was conducted in 2014-2015 with the final report released on 31 March 2015. The Government has accepted many of the recommendations. A reform bill designed to implement these recommendations was introduced into the House on 30 March 2017; a separate MMP bill has passed the House and is before the Senate.

 

Misuse of market power

Image of market power

Read moreAlways topical, the issue of misuse of market power featured prominently in the Harper Review, with the Panel recommending introduction of an effects test. In March 2016 the Government announced that it would introduce an effects test; a bill was introduced on 1 December 2016 and has (with amendment) passed the House. It is before the Senate.

Another merger authorisation

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Read moreOn 22 June 2017 the Tribunal handed down its decision in Tabcorp's merger authorisation application; the merger was approved. This represents the third successful application for merger authorsation to the Tribunal since it became first instance decision maker in merger authorisation claims in 2007; there have been no unsuccessful applications. The ACCC and CrownBet have applied for judicial review of the Tribunal's decision.

 

Cartels and agency arrangements

TPA cover

Read moreThe 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. The ACCC successfully appealed the Flight Centre decision to the High Court (decision of 14 December 2016)

First criminal cartel case

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Read moreOn 14 July 2016 the Commonwealth Director of public prosecutions filed an indictment against Nippon Yusen Kabushiki Kaisha in the Federal Court of Australia. This represents the first case alleging a contravention of the criminal cartel laws introduced in Australia in 2009. NYK pleaded guilty to criminal cartel conduct on 18 July 2016.

 

Market in Australia

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Read moreIn June 2017 the High Court unanimously dismissed appeals from Air NZ and PT Garuda Indonesia relating to the air cargo cartel; the focus of the appeal was on whether the parties' conduct occurred in a 'market in Australia', as was then required in relation to price fixing. The High Court unanimously held that there was a market in Australia.

 

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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