Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 5)
 FCA 294 (5 April 2013)
Viscas was the third respondent in an action alleging price fixing. Viscas admitted conduct - in particular, it admitted that:
'... in September 2003, it reached an anti-competitive arrangement with other Japanese and European suppliers of land cables in relation to an invitation to tender issued by Snowy Hydro Limited. The terms of the arrangement were that:
- Of the parties to the arrangement who submitted a tender, the tenderer with the lowest price would be one of the European suppliers; and
- The European suppliers would decide between themselves who would submit the lowest price.
Viscas acknowledged to the Court that this arrangement arose out of an overarching arrangement in relation to the allocation of projects involving those Japanese and European suppliers of land cables.' (ACCC Press release)
The ACCC and Viscas agreed on orders to be made, including for a pecuniary penalty. Justice Lander accepted the penalty agreed between the parties was within the appropriate range. Justice Lander also 'made orders restraining Viscas from engaging in similar conduct for a period of 3 years and requiring it to pay a contribution of $50,000 towards the ACCC’s costs.' (ACCC Press release)
Proceedings are continuing against two foreign corporations, Prysmian Cavi e Sistemi Energia SRL, and Nexans SA.
Justice Lander noted that the conduct was 'very serious' involving 'a deliberate course of conduct by engaging in anti-competitive behaviour at the expense of customers in that market' (para 34). He also noted that since the proceedings were instituted Viscus 'has endeavoured to introduce a culture of compliance' including introducing 'the Viscas Anti-Trust Compliance Manual' (para 38) and 'has cooperated with ACCC to the extent that it has admitted its contravention and reached the agreement' (para 39), meaning prosecution against them is no longer required 'which is to the advantage of the public generally and to ACCC, and to the Court' (para 40). Taking that into consideration his Honour concluded that the agreed penalty was 'within the appropriate range'. His Honour then ordered (para 45):
1. Viscas be restrained, for a period of 3 years form the date of these orders, from:
1.1 making any contract or arrangement or arriving at any understanding with one or more competitors for the supply of land cables to customers in Australia, which contains a provision:
1.1.1 which has the purpose, effect or likely effect of fixing, controlling or maintaining (or providing for the fixing, controlling or maintaining of) the price at which any party to the contract, arrangement or understanding, or any related body corporate or agent, will supply land cables to customers in Australia (other than a contract directly with a competitor who is a customer or agent, for supply to that customer or by that agent); or
1.1.2 which has the purpose of preventing, restricting or limiting the supply of land cables in Australia to particular persons or classes of persons, or to particular persons or classes of persons in particular circumstances or on particular conditions, by any party to the contract, arrangement or understanding, or any related body corporate or agent; and
1.2 giving effect to such a provision; unless
1.3 the conduct referred to in 1.1 and 1.2 is authorised under section 88 ... or any other Australian statute in accordance with section 51 of the Act; or
1.4 the contract, arrangement or understanding referred to in 1.1 is for the purpose of a joint venture for the supply of land cables, which joint venture is carried on jointly by all parties to the contract, arrangement or understanding, within the meaning of s 44ZZRP of the Act.
2. Viscas pay to the Commonwealth of Australia, in respect of its conduct of entering into an arrangement with one or more of its competitors containing provisions:
2.1 which had the purpose, effect or likely effect of fixing, controlling or maintaining (or providing for the fixing, controlling or maintaining of), the prices for land cables to be supplied to Snowy Hydro Limited; and
2.2 which had the purpose of preventing, restricting or limiting the supply of land cables on particular conditions by those competitors to Snowy Hydro Limited,
in contravention of the Act, a pecuniary penalty in the amount of $1,350,000, such penalty to be paid within 28 days of the date of these orders.
3. Viscas pay a contribution to the Applicant’s costs of and incidental to these proceedings, in the agreed amount of $50,000, within 28 days of the date of these orders.
4. The proceedings against Viscas otherwise be dismissed.
Decision on AustLII
ACCC v Prysmian Cavi E Sistemi Energia SRL (No 5)  FCA 294 (5 April 2013)