Competition Law News |
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Relocation of competition law news
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News post-October 2019 can be found at
Australian Competition Law News
October 2019
1 October 2019 - Judgment reserved in Vodafone/TPG case
The trial in the Vodafone/TPG merger case has concluded and judgment reserved. A decision is not expected until at least February 2020.
See case page for more details, including links to relevant media.
September 2019
30 September 2019 - Revised cartel immunity and cooperation policy commences tomorrow
Commencing 1 October 2019 the ACCC immunity and cooperation policy for cartel conduct sets out the ACCC's approach to immunity applications and how cooperation will be recognised.
See ACCC immunity & cooperation policy for cartel conduct - October 2019.
30 September 2019 - Sims speech: The dangers of monopolists without constraints
ACCC Chairman, Rod Sims, has addressed the Australasian Transport Research Forum today, speaking on a range of subject issues.
See ACCC, 'The dangers of monopolists without constraint' (Media release, 30 September 2019) and Rod Sims, 'ACCC perspectives on transport issues' (address at the Australasian Transport Research Forum, 30 September 2019).
26 September 2019 - ACCC does not oppose Saputo cheese deal with Lion
The ACCC 'will not oppose the proposed acquisition of Lion Dairy & Drinks' Tasmanian-based cheese business by Saputo Dairy Australia', finding that on balance it will not be likely to have the effect of substantially lessening competition.
See ACCC, 'Saputo cheese deal with Lion not opposed' (Media Release, 26 September 2019) and Saputo Dairy Australia Pty Ltd - Lion Dairy and Drinks Pty Ltd's cheese business (Merger Register).
26 September 2019 - ACCC raises preliminary concerns over sale of RMS Tasmanian forestry assets
'The ACCC has raised preliminary competition concerns about the proposed sale of the Tasmanian forestry assets of Resource Management Service LLC'. It is reviewing two prospective buyers of the RMS assets. Its concern is that the acquisitions could 'impact the viability of competing export channels for hardwood plantation chips in northern Tasmania, which could lower prices paid to private growers of plantation logs'.
See ACCC, 'Concerns about sale of RMS Tasmanian forestry assets' (Media Release, 26 September 2019).
20 September 2019 - ACCC reportedly pushing for criminal prosecution against BlueScope
It has been reported that the ACCC is pushing for a criminal prosecution against BlueScope and former senior representatives in relation to alleged cartel conduct, with the CDPP considering a brief of evidence to decide whether to prosecute; a decision is anticipated by the end of October.
See Sarah Danckert and Yan Zhuang, 'BlueScope execs toured world trying to form carrot-stick cartel: ACCC claims'(SMH, 18 September 2019), Patrick Durkin and Simon Evans, 'ACCC seeking criminal case against BlueScope' (AFR, 20 September 2019), Simon Evans, Patrick Durkin and Natasha Gillezeau, 'The secret 'weapon' used by steelmakers to hit rivals' (AFR, 20 September 2019), Partick Durkin and Simon Evans, 'ACCC digs deeper on BlueScope criminal cartel' (AFR, 26 September 2019),
See also ACCC, 'Action against BlueScope for alleged cartel conduct' (Media Release, 30 August 2019) and Patrick Hatch, 'BlueScope and flurry of cartel cases signal a 'new era', says Fels' (SMH, 2 September 2019).
18 September 2019 - ACCC concerned about lack of competition in retail banking
ACCC Chairman, Rod Sims, has expressed concern about a lack of competition in retail banking and stated that he would be speaking to the Treasurer about the scope of the next regular ACCC inquiry into the sector.
See Clancy Yeates, 'ACCC eyes fresh competition inquiry into big banks' (SMH, 18 September 2019) and John Kehoe, 'Liberals reject ACCC bank inquiry' (AFR, 18 September 2019).
13 September 2019 - IP exemption is history
The IP exemption in s 51(3) of the Competition and Consumer Act has now been repealed. See Guidelines on the repeal of subsection 51(3) of the Competition and Consumer Act 2010 (Cth) (August 2019).
See also Lisa Huett and Scott Bouvier, 'Time's up for review of IP licensing arrangements' (King&Wood Mallesons, 10 September 2019), Jacqueline Downes, 'ACCC contemplates broader powers; new guidance on the IP exemption repeal; and the final word on foreign currency conversion services' (Allens >< Linklaters, 9 September 2019) and DLA Piper, 'Don't get caught out: Intellectual property arrangements will be susceptible to prosecution for anti-competitive conduct from 13 September 2019' (12 September 2019).
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12 September 2019 - ACCC does not oppose Elders and AIRR rural services deal
The ACCC will not oppose the proposed acquisition of Australian Independent Rural Retailers by Elders. The ACCC considered the potential for vertical integration concerns, but noted that market feedback 'suggested that most independent retailers consider they have sufficient alternative supply options if Elders attempted to discriminate against them'.
See ACCC, 'Elders and AIRR rural services deal not opposed' (Media Release, 12 September 2019) and Elders Ltd proposed acquisition of AIRR Holdings Ltd Mergers Register.
See also AAP, 'Elders makes $187m takeover bid for AIRR' (SMH 15 July 2019)
5 September 2019 - ACCC opposes Jewel Fine Foods/B&J City Kitchen deal
The ACCC has opposed the proposed acquisition of Jewel Fine Foods by B&J City Kitchen. ACCC Chair, Rod Sims, stated that the ACCC believed the proposed acquisition would be 'likely to substantially lessen competition for the supply of chilled ready meals' as it would 'combine the two major players in this market, concentrating most of the manufacturing capacity of chilled ready meals in one business'.
See ACCC, 'ACCC opposes chilled ready meals deal' (Media release, 5 September 2019)
4 September 2019 - Court dismisses ACCC's appeal in Cascade Coal case
The Federal Court has dismissed the ACCC's appeal in the Cascade Coal cartel case
See Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019
August 2019
23 August 2019 - Global shipping company, Wallenius Wilhelmsen Ocean AS, charged with criminal cartel conduct
The CDPP has laid charges against Wallenius Wilhelmsen Ocean AS (WWO), a Norwegian-based global shipping company, alleging criminal cartel conduct. First mention is listed for 29 August.
22 August 2019 - ACCC does not oppose Landmark's proposed acquisition of RuralCo
The ACCC has not opposed Landmark's proposed acquisition of Ruralco.
See ACCC media release and merger register.
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.
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.
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)
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.
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:
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)
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.
View ACCC media release.
View Federal Court judgment.
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.
1 August 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)
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.
July 2019
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.
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.
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 ...
Hopefully it's stakeholder consultation, not "stakeholder consolation", the Aus govt is planning after release of ACCC Digital Platforms Inquiry Final Report today @competitionlaw @CPRC_research @DigCitzCon @CaronBW @UNSWAllensHub #dpireport #digitalplatforms #accc pic.twitter.com/PuNhg92Tuq
— Dr Katharine Kemp (@Katharine_Kemp) July 25, 2019
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)
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)
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.
June 2019
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.
Image: 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.
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.
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. ...'
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.
14 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.
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).
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.
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.
See 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))
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:
Proposed legislative instrument
Related documents
(includes draft guidance, draft collective bargaining class exemption notice, discussion paper (August 2018) and submissions on discussion paper)
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.'
May 2019
30 May 2019 - Garuda ordered to pay $19m 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
27 May 2019 - Class action cartel suit launched against investment banks
In a private cartel class action announced by Maurice Blackburn, five investment banks have been accused of operating a foreign exchange cartel between 2008-2013. The banks at the centre of the action are Citibank, UBS, JP Morgan, Barclays and RBS.
See Maurice Blackburn, 'Big bank in the gun with new forex cartel class action' (27 May 2019).
See also Sarah Danckert, 'Hunting 'the Mafia': Big investment banks face Australian cartel claim' (SMH, 27 May 2019), David Chau, 'Citibank, UBS, JP Morgan, Barclays and RBS sued for rigging currency exchange rates' (ABC news, 27 May 2019), Peter Ryan, 'Five global banks face class action over exchange rate collusion' (ABC, The World Today, 27 May 2019) (audio, including with Maurice Blackburn principal lawyer Kimi Nishimura), Peter Vercoe, 'Citi, JPMorgan, UBS Face Forex Cartel Class Action in Australia' (Bloomberg, 27 May 2019).
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:
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 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)
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.
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.
Image: 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 for details, including link to ACCC media releases, merger register and media.
14 May 2019 - ACCC opposes proposed TPG-Vodafone merger: media
There has been plenty of media following the ACCC's announcement that it would oppose the proposed merger between TPG Telecom Ltd and Vodafone Hutchison Australia Pty Ltd.
Mlex reporters, James Panichi and Laurel Henning have a new podcast discussing the issues.
'TPG-Vodafone merger suffers $700 million setback' (mLex, 9 May 2019, 17.25min)
See also:
- ACCC Merger register (TPG Telecom Limited (TPG) - proposed merger with Vodafone Hutchison Australia Pty Ltd (VHA))
- James Panichi, 'Premature release of Vodafone Hutchison-TPG merger decision ‘deeply embarrassing,’ Australian competition chief says' (mLex, 8 May 2019)
- Laurel Henning and James Panichi, 'Vodafone Hutchison's TPG Telecom acquisition blocked as regulator slams 5G rollout decision' (mLex, 8 May 2019)
- Jennifer Duke, '‘Missed the point’: Top law firm backs block of TPG-Vodafone merger' (SMH, 13 May 2019)
- Patrick Durkin, 'ACCC needs smoking gun on merger block' (AFR, 10 May 2019)
- Elizabeth Knight, 'Thanks, Rod! ACCC telco merger veto makes Telstra an accidental winner' (11 May 2019)
- James Fernyhough, 'Rod Sims plays poker with David Teoh' (AFR, 10 May 2019)
- John Durie, 'Upstart might be forced to resume its network rollout' (The Australian, 10 May 2019, p 32)
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).
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).
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'.
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)
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 further Simon Evans, 'AP Eagers moves up a gear in AHG takeover' (AFR, 1 May 2019)
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.
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.
April 2019
30 April 2019 - Dynamic Competition in Dynamic Markets: A Path Forward
Terrific CLEN/CPI conference today at Melbourne Law School on dynamic competition in dynamic markets, headlined by Prof Philip Marsden.
View CPI conference page and MLS-CLEN page for details.
For related stories and papers see:
- Yolanda Redrup, 'Facebook, Google are not publishers, says US antitrust expert' (AFR, 29 April 2019)
- Howard Shelanski, 'Is fining big tech companies the most effective way to protect users?' (ABC, RN Breakfast with Fran Kelly)
- Patrick Durkin, 'Facebook and Google have no excuse, warns ACCC' (AFR, 30 April 2019)
- Philip Marsden, 'Leave, Remain & Common Ground: Pragmatism in Dealing with Tech Giants' (CPI April 2019)
For reports discussed see:
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).
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)
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:
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.
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.
3 April 2019 - ACCC ends probe into anti-competitive behaviour by 'big four'
The ACCC has 'not found sufficient evidence' to proceed with an investigation into Deloitte, EY, KPMG and PwC over allegations of "cartel-like behaviour".
In a letter this week ACCC Chairman, Rod Sims, wrote: 'On the information before it, the ACCC has not found evidence that provides a basis to take further investigative action with respect to the allegations at this time'.
See Edmund Tadros 'ACCC ends Labor-backed cartel probe against Deloitte, EY, KPMG, PwC' (AFR, 3 April 2019) and Danny McCance, 'ACCC drops Big Four "cartel" probe' (economia, 3 April 2019).
See also Edmund Tadros and Tom McIlroy, 'The ACCC's cartel probe into Deloitte, EY, KPMG, PwC 'difficult to prove'' (AFR, 13 February 2019), Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).
March 2019
30 March 2019 - Labor announces it will raise maximum penalties under the CCA if elected
Labor has announced it will raise penalties for competition and consumer law breaches if elected. In a joint press release issued by Chris Bowen MP (Shadow Treasurer), Madeleine King MP (Shadow Minister for Consumer Affairs) and Andrew Leigh MP (Shadow Assistant Treasurer and Shadow Minister for Competition and Productivity), Labor referred to last year's OECD report highlighting lower penalties in Australia compared with comparator jurisdictions and announced it would address this by raising the maximum penalties available for both competition and consumer law breaches. In particular, it will:
- 'raise the maximum dollar penalty for companies that break competition laws and rip of consumers from $10 million to $50 million' and
- 'adopt a higher standard for competition law breaches, being 30 per cent of the annual sales of the produce or service relating to the infringement, multiplied by the number of years the infringement took place', following the EU approach (this replaces the 'three times the value of the benefit received or 10% of annual turnover in preceding 12 months ...' maximum for competition law breaches)
29 March 2019 - Consumer Data Right draft rules out
The ACCC has published draft rules fo rthe Consumer Data Rights.
'The CDR will allow consumers to easily obtain access to their banking data and have it transferred to service providers who they trust.'
See ACCC, Consumer Data Right draft rules out (Media release, 29 March 2019)
Draft rules can be found here: CDR draft rules (banking)
Submissions on the draft may be made until 10 May 2019: visit consultation hub.
28 March 2019 - ACCC approves Knauf's acquisitions of USG and AWI subject to conditions
The ACCC has announced that it 'will not oppose Knauf’s proposed acquisitions of USG and Armstrong World Industries after accepting a court-enforceable undertaking from Knauf to divest assets'.
See ACCC media release, 'Knauf's acquisitions of USG and AWI conditionally approved' (28 March 2019)
See merger register: Gebr. Knauf KG - proposed acquisition of USG Corporation and Armstrong World Industries Pty Ltd
28 March 2019 - ACCC will not oppose proposed IPH-Xenith acquisition
The ACCC has announced it will not oppose the proposed acquisition of Xenith IP Group Ltd by IPH Ltd, both holding companies of IP businesses.
Last week the ACCC announced it would not oppose the prosed merger of QANTM and Xenith. It made clear it considered these as alternative mergers; no approval is given for all three to merge.
See ACCC media release, 'ACCC will not oppose proposed IPH - Xenith acquisition' (28 March 2019)
See merger register: IPH Limited - proposed acquisition of Xenith IP Group Limited
27 March 2019 - ACCC Global Competition Agency of the Year
The ACCC has been awarded the 2019 Government Agency of the Year at the Global Competition Review 9th Annual Awards in Washington DC.
See ACCC, 'ACCC Global Competition Agency Of The Year' (Media Release, 27 March 2019)
27 March 2019 - Stephen Ridgeway set to be new mergers commissioner
The Australian's John Durie reports that Stephen Ridgeway is set to replace Roger Featherston as the ACCC's merger commissioner when his term ends in June (subject to approval of the appointment from state and federal governments).
See John Durie, 'Stephen Ridgeway set to be appointed ACCC mergers commissioner' (27 March 2019)
21 March 2019 - ACCC will not oppose QANTM-Xenith merger
The ACCC has announced it will not oppose the proposed merger between QANTM Intellectual Property Limited and Xenith IP Group Limited.
The merger will combine the second and third largest suppliers of IP services in Australia.
19 March 2019 - Country Care cartel case before Federal Court
The Country Care Group Pty Ltd, its Managing Director and a former employee were committed to stand trial last week an all of the cartel charges laid against them by the CDPP.
The first case management hearing was heard this morning before Justice Wigney. The Prosecutor was ordered to file and serve an Indictment by 14 May 2019. The matter was listed for a further Case Management Hearing at 9:30am on 2 July 2019.
A trial is to be listed for hearing to commence on 14 October 2019 with an estimated duration of 6 weeks.
For case details see my Country Care case page.
14 March 2019 - Country Care cartel case committed for trial
The Country Care Group Pty Ltd, its Managing Director and a former employee have been committed to stand trial in the Federal Court an all of the cartel charges laid against them by the CDPP.
The committal order was filed in the Federal Court today. The matter is listed for the first case management hearing before Justice Wigney next Tuesday 19 March. Justice Wigney also presided over the first criminal cartel case (CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (involved a guilty plea))
See Podcast with James Panichi and Laurel Henning: 'Country Care cartel case resonates in Australia; New Zealand's draft privacy laws move forward' (mlex, 14 March 2019).
See also ACCC, 'Country Care cartel case committed for trial in Federal Court' (13 March 2019).
See also Christine Caulfield, 'Country Care faces trial in first criminal cartel case against Australian Company' (Lawyerly, 13 March 2019) and Michael DiFabriziio, 'Country Care to face cartel conduct charges' (Sunraysia Daily, 14 March 2019) and mlex's James Panichi on twitter..
13 March 2019 - Black & White Cabs fails in bid of interlocutory mandatory injunction
Black & White Cabs made application for an interlocutory mandatory injunction requiring Regent Taxis to continue to provide it with booking and dispatch services. Questions arose as to whether there was a prima facie case of breach of contract, contravention of s 46 or contravention of s 47 of the CCA.
Justice Jackson considered that the applicant's proof to this point was not sufficient to grant the injunction; 'the balance of convenience favours not granting an interlocutory injunction until trial'.
See Black & White Cabs Pty Ltd & Ors v Regent Taxis Limited [2019] QSC 50.
12 March 2019 - Second tranche of submissions to ACCC's Digital Platforms Inquiry published and date for Final Report extended
The second tranche of submissions in response to the ACCC’s Digital Platforms Inquiry Preliminary Report are now available on the ACCC’s website. There are 27 new submissions available (on my count ...)
The Treasurer has also agreed to extend the due date for submission of the Final Report from 3 June to 30 June in response to an ACCC request.
12 March 2019 - Labor takes aim at price parity clauses for hotels
The ALP has announced that, if elected, it would ensure Australia's accommodation providers can set their own prices on personal websites, regardless of price parity clauses with online booking platforms, including Expedia and Booking.com.
8 March 2019 - Ramsay Health Care case - surgeon taped meetings
The hearing in the ACCC's misuse of market power and exclusive dealing case against Ramsay Health Care commenced on 25 February. On 8 March the Court heard that a surgeon recorded one of the meetings central to the ACCC's case:
For details see: Cat Fredenburgh, 'Doctor taped meeting where Ramsay Health unit CEO made alleged threats, trial hears' (Laywerly, 8 March 2019).
See also ACCC media release following institution of proceedings.
View case page.
6 March 2019 - Criminal cartel case committal hearing
The committal hearing relating to allegations of criminal cartel conduct against The Country Care Group was in the Magistrates' Court of Victoria this week. mLex reporter, James Panichi provided some commentary from the court:
4 March 2019 - Submissions to Digital Platforms Inquiry available
The ACCC has published the submissions made on the Digital Platforms Inquiry Preliminary Report.
A total of 86 submissions are available on the website.
1 March 2019 - ACCC accepts variation of Woolworths fuel discount scheme
The ACCC has accepted a variation to a 2013 undertaking provided by Woolworths in relation to shopper docket fuel discount offers. The variation has been brought about by the proposed sale of Woolworths' service stations to EG Group and the variation allows Woolworths to fund fuel discounts from outside its petrol division.
There is no change to the cap on 4 cents per litre for fuel discounts linked to supermarket purchases.
See ACCC, 'Woolworths fuel discount undertaking varied' (1 March 2019).
February 2019
28 February 2019 - Interstate rail network access undertaking revised to operate for 12 more months
The ACCC has announced that the' Australian Rail Track Corporation's 2008 interstate rail network access undertaking has been revised to operate for another 12 months'.
View ACCC, 'Interstate rail network access undertaking to continue' (28 February 2019).
View January 2019 variation of Interstate Access Undertaking.
28 February 2019 - ACCC does not oppose Bingo's proposed acquisition of Dial-a-Dump
The ACCC has announced it will not oppose Bingo's 'proposed acquisition of Dial-a-Dump after accepting enforceable undertakings from Bingo to divest its Banksmeadow processing facility.
See merger register.
27 February 2019 - ACCC seeks further input on digital advertising
The ACCC has called for further input from the advertising industry on the digital platforms inquiry preliminary recommendations. In a speech delivered at SIms stated:
... publishers are arguing that because of the lack of transparency, advertisers don’t often know where their advertising appears online, and if they did they would be more likely to spend money with them.
We have not yet reached a view on these issues and we are continuing to examine the ad-tech supply chain with a view to understand better how it works and how this impacts advertisers.
In this we would like your help. ...
See also ACCC, 'More input needed on digital advertising' (27 February 2019)
27 February 2019 - ACCC releases 2019 priorities
In his annual address to the Committee for Economic Development Australia (CEDA), ACCC Chair, Rod Sims, launched the ACCC's 2019 Compliance and Enforcement Policy.
In relation to competition policy SIms noted the following:
- The ACCC aims to have 2-3 criminal cartel investigations to conclude and prosecutions to commence this year. At least three significant cartel investigations are expected to be referred to the CDPP.
- The SLC unit is aiming to take 2-3 cases to court this year (in addition to cases being pursued by other ACCC enforcement teams)
- Misuse of market power and concerted practices will be a particular focus, with Sims expressing confidence that proceedings will be instituted under these provisions this year
- The Financial Services Competition Branch has been established to complement the market studies team; this will include supporting the CDPP in its cartel prosecution of certain banks and bank officers commenced in 2018
- The commercial construction sector will be a focus area, with a dedicated Commercial Construction Unit (including support for CDPP prosecution of CFMMEU)
In relation to market studies Sims referred to a number of areas, including the Digital Platforms Inquiry, and further noted that a key focus will be advancing the ACCC's work on the Consume Data Right (not actually a market study).
In relation to advocacy Sims noted key priorities included reform to unfair contract laws, prohibition on the sale of unsafe goods and continued debate about the adequacy of 'laws against companies engaging in "harsh and unfair conduct" towards consumers'. He also noted advocacy in relation to privatisation, airports and road reform, amongst other things.
Sims also expressed concern that the 'bar for establishing a likely substantial lessening of competition' may be becoming too high and that the weight given to self-interested business testimony might be trumping 'clear commercial logic'. He further suggested that there seems to be a 'current bias to excessive consolidation' and that we as 'a community ... need to question whether this is the outcome we want'.
View ACCC 2019 Compliance and Enforcement Policy (see also summary version).
22 February 2019 - Google's turn to criticise ACCC's algorithm proposal
On Monday Facebook's Vice President of APAC Policy, Simon Milner, published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry. The recommendation is that there be a regulatory authority tasked with, among other things, assessing the impact of ranking news with the aim of identifying the effects of algorithms on production of news and journalistic content.
Now it's Google's turn - and Google agrees with Facebook that an algorithm regulator is not the way to go, but it's also keen to distinguish itself from 'social media sites': Google Australia, Our response to the ACCC Digital Platforms Inquiry Preliminary Report' (21 February 2019).
Submissions on the Preliminary Report were due last Friday (15 Feb). They are not yet available on the Inquiry website.
See Vanessa Mitchell, 'Google hits back at ACCC, says algorithm regulator risks poor outcomes' (CMO, 21 February 2019), Orlaith Costello, 'Google hits back at ACCC' (Channel news, 22 Feb 2019), Charles McConnell, 'ACCC should reconsider competitive landscape, Google says' (GCR, 21 February 2019).
22 February 2019 - No adverse cost orders for Part IV litigation
On Monday the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House. This included repealing s 51(3) (effective 6 months after Royal Assent).
In addition, during the course of its passage several amendments were proposed by the Senate, including opposition amendment 8552 which added small business access to justice provisions. The amendment provides for assistance by the Ombudsman in relation to Part IV actions involving small business or family enterprises (via amendments to the Australian Small Business and Family Enterprise Ombudsman Act 2015) and provides for 'no adverse costs orders' in relation to Part IV actions affecting small business or family enterprises.
To facilitate the no adverse costs orders change, s 82 will be amended to allow the court to order that an applicant is not liable for the costs of the respondent, regardless of the outcome. Certain criteria must be satisfied before the court can make such an order (including that the action raises a reasonable issue for trial). The change will apply to actions brought on or after 1 July 2019.
See Hansard extract of Andrew Leigh MP discussing this amendment, including the following:
Labor's small business access to justice policy allows a small business to request a no adverse cost order when bringing on a court action for a breach of competition law. If the judge decides the case is in the public interest, the small business won't risk paying the big business's costs if they lose. As the Harper competition review concluded, 'there are significant barriers to small business taking private action to enforce competition laws.' Many commentators have noted that small business isn't scared so much of their own legal costs, but of being bankrupted by the legal costs of the other side.
20 February 2019 - Updates from across the ditch: NZ proposes misuse of market power effects test
The NZ government is proposing to amend the Commerce Act to introduce an effects test for misuse of market power (and to repeal certain IP exemptions). A review is open for submissions until April Fools Day ... really ...
Nick Crang (Duncan Cotterill) discusses the proposed changes here: Nick Crang, 'Changes to Commerce Act would restrict actions of firms with substantial market power' (Mondaq, 20 February 2019).
See also:
- Ministry of Business, Innovation and Employment, 'Government proposes changes to strengthen protections against misuse of market power' (31 January 2019)
- Review of section 36 of the Commerce Act and other matters
- Hon Kris Faafoi, 'Govt targets anti-competitive behaviour' (Media Release, 25 January 2019)
Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons
20 February 2019 - ACCC v Pacific National and Aurizon in court
In July last year the ACCC instituted proceedings against Pacific National and Aurizon: See ACCC's original media release (19 July 2019).
The hearing has continued before Justice Beach this week; mlex reporter, James Panichi has been following the action and reports 'grumpiness' in the Federal Court ...
Grumpiness in the Federal Court today as the ACCC's Aurizon-Pacific National lawsuit wrapped up. Clashes over Judge Beach's counterfactuals; criticism of the ACCC's claims of vindication over the Aurizon injunctions. Strong arguments on both sides. #competition @mlexclusive
— James Panichi (@JamesPanichi) February 20, 2019
18 February 2019 - Bill to repeal s 51(3) CCA passes both houses
The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House today; it has now passed both houses. The change is scheduled to commence six months after the Act receives Royal Assent.
The House considered Senate amendments unrelated to the s 51(3) change.
18 February 2019 - ACCC newsletter: misuse of market power
The ACCC has released its second 'Competition Law Newsletter', this time focussing on Misuse of market power: the law and the ACCC's enforcement focus.
18 February 2019 - Facebook not impressed with proposal for algorithm regulator
Facebook's Vice President of APAC Policy, Simon Milner, has published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry that there be a regulatory authority tasked with:
'... monitoring, investigating and reporting on the criteria, commercial arrangements or other factors used by relevant digital platforms (identified according to objective criteria reflective of influence and size) to impact:
(a) the ranking and display of advertisements (or other content when displayed alongside advertisements) with the aim of identifying whether the platforms may be discriminating in favour of their own related businesses or a business with which they have a specific commercial relationship as well as the potential competitive effect
(b) the ranking and display of news and journalistic content with the aim of identifying the effects of algorithms or other policies on the production of news and journalistic content or competition in media markets.
The regulatory authority could also refer matters to other government agencies for investigation where relevant.
...'
See also: Jennifer Duke, ''People not regulators should decide': Facebook slams calls for crackdown' (The Age, 18 February 2019) and Competition Lore podcast, 'What's the 'right' regulation for Facebook?' with Sam Knox, Facebook's Associate General Counsel.
16 February 2019 - Sims on Digital Platforms Inquiry
ACCC Chairman, Rod Sims, delivered a presentation to the IIC Australian Chapter's Digital Platforms Inquiries Event in Sydney on Monday. A video of that presentation is now available here.
A copy of the speech is also available from the ACCC website: Sims, 'Insights and impacts of the ACCC Digital Platforms Inquiry' (11 February 2019)
15 February 2019 - Bill to repeal s 51(3) CCA passes the Senate after all, but with amendments
After suggesting the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 had missed out on Senate debate yet again, it magically appeared before the Senate and passed soon after 8pm last night (thanks for the heads up Brent Fisse) with amendment.
The amendments do not relate to the IP changes.
The Bill is expected to appear before the House next week.
14 February 2019 - ACCC does not oppose DLF Seeds' acquisition of PGG Wrightson Seeds
The ACCC will not oppose DLF Seeds’ proposed acquisition of PGG Wrightson Seeds.
See ACCC media release.
View merger register.
14 February 2019 - No debate yet on bill to repeal s 51(3) CCA
The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 which will, among other things, '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' by repealing subsection 51(3) was last scheduled for debate in the Senate on 27 November last year. It passed the House of Representatives on 17 October and was introduced to the Senate the following day.
It contains a number of measures in addition to the IP change which have been the subject or proposed amendments. The bill was listed under general business for discussion by Senator Collins today, but was later withdrawn.
Plenty of 'Treasury Laws Amendment' bills were up for debate in the Senate this week, but this one missed out, with the result that there's a fair chance it may lapse.
In the meantime, Brent Fisse has offered a helpful critique of the Bill:
13 February 2019 - Cryosite ordered to pay more than $1m for 'gun jumping' cartel conduct
The Federal Court has ordered Cryosite to pay $1.05m in penalties for cartel conduct relating to its asset sale agreement with Cell Care. Cryosite admitted the contravention.
Following the decision, ACCC Commissioner, Sarah Court, said:
When companies jump the gun and coordinate or integrate competing businesses before finalising an acquisition between them, this can lead to permanent structural change in the market
Such cartel behaviour, which had the effect of ‘gun jumping’, undermines the effective functioning of the ACCC and the merger process
We want to be clear that parties to a transaction must remain independent and continue to act as competitors, even after they have signed a business or share sale agreement, until the deal is completed.
On this issue of penalty Justice Beach observed:
[49] ... the penalty to be imposed for cartel conduct of the kind I am considering ahead of a proposed sale or its completion needs to be sufficiently high to deter businesses who may otherwise be able to circumvent the proper application of s 50 and its associated divestiture remedy or at the least render less effective or nugatory such a remedy.
[50] Further, any penalty must be sufficient to overcome the broader incentives to businesses to prematurely coordinate or integrate their businesses ahead of the completion of a sale in a manner which has an anti-competitive purpose or effect. ...
In this case, although the penalty imposed was just over 10% of the maximum available for the contravention, Justice Beach observed that, in light of the size and financial position of cryosite, the penalty 'could not reasonably be regarded as an acceptable cost of doing business, and could be expected to render any risk/benefit analysis materially less palatable to other potential wrongdoers.' (para 88).
See ACCC, 'Cryosite to pay $1.05m for 'gun jumping' cartel conduct (13 Feb 2019).
13 February 2019 - Katharine Kemp discusses digital platform advertising in latest Competition Lore podcast
Dr Katharine Kemp discusses the key findings and recommendations contained in the ACCC's preliminary report for the Digial platforms inquiry in Episode 20 of the Competition Lare podcast ('Platforms, ads and the media?').
13 February 2019 - ACCC requests information from accounting firms over 'cartel-like' behaviour
The AFR is reporting that the ACCC has requested information from the big four accounting firms (Deloitte, EY, EPMG and PwC) regarding 'the way they sell audit and consulting services'.
Today's A&C page: The @acccgovau) is probing Deloitte, @EY_Australia, @kpmgaustralia and @PwC_AU over potential cartel/anti-competitive conduct https://t.co/qsQyxoKToT (@TomMcIlroy), This is a golden age of audit: @Chartered_Accts https://t.co/1agIodc8t2 1/2 pic.twitter.com/04FlGJvt8L
— Edmund Tadros (@edmundtadros) 12 February 2019
See further Sally Whyte, 'Labor asks ACCC to investigate big four accounting firms' (SMH, 4 September 2018) and Edmund Tadros, Thom McIlroy, 'Deloitte, EY, KPMG, PwC should be probed for cartel conduct: Labor' (AFR, 3 September 2018).
11 February 2019 - Sims on the Digital Platforms Inquiry
ACCC Chair, Rod Sims, has delivered a speech to the International Institute of Communications this morning entitled 'Insights and impacts of the ACCC Digital Platforms Inquiry'. Sims discusses some of the issues being explored in the Digital Platforms Inquiry, particularly in relation to news and journalism.
See also John McDuling, 'ACCCs Rod Sims to maintain pressure on Google and Facebook' (SMH, 11 February 2019), Max Mason, 'Google and Facebook need to take more responsibility for future of journalism, ACCC boss Rod Sims says' (AFR, 11 February 2019) and Amanda Meade, 'Regulation needed to save Australian journalism from Facebook and Google, watchdog says' (The Guardian, 11 February 2019).
7 February 2019 - Court dismisses application for summary judgment by Garmin
Justice Derrington in the Federal Court has given leave to B&K Holdings (Qld) Pty Ltd to amend its statement of claim and has dismissed Garmin's application for summary judgment.
B&K Holdings allege contraventions by Garmin Australasia Pty Ltd of s 46 (post-Harper, in the form of predatory pricing), s 45, 47 and also allege misleading or deceptive conduct.
In the course of his judgment Justice Derrington spent some time discussing principles around predatory pricing in section 46, including whether or not it is necessary that products be sold below 'avoidable cost'.
A case management hearing is listed for 26 February.
See B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64
7 February 2019 - ACCC investigating Qantas' completed acquisition of an interest in Alliance Airlines
The ACCC has commenced an informal review of Qantas' completed acquisition of a 19.9% interest in Alliance Aviation Services Ltd to assess whether there has been a breach of section 50 (merger provision). The issues will be contained in a market inquiry letter (not yet published on the merger register). Submissions are due by 4 March 2019.
View merger register.
7 February 2019 - ACCC, NCC and Port of Newcastle regulation
Matthew Stevens has an opinion piece in today's AFR discussing what he describes as the 'NCC's staggeringly wrong-headed draft conclusion that the [ACCC's] oversight of the world's biggest coal port should be revoked' and the ACCC's response (published Wednesday) to that conclusion.
See Matthew Stevens, 'The ACCC and NCC slug it out over Port of Newcastle regulation' (AFR, 7 February 2019). See also Matthew Stevens, 'Competition tsars go to war over Newcastle port regulation' (AFR, 19 December 2018)
For more detail see:
- Submissions to NCC (including ACCC submission dated 6 Feb 2019)
- The NCC's 'Statement of Preliminary Views' on Port of Newcastle's application to the NCC to recommend revocation of the declaration of the shipping channel service at the Port of Newcastle (published on 19 December 2018).
7 February 2019 - ACCC seeks views on regulation at GrainCorp's Portland bulk grain terminal
The ACCC has 'released an issues paper seeking views on whether to exempt GrainCorp Operations Limited (GrainCorp) from certain parts of the [mandatory Port Terminal Access (Bulk Wheat) Code of Conduct] at its port terminal facility at Portland.'
Submissions are due by 28 February 2019.
View media release.
7 February 2019 - ACCC discontinues Siemens Alstom merger review
The ACCC has discontinued its review of the proposed Siemens Alstom merger in light of the European Commission's (EC) decision to block the transaction and the statements by the merger parties that the deal is off.'
The ACCC had previously expressed concerns about the merger and issued a statement of issues on 6 September 2018.
See media release.
See merger register.
1 February 2019 - Vale Professor Maureen Brunt AO
I was saddened to learn of the passing this week of former Competition Tribunal Member and economist, Professor Maureen Brunt AO.
The ACCC has issued a media release acknowledging Professor Brunt's role as 'one of Australia's most influential competition economists and academics ... instrumental to the development of our competition policy and law framework.'
View media release.
January 2019
22 January 2019 - ACCC suspends review timeline for proposed TPG-Vodafone merger
The ACCC today suspended its merger review timeline for the proposed merger between TPG Telecom Limited and Vodafone Hutchison Australia Pty Ltd, citing a delay in receiving information from the parties. The previous provision decision date of 28 March 2019 has been replaced with an expected new provisional date of 11 April 2019.
Last year the ACCC published a Statement of Issues outlining preliminary concerns about the proposed merger.
See merger register.
See also James Fernyhough, 'ACCC pushes back decision on Vodafone-TPG merger' (AFR, 22 January 2019).
8 January 2019 - ACCC raises concerns over Bingo's proposed acquisition of Dial-a-Dump
On 29 November the ACCC issued a Statement of Issues outlining preliminary competition concerns relating to Bingo's proposed acquisition of Dial-a Dump. Today the ACCC launched a consultation process seeking market views about whether a proposed divestment by Bingo would address potential competition concerns.
See ACCC media release.
See merger register.
6 January 2019 - Sims warns business of higher fines
In today's AFR James thomson reports on ACCC Chairman, Rod Sims', warning to the corporate sector over higher fines for misleading consumers and increased scrutiny of merger benefit claims.
See: James Thomson, 'ACCC warns 'arrogant' business sector of huge fines' (AFR, 6 January 2019)
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