Competition Law News 2013
20 December 2013 - Mitsubishi Electric to pay $2.2 million for RPM
19 December 2013 - ACCC conditionally approves proposed acquisition of LIfe Technologies by Thermo Fisher
19 December 2013 - ACCC will not opppose Gallagher's proposed acquisition of Country Electronics
Following the provision of a court enforceable undertaking, the ACCC will not oppose the proposed acquisiton by Gallagher Group of Country Electronics Pty Ltd. View press release. View merger register.
19 December 2013 - ACCC releases SOI on proposed acquisiton of AAP's media monitoring business by iSentia
The ACCC has released a Statement of Issues outlining concerns with this proposed acquisition. View press release. View merger register. Interested parties have until 31 January to make submissions and a final decision is due 20 February.
19 December 2013 - ACCC releases statement of issues on Woolworths' proposed acquisition of Lindisfarne Cellars
The ACCC has released a Statement of Issues setting out its concerns about the proposed acquisition of LIndifarne Cellers by Woolworths. See press release. See merger register. Submissions are due by 17 January with proposed ACCC announcement on 13 February.
19 December 2013 - ACCC calls for comment on BlueScope Steel's proposed acquisition of OneSteel Sheet and Coil
The ACCC has released a Statement of Issues on BlueScope Steel Ltd’s proposed acquisition of the OneSteel Sheet & Coil business from Arrium Ltd. See press release. See merger register. Submissions are due by 24 January with proposed ACCC announcement on 20 February.
18 December 2013 - State of Competition
The latest The State of Competitionhas been published by Rachel Trindade, Alexexandra Merrett and Rhonda Smith. The theme is "2013: the year of waiting patiently" and it discusses the three recent Part IV decisions - Cement Australia, ANZ & Flight Centre - and also devotes time to discussing (and criticising) the ACCC's 'shopper-docket' undertaking extraction from Coles and Woolworths, the new cartel cases filed by the ACCC this month, consumer protection news, 'Frankincense' (merger news!) and finally, the long awaited 'root and branch review'. Bumper issue and, as always, a must read. Past issues can be found at The State of Competition home page.
18 December 2013 - ACCC grants authorisation for coordination of public education campaign and mandatory PIN rules
The ACCC will allow Visa, MasterCard, American Express and participating financial institutions, to coordinate removal of signatures as authentication for most credit card transactions. View press release. View authorisation register.
18 December 2013 - Grocery code and shopper dockets
Today's PM with Mark Colvin discussed the new grocery code of conduct and retailer concerns over shopper dockets. See Michael Janda, 'Suppliers welcome grocery code, but retailers bemoan docket discounts for fuel' (ABC News, PM, 18 November 2013) (listen or view transcript)
17 December 2015 - Crunch time for competition review
Prof Stephen King has an item in today's 'Conversation' about the pending 2014 competition review. View article.
13 December 2013 - Draft Terms of Reference
The draft terms of reference for the Competition Review are now available. See Root and Branch Review Page. See also Anne Wardell, 'Root and Branch' Review of Competition Laws - Draft Terms of Reference released' (CCH Law Chat, 12 December 2013) (includes link to full draft). For some commentary see David Crowe, 'Coalition sides with small firms against big business' (The Australian, 11 December 2013)
13 December 2013 - ACCC v Cement Australia decision
The decision of Justice Greenwood in ACCC v Cement Australia is now available on AustLII. Justice Greenwood held that Cement Australia had breached section 45 but the ACCC was unsuccessful in its misuse of market power claim under section 46 (see ACCC press release.) The RTF file is a whopping 25MB with the decision running to decision running to 894 pages (if you reformat to single spacing size 10 Calibri you can get it down to 539 pages ... but not so fun to read that way). Enjoy. For a brief overview see, for example, George Raitt, 'Power without glory: ACCC v Cement Australia' (Piper Alderman, Competition and Consumer News, December 2013) and Elizabeth Richmond and Alexia Smyth-Kirk, 'ACCC v Cement Australia: another ACCC misuse of market power case turns to ash' (Clayton Utz Insights, 5 December 2013).
12 December 2013 - Cartel action against Woolworths, Colgate and Cussons
Eli Greenblat at SMH reports that the ACCC has launched a cartel action against Woolworths relating to a range of laundry detergent products. See Eli Greenblat, 'Cartel action against Woolworths, Colgate and Cussons over laundry products' (SMH, 12 December 2013)
10 December 2013 - ACCC appeals ANZ price fixing case
The ACCC has appealed against the decision by Justice Dowsett in the Federal Court dismissing the ACCC's allegations that the ANZ had breached price fixing provisions in the TPA (as it was at the time of the alleged contravention). See ACCC press release. See also 'ACCC appeals in ANZ price fixing case' (News.com.au, 10 December 2013)
6 December 2013 - ACCC v Flight Centre Ltd
Justice Logan in the Federal Court has handed down his decision in the ACCC v Flight Centre cartel case, holding that on six occasions Flight Centre attempted to enter agreements to 'fix, control or maintain Flight Centre's retail or distribution margin'. See ACCC Press Release. Read judgment on AustLII.
The ACCC has accepted s 87B undertakings from Coles and Woolworths to 'cease making fuel saving offers which are wholly or partially funded by any part of their business other than their fuel retailing business' and to 'limit fuel discounts which are linked to supermarket purchase to a maximum of 4 cents per litre.' The undertakings note (in part) that while '[Woolworths/Coles] does not accept that any of its fuel savings offers have adversely affected competition, [Woolworths/Coles] has voluntarily and without admissions offered to provide this Undertaking to address the matters raised by the ACCC'.The undertakings also contain a meeting competition exemption. 'View ACCC press release. View Coles Group Ltd undertaking. View Wooloworths Ltd undertaking.
4 December 2013 - Competition Review Announced
The Government has announced that it will undertake a comprehensive review of competition laws and policy - referred to again as a 'root and branch reivew' that will 'examine not only the current laws but the broader competition framework'. The press release indicates that the government has provided states and territories with a draft terms of reference and that a review panel will be established shortly with final report to be produced within 12 months. View press release.
29 November 2013 - Alex Merrett's new book on Market Power
Alexandra Merrett's book 'The Assessment and Regulation of Market Power in Australia: An Institutional Approach' has just been published by LAP Lambert Academic Publishing.
29 November 2013 - New State of Competition
In the latest issue of The State of Competition, Rachael Trindade, Alexandra Merrett and Rhonda Smith tackle the effects vs purpose debate in relation to misuse of market power. See 'The Grass is always greener? The effects vs purpose debate resumes' (The State of Competition, Issue 14 (Nov 2013). This is a bumper 8 page double issue - not to be missed!
29 November 2013 - Sims on addressing market failure
29 November 2013 - ACCC to launch cartel case before end of year
The AFR reports that the ACCC is likely to launch a major cartel case before the end of the year, believed to be the largest since the 2005 Visy case. See 'ACCC to launch cartel case: report' (Business Spectator, 29 November 2013). See also Rod Sims' speech to the RBB Economics Conference in which he indicates he expects 'to be able to announce the commencement of another domestic cartel case before the end of the year.'
28 November 2013 - ACCC released two new PCA's
The ACCC has released its public competition assessments for Westfield's proposed acquisition of Karrinyup Shopping Centre (not opposed subject to divestiture) and Baxter's proposed acquisition of Gambro (not opposed subject to divestiture).
27 November 2013 - Supermarket codes
Professor Caron Beaton-Wells has an item in today's Conversation about the proposed supermarket code of conduct. See 'Toughen up: what Australia's supermarket code could learn from the UK' (The Conversation, 27 November 2013)
22 November 2013 - Qantas under ACCC investigation
The AFR reports that Qantas is under ACCC investigation for potential misuse of market power in its fight with Virgin. See 'ACCC lines up Qantas for inquiry' (AFR, 21 November 2013) See also Joe Aston and James Chessell, 'Qantas under ACCC investigation over price war' (SMH, 22 November 2013)
21 November 2013 - ACCC alleges RPM by Mitsubishi
The ACCC has taken action against Mitsubishi Electric Australia alleging it engaged in reale price maintenance. See Steven Raeburn, 'ACCC targets Mitsubishi over price fixing concerns' (The Drum, 21 November 2013). See also John Durie, 'ACCC files against Mitsubishi over air conditioner pricing' (The Australian, 20 November 2013) and ACCC press release.
20 November 2013 - King on supermarket code
Prof Stephen King has an item in today's Conversation about the draft supermarket industry code of conduct. See 'Coles and Woolworths code useful, but beware disputes' (The Conversation, 20 November 2013)
20 November 2013 - ACCC funding issues
ACCC chairman, Rod Sims, claims the ACCC has run at a loss for the past through years as a result of increasing demands and decreased funding. See David Uren, 'Sims says Labor caused ACCC harm with demands for efficiency dividends' (The Australian, 20 November 2013)
19 November 2013 - ACCC finds no evidence of cartel contravention by Crown
The ACCC has announced that it has concluded an investigation into Crown finding there was 'insufficient evidence to support a contravention of the cartel provisions'. View ACCC press release.
18 November 2013 - Federal Court dismisses proceedings against ANZ
The Federal Court has dismissed proceedings brought by the ACCC alleging ANZ breached the price fixing provisions of the TPA (now CCA; alleged conduct occurred in 2004). In particular, the Court considered whether ANZ 'engaged in conduct that had purpose or effect, or was likely to have purpose or effect, of fixing a rebate' and also whether the relevant conduct substantially lessened competition contrary to s 45. See Federal Court decision (200+ pages). See ACCC press release.
17 November 2013 - 11th Competition and Consumer Workshop
The 11th Annual University of South Australia Competition and Consumer Workshop was held over the weekend discussing a variety of matters likely to feature in next year's 'root and branch' review.
14 November 2013 - Monash Business Forum releases paper proposing issues for root and branch review
The Monash Business Forum today released its 'Agenda for National Competition Policy Inquiry' in which it explores key areas the authors think should be covered in the review. In particular, it makes twelve recommendations for issues that it considers should form the basis for the Review's Terms of Reference. See also John Durie and Annabel Hepworth, 'Break up bid to put watchdog on leash' (The Australian, 14 November 2013, P19) and Matthew Drummond, 'Samuel calls for break-up of ACCC' (The Financial Review, 14 November 2013)
14 November 2013 - ACCC not to oppose NBN Co's proposed acquisition of TransACT's fibre to the premises network
The ACCC has announced it 'will not oppose the proposed acquisition of TransACT Capital Communications Pty Ltd’s (TransACT) fibre to the premises network (TransACT FTTP network) by NBN Co Limited (NBN Co)'. See press release. See public register.
8 November 2013 - Online education units for tertiary institutions
8 November 2013 - Bradken and Norcast settle
Bradken has settled its federal court case appealing the judgement of Justice Gordon handed down earlier this year. As a result Bradken's appeal has been discontinued (Notice of Discontinuance of Appeal or Cross-Appeal filed on 4 November). See Richard Gluyas, 'Bradken case settled on confidential terms' (The Australian, 5 November 2013) and 'Bradken, Norcast reach deal' (Business Spectator, 4 November 2013)
7 November 2013 - Samuel calls for re-introduction of competition payments
The AFR reports taht former ACCC Chairman, Craeme Samuel, has called for the re-introduction fo competition payments 'to kick-start the reform agenda', noting that competition policy hs 'slipped off' the COAG reform agenda. See Mark Ludlow, Fluer Anderson and Laura Tingle, 'Competition payments required to boost reform' (AFR, 7 November 2013, page 7)
1 November - ACCC investigating allegations of predatory pricing against Geelong Advertiser
The Age reports that the ACCC is investigating allegations News Corp's Geelong Advertiser has engaged in predatory pricing since the arrival of The Weekly Review, a free real estate and lifestyle magazine (owned by Metro Media Publishing - a JV between Fairfax and Antony Catalano). See Dominic White, 'ACCC steps in to probe predatory pricing claims' (The Age, 1 November 2013). See also Dominic White, 'ACCC probes News Corp's Geelong paper' (AFR, 1 November 2013, page 6) and Noel Murphy, 'ACCC probing News' ad rates' (Geelong Independent, 31 October 2013)
31 October 2013 - ACCC releases annual report
The ACCC and AER have published their 2012-2013 annual report. See press release. In relation to competition law, the report notes that the past 18 months have seen the largest penalties (cumulatively) for cartel conduct in the history of the ACCC (thanks to the international air cargo cartel) and refers to five competition proceedings (Renegage Gas and Speed-E-Gas (cartel allegation); Australian Arrow Pty Ltd (cartel allegation); Visa (misuse of market power allegation); Koyo (cartel allegation) and Viscas/Prysmian (cartel - penalty of $1.35million)). The report also notes current ACCC investigations into supermarket supplier arrangements, shopper dockets and fuel retailing. In relation to mergers, 73% of those considered were pre-assessed as not requiring review and of the 76 reviews conducted, six were opposed and two were resolved with remedies (page 6).
31 October 2013 - ACCC will not oppose Bega Cheese's proposed acquisition of Warrnambool Cheese and Butter
The ACCC will not oppose 'the proposed acquisition of Warrnambool Cheese and Butter Factory Company Holdings Limited (Warrnambool Cheese and Butter) by Bega Cheese Limited (Bega).' View press release. View merger register.
31 October 2013 - Billson on the Supermarket Wars
Small Business Minister Bruce Billson spoke at a food industry conference in Canberra yesterday, focussing on supermarket behaviour and describing s 46 of the CCA as a 'hunting dog that won't leave the porch'. At the same conference ACCC chairman, Rod Sims, indicated that the ACCC's investigation into treatment of suppliers by the major supermarkets has been delayed until around March 2014 (view speech and press release) and Senator Xenophon once again argued for divestiture laws in abuse of power cases.
See Colin Brinsden, 'Big two supermarkets focus on govt review' (Sydney Morning Herald, 30 October 2013), Anna Vidot, 'Minister wants competition law with bite' (ABC Rural, 30 October 2013), David Crowe, 'Coalition's warning to retail giants' (The Australian, 30 October 2013). See also 'Over-regulating grocers would harm consumers' (The Australian (Opinion), 31 October 2013) and Stephen Bartholomeusz, 'Beware dead wood in retail's root-and-branch review' (Business Spectator, 30 October 2013)
30 October 2013 - ACCC proposes to reauthorise AMA to collectively bargain
The ACCC 'has issued a draft determination proposing to re-authorise collective bargaining arrangements put forward by the Australian Medical Association (NSW) for ten years. The AMA (NSW) proposes to continue to collectively bargain on behalf of visiting medical officers in the NSW public hospital system with the NSW Ministry of Health and public health organisations.' View press release. View authorisation register.
30 October 2013 - ACCC reauthorises Rural Doctors to collectively negotiate
The ACCC has allowed the Rural Doctor's Association of Australia 'and its state associations to continue to collectively negotiate with state and territory health departments, on behalf of rural doctors.' View press release. View authorisation register.
25 October 2013 - Public Competition Assessment in Woolworths/Glenmore Ridge case
The ACCC has released its Public Competition Assessment in relation to the proposed acquisition, by Woolworths, of a supermarket site at Glenmore Ridge Village Centre. It states, in part, that 'the ACCC concluded that the proposed acquisition would be likely to result in a substantial lessening of competition in the local retail supermarket market by preventing or hindering competition that would likely otherwise have been brought to the local market by an alternative supermarket operator. This competition would be unlikely to be otherwise introduced into the local market because of the lack of other available suitable sites for supermarket development' (para 60). The ACCC commenced its review of this proposed acquisition on 20 June 2012 and opposed this proposed acquisition on 5 June 2013.
25 October 2013 - Merger authorisation update
Dave Poddar at Clifford Chance has a report on the Murray Goulburn authorisation application: 'Too much froth? Merger clearance tactics in contested takeovers in Australia' that's well worth reading. It compares the informal clearance and merger authorisation processes and looks specifically at the Australian dairy sector and the challenges of the authorisation process for Murray Goulburn.
22 October 2013 - Merger authorisation case expected
Murray Goulburn has announced it intends to seek authorisation for its proposed merger with Warrnambool Cheese & Butter. This will be the first merger authorisation case since the power to grant merger authorisations was removed from the ACCC and handed to the Tribunal in 2007. See Julie-Anne Sprague, 'Why Warrnambool sparked a bidding war' (AFR 22 October 2013), Tim Binsted, 'MG to put case to tribunal' (Farm Weekly, 22 October 2013), Adele Ferguson, 'Dairy giant poses as a national farm saviour' (Business Day, 19 October 2013) and Richasrd Gluyas, 'Everyone wants these happy cows' (The Australian, 19 October 2013).
18 October 2013 - $2m cartel penalty
The Federal Court has made consent orders 'against Koyo Australia Pty Ltd ordering it to pay penalties of $2 million' after finding it made and gave effect to two cartel arrangements to increase the price of ball and roller bearings. Justice Edmonds set out criteria for assessing appropriate penalties and after applying them to the case, including taking account of the substantial cost savings resulting from Koy's cooperation, accepted that the agreed pecuniary penaltiy was approriate. View press release. View decision (Justice Edmonds).
17 October 2013 - ACCC grants interim authorisation to Office Choice members and franchisers
17 October 2013 - ACCC allows electricity generators to jointly negotiate
17 October 2013 - ACCC issues PCA for Woolworths' proposed acquisition of Hawker Supa IGA
The ACCC today issued its 17-page Public Competition Assessment for the proposed acquisition by Woolworths of the Hawker Supa IGA, which the ACCC announced it would not oppose on 4 July.
17 October 2013 - Hockey speaks to American Australian Association on 'Root and Branch' review
Treasurer Joe Hockey delivered a speech to the American Australian Association in New York on Tuesday evening, (briefly) reiterating the government's promise of a 'root and branch review' of competition policies, emphasising need for a 'simple and predictable regulatory environment' and lightening of regulatory burden. In today's Financial Review, Fluer Anderson reports that it is now anticipated that only the terms of reference will be released within the first 100 days of the Abbott Government. (Fleur Anderson, 'Inquiry aims to simplify complex competition laws' (AFR, 17 October 2013)
16 October 2013 - Stephen King on Costco's entry into petrol
Prof Stephen King has an item in the Conversation today in which he argues that Costco's proposed entry into the discount petrol market is unlikely to benefit most consumers (see 'Costco's entry into petrol is unlikely to help most consumers')
15 October 2013 - ACCC proposes conditional authorisation of APRA arrangements
11 October 2013 - Credit card signature authorisation
The ACCC is proposing to allow Visa, MasterCard, American Express and other participating financial institutions to coordinate removal ofsignatures as an authentication method for most credit cared transactions. View press release. View authorisation register.
3 October 2013 - ACCC authorises Homeworkers Code of Practice
2 October 2013 - Three more authorisation decisions
The ACCC has reauthorised a concrete cartage allocation system in Perth and granted interim authorisation to regional councils in NSW for waste services agreements and the Queensland Government for liquor accord.
30 September 2013 - ACCC released discussion paper in cartel immunity policy review
The ACCC has released a public discussion paper inviting comment on issues arising from its current review of the ACCC Immunity Policy for Cartel Conduct. The closing date for submissions is 28 October. View press release. View consultation page.
30 September 2013 - ACCC updates merger process guidelines
The ACCC has updated its Merger Review Process Guidelines. Key changes relate to pre-assessment processes for non-contentious mergers, feedback processes where concerns are raised and clarification of the approach to releasing Public Competition Assessments. In relation to PCA's it is notable that since the draft was released earlier this year the ACCC has re-inserted (into para 2.70) a statement that they will aim to release a PCA within 30 days of making a decision. This appeared in the previous review guidelines but did not appear in the draft revised guidelines. The ACCC has not even come close to meeting this time frame lately; for example, we are still awaiting a PCA in the controversial Woolworths/Glenmore Ridge case (opposed 6 June). In the carsales case the ACCC opposed the proposed acquisition on 20 December 2012 and PCA was released 13 June 2013. The reason for the significant delays remains a mystery. View press release.
30 September 2013 - Sims speak to International Symposium on Infrastructure
28 September 2013 - Car parts price fixing
There were a number of reports yesterday relating to the international probe into car parts price fixing. Discussing cartel activity generally Sims also noted that it has received about 100 immunity applications since the immunity policy (currently under review) was introduced five years ago. See, for example, Amy Bainbridge, 'ACCC plays a role in busting car parts price-fixing cartels' (ABC News, 28 September 2013).
26 September 2013 - Petrol discounts - are they forcing small petrol stations out?
ABC factcheck has an item on petrol shopper dockets - 'Are the big chains' discount vouchers forcing small petrol stations out of business?' (ABC Factcheck, 25 September 2013), reporting on an advertisement placed by the Independent Retailers of Australia in the Fin Review on 19 September 2013.
26 September 2013 - Sims: Competition provisions in trade agreements benefit region
ACCC Chairman, Rod Sims, addressed a Regional Cmprehensive Economic Partnership seminar in Brisbane today discussing competition provisions in trade agreements. The speech has not been published. View press release. See also In Competition post (by Hanna Gyton) on the discussion paper.
26 September 2013 - ACCC approves Emerald's wheat port access
25 September 2013 - Samuel: Take politics out of competition law
Former ACCC Chairman, Graeme Samuel appeared on ABC Rural today discussing the proposed root and branch review of competition law. He welcomes the review but says a overhaul is not needed. In particular is warned against politicising competition law reform. See Anna Vidot, 'Take politics out of competition law: ex-ACCC boss' (ABC Rural, 25 September 2013)
25 September 2013 - ACCC grant interim authorisation to Myer
The ACCC has granted interim authorisation to Myer to enable it to continue to invite businesses within its stores to participate in promotions. A draft decision on the full application is anticipated in November. View press release. View authorisation register.
25 September 2013 - ACCC authorises voluntary code of conduct for solar retail businesses
The ACCC has granted authorisation for five years to Clean Energy Council Ltd for a voluntary code of conduct for solar photovoltaic retail businesses. View press release. View authorisation register.
23 September 2013 - NBN Co Board resigns
The entire board (bar one) of NBN Co has resigned, although (at 11am September) they have not yet been accepted by the Government. See ABC, 'All but one NBN Co board member hand in resignations'. See also Alan Kohler, 'The NBN board has run away. Why?' (Business Spectator, 23 September 2013)
23 September 2013 - ACCC varies Facilities Access Code
The ACCC has varied the Facilities Access Code following a review which commenced in July 2012. Most notably, timeframes for accessing facilities are now mandadory. See press release. See revised code.
20 September 2013 - No rush for competition review
The AFR has an item today on the Government's promised root and branch competition review. See Tony Boyd, 'Slow start to Billson's competition review' (AFR, 20 September 2013, page 40). The item suggests Billson will favour an economist over a lawyer to dead the review which is expected to be assested by experts 'repreenting farmers, small business and consumers'. This follows an item on the 10th reporting that Billson had indicated that terms of reference have already been drawn up: Claire Stewart, 'Billson pledges 'comprehensive' competition review' (AFR, 10 Sept 2013, page 3). See also James Thomson, 'Billson ready for business in new ministerial role' (BRW, 17 September 2013) (suggesting Billson will get his 'root-and-branch' review going as soon as possible following consultation on terms of reference.
19 September 2013 - Annual Baxt Lecture
The annual Baxt lecture was delivered today by Professor Frederick Hilmer AO, the architect of the National Competition Policy. The topic "National Competition Policy Turns 21: An Occasion to Celebrate" was highly topical given the 'Son of Hilmer' Review promised by the new Government within its first 100 days. Update: slides and handout ('National Competition Policy: Coming of Age') now available from the link above, with audio to follow.
19 September 2013 - ACCC opposes fee arrangements by ophthalmologists
18 September 2013 - State of Competition: Competitive Neutrality
Alexandra Merrett and Rachel Trindade have released Issue 13 of The State of Competition - this issue's subject is competitive neutrality. Read 'Has competitive neutrality run its course?'. The authors have also promised discussion of the always topical 'section 46' in the next issue.
16 September 2013 - No competition minister
Despite talk of a root and branch review of competition laws for more than a year, no competition minister appears in the new cabinet, outer ministry or among the various parliamentary secretaries. As expected, Bruce Billson is the new Minister for Small Business. He was the Shadow Minister for Small Business, Competition Policy and Consumer Affairs. Gone are the competition and consumer references. Let us hope the coalition does not believe the latter can be simply conflated into the category of small business - although the title change and August small business policy paper suggest otherwise. Yesterday I pointed to K&W Mallesons' In Competition Blog which expressed the view that the 'Coalition’s stated focus on the position of small business suggests a move away from the protection of the competitive process to the protection of the competitors.' Let us hope they are not too prophetic ... See further my blog piece here.
15 September 2013 - Thoughts on a root and branch review of competition laws
With the coalition's election victory it looks likely we will see a "root and branch" review of competition laws in the next 12 months. Peta Sevenson anmd Martine Phillips have posted on the proposed review over at King&Wood Mallesons' In Competition Blog - see 'Coalition to Uproot Competition Laws?' (9 September 2013).
13 September 2013 - ACCC will seek to join in Bradken appeal
The ACCC will seek leave to join the Bradken appeal against Justice Gordon's cartel ruling earlier this year. See ACCC Press Release, 'ACCC seeks leave to intervene in Bradken Limited & Ors V Norcast S.ar.L' (12 September 2013). 'See also John Durie, 'Bernie Brookes is paddling madly against the tide' (The Australian, 13 September 2013)
12 September 2013 - ACCC proposes to allow electricity generators to jointly negotiate
The ACCC is proposing to allow Qld power generators to jointly renegotiate coal supply arrangements with Aglo Coal. Submissions on draft determination can be made until 26 September. Final decision expected in October. View ACCC press release. View authorisation register.
12 September 2013 - ACCC will not opposed proposed acquisition by AGL of Australia Power and Gas
11 September 2013 - ACCC grants interim authorisation to Clubs Australia
10 September 2013 - Cement Australia decision handed down - no go on s 46 claim
The Federal Court has handed down its decision in ACCC v Cement Australia, finding that Cement Australia had breached section 45. The ACCC was, however, unsuccessful in its misuse of market power claim under section 46. See, for example, John Durie, 'Mixed success in ACCC case against Cement Australia' (The Australian, 10 September 2013) and Global Cement, 'Australia Cement broke competition law with fly ash contract' (10 September 2013). The full decision (apparently around 500 pages) has not yet been published. See also ACCC press release.
10 September 2013 - Claims ACCC is investigating egg prices for possible price fixing
According to the Australian Financial Review (Matthew Drummond, 'ACCC acts on egg industry cartel accusation', 10 Sept 2013 (page 3)), the ACCC is investigating whether large egg producers have been manipulating prices. See also Richard Gluyas, 'Watchdog is aiming to get a fix on the price of eggs' (The Australian, 10 September 2013) and 'ACCC acts on egg producers: report' (Business Spectator, 9 September 2013).
6 September 2013 - Alex Merrett on shopper dockets
Alexandra Merrett has a piece in the Australian on shopper dockets and whether they are anti-competitive. See 'Are shopper dockets anti-competitive? Good luck proving it' (The Conversation, 5 September 2013)
6 September 2013 - New ICN Chair
The International Competition Network has elected a new Chair, Andreas Mundt (current President of Germany's Bundeskartellamt). He takes over from Eduardo Perez Motta (Head of the Mexican Federal Competition Commission). There are currently 126 member agencies of the ICN. View statement by Andreas Mundt.
5 September 2013 - Sims speaks to American Chamber of Commerce
ACCC Chairman, Rod Sims, spoke to the American Chamber of Commerce in Melbourne today, outlining the key functions of the ACCC and major issues currently confronting the ACCC. In it, he notes (again!) that the ACCC will be taking more competition cases in future and highlights the ACCC's recent involvement in merger activity (including the flurry of merger announcements in the past couple of days). View press release (full speech not yet available)
5 September 2013 - ACCC not to oppose Air NZ's proposed acquisition of 6% of Virgin
The ACCC 'has announced that it will not oppose the proposed acquisition by Air New Zealand Limited (Air New Zealand) of an additional 6 per cent of Virgin Australia Holdings Pty Ltd (Virgin).' View press release. View merger register.
5 September 2013 - More merger divestiture remedies as ACCC indicates it will not oppose proposed Karrinyup Shopping Centre acquisition following divestiture remedy
The ACCC 'will not oppose the proposed acquisition of Karrinyup Shopping Centre by Westfield Group (Westfield) and Westfield Retail Trust (WRT) after accepting a court enforceable undertaking to divest their ownership of a nearby shopping centre at Innaloo'. View press release. View merger register (including s 87B undertaking (redacted)). The ACCC has indicated a public competition assessment will be published in due course)
4 September 2013 - ACCC not to oppose proposed global acquisition of Gambro by Baxter, subject to divestiture remedy
The ACCC 'will not oppose the proposed acquisition of Gambro AB by Baxter International Inc. after accepting an undertaking from Baxter to sell part of its Renal Replacement Therapy business.' View press release. View merger register (including s 87B undertaking). The ACCC has indicated a public competition assessment will be published in due course)
4 September 2013 - ACCC to reauthorise concrete cartage allocation system in Perth
3 September 2013 - ACCC conditionally reauthorises Virgin and Air NZ alliance
The ACCC 'has issued a final determination granting conditional authorisation until 31 October 2018 for Virgin Australia and Air New Zealand Limited to continue their trans-Tasman alliance'. Commissioner Dr Jill Walker stated that the ACCC 'considers that the alliance is likely to result in material public benefits by partnering Virgin Australia’s domestic Australian network and sales presence with Air New Zealand’s domestic New Zealand network and sales presence to contribute to the formation of a second integrated Australasian network'. View press release. View authorisation register. See further, Kim de Kock (King&Wood Mallesons), 'Virgin and Air NZ Cleared for Further Take Off' (4 September 2013)
3 September 2013 - Sims concerned with Qantas' price war comments
The ACCC's Rod Sims has expressed concern about comments made by Qantas boss Alan Joyce regarding capacity in the market. See John Durie, 'Qantas's Alan Joyce hits raw nerve at ACCC with capacity comments' (The Australian, 3 September 2013); Adele Ferguson, 'Watchdog queries Qantas comments' (The Age, 3 September 2013)
3 September 2013 - ACCC seeks views on Viterra's Port Terminal Access Arrangements
The ACCC 'invites submissions from interested parties in the bulk wheat export industry on Viterra’s application to extend and vary its 2011 Port Terminal Services Access Undertaking.' View press release. View issues paper.
1 September 2013 - Senate committee wants review of GrainCorp approval
A Senate committee (Rural and Regional Affairs and Transport References Committee), chaired by Bill Heffernan, released an Interim Report on 30 August calling on the ACCC to reopen is review of the proposed takeover of GrainCorp by Archer Daniels Midland, which it indicated it will not oppose on 27 June 2013. The 59 page report claims the ACCC did not 'have the necessary expertise to undertake a full and proper review of ADM's bid' and did not 'obtain independent expert advice or assistance' (para 2.33). It further states that 'the committee has significant doubts about the competition regulator's understanding of the grain sector or the implications of ADM's bid' (para 2.39) and that 'the importance of the grains industry to Australian farmers and to the national economy warranted a closer and more informed inspection by the ACCC.' (para 2.42) In particular, the committee expressed the view that the 'current cross-ownership arrangements in the Australian grain handling market were not properly considered in the [ACCC's] informal review of the takeover bid.' (para 4.2).
Specifically, the Senate Committee recommended: (1) that the ACCC re-open its informal review of ADM's proposed acquisition of GrainCorp and obtain independent expert advice when conducting that review; (2) that the Foreign Investment Review Board (FIRB) consider evidence from the committee's hearings, potential loss of taxpayer revenie, the potential for the takover to 'distort the capital market to the detriment of Australian farmers and Australia's economy due to food security concerns' and the need to 'protect the public interest and the interests of grain growers' when making its recommendation to the Treasurer.
See also, Michael Whitbourne, 'GrainCorp inquiry hears of intimidation tactics' (AFR, 16 July 2013), 'Senate calls for more scrutiny of Archer Daniels Midland' (The Rural, 2 September 2013), David Stringger, 'ADM’s Offer for GrainCorp Needs More Scrutiny, Lawmakers Say' (Bloomberg, 30 August 2013) and Business Spectator, 'Senate baulks at GrainCorp takeover' (31 August 2013).
29 August 2013 - ACCC does not oppose proposed acquisition by Woolworths of Queensland Supa IGA's
The ACCC has announced that it will not oppose the proposed acquisition by Woolworths Limited (Woolworths) of three Supa IGA supermarkets, located in Queensland' (Banksia Beach, Rasmussena nd Riverside Gardens), concluding that despite 'Woolworths’ increase in market share, it would remain constrained by other supermarkets in the local markets with different offerings'. View press release. View merger register.
29 August 2013 - ACCC releases public competition assessment for Sonic Healthcare
The ACCC has released its public competition assessment relating to its decision to opose the proposed acquisition by Sonic Healthcare of the pathology business of Healthscope Limited in Queensland and its decision not to oppose Sonic's proposed acquistion of the pathology business of Healthscope in Western Australia. The PCA comes more than 10 months after the ACCC announced its decision. View Merger Register.
28 August 2013 - ACCC does not oppose APA proposed acquisition of Enestra
The ACCC has indicated it will not oppose the proposed acquisition by APA Group of Envestra LIimited. The competition analysis states that, in relation to concerns about vertical integration 'APA's ability to engage in foreclosure strategies was limited by pricing regulation that applied to the Adelaide distribution network [and] the proposed acquisition was unlikely to provide APA with the incentive to foreclose rivals by providing discounts to (or otherwise favour) customers using the SEAgas instead of the competing Moomba to Adelaide pipeline in order to stimulate additional volumes over SEAgas. ...'. View merger register.
28 August 2013 - ACCC proposes to reauthorise collective negotiation by rural doctors
The ACCC has issued a draft decision proposing to allow the Rural Doctors Association of Australia and its state associations 'continue to collectively negotiate with state and territory health departments, on behalf of rural doctors.' View press release. View authorisation register.
28 August 2013 - Supermarket power and politics
Supermarket power is in the media again, with Malcolm Turnbull stating yesterday that he believed the leverage of the major supermarkets is 'without precedent anywhere else in the world' and their dominance 'extraordinary'. The coalition has re-iterated its promise to conduct a 'root and branch' review of competition law if elected. See Anna Vidot, 'Supermarkts have 'extraordinary' power: Turnbull' (ABC Rural, 27 August 2013)
19 August 2013 - Oligopoly Economy
There is an item in today's Australian by Damon Kitney and Andrew White - 'We are an oligopoly economy: Robb', describing opposition finance spokesman, Andrew Robb's, statements at the Global Food Forum series in Sydney, that Australians 'should not be opposed to create national champion's and claiming 'Australians need to accept that the nation is an "oligopoly economy"'.
15 August 2013 - ACCC releases June 2013 quarterly report
The ACCC has released its latest quarterly report. It notes, amongst other things, that the ACCC pre-assessed 87 potential mergers and reviewed 22 in the June quarter, including Virgin's acquisition of a stake in Tiger. Of these, two were opposed outright, in three the ACCC expressed concerns and in two cases variations to undertakings were accepted (the stat's on page 7 appear slightly out). View press release.
14 August 2013 - ACCC proposes not to accept Emerald wheat port access undertaking
The ACCC has issued a draft determination proposing not to accept Emerald Logistic Services Pty Ltd's proposed wheat port access undertaking; however a draft revised undertaking drafted by Emerald addresses ACCC concerns and, if re-submitted in that form, the ACCC is likely to accept it. View press release.
12 August 2013 - Sims' Law Council speech
ACCC Chairman, Rod Sims' address to the Law Council of Australia's Competition and Consumer Workshop is now available from the ACCC website. In it, he provides a tribute to Ron Bannerman, sets out regulatory issues for 2013, discusses the review of the Merger Review Process Guidelines, talks about compliance and enforcement, addresses some consumer issues and discusses ACCC engagement in the region.
Mergers: In relation to mergers Sims noted that the ACCC's 'main focus will be on a real world understanding of market structure and import competition, entry barriers, countervailing power and the overall competition process' rather than 'complex theories and detailed modelling'. He also noted that the ACCC was 'close to finalising the revised Process Guidelines', noting one of the key changes was to move away from the practice of setting 6-8 week standard review periods for all public merger reviews, noting that in complex cases reviews will often take longer than eight weeks and that in some cases review periods will be extended to coordinate reviews with other agencies. Sims also acknowledged concerns about the timeframes for publishing public competition assessments, noting that the ACCC has 'undertaken steps internally to streamline our processes for preparing PCAs' and will aim to publish within 30 days of announcing its final decision.
Compliance and enforcement: Sims noted that the ACCC wins around 80 per cent of cases it takes. Focus is consumer law, but Sims also focussed a lot on the 'largest penalties for cartel conduct in the history of the ACCC' - this is cumulatively and relates to the international air cargo cartel, for which many regulators can claim success. Sims also noted there had been five competition proceedings instituted in the 2011-2012 financial year (four alleging cartels and one (against Visa) alleging misuse of market power and exclusive dealing). Once again Sims promised more competition cases in the coming year. Sims also spoke about the ACCC's review of its immunity policy for cartel conduct, which he anticipates will be finalised in the coming months, with a discussion paper to be released in September.
International engagement: Sims noted that ACCC efforts to maximise engagement in the Asian region are continuing and that the ACCC will host the ICN annual conference in 2015.
9 August 2013 - Petrol wars and predatory pricing
Michael Bradley and Kiran Bath from Marque Lawyers have written a brief piece on 'Petrol wars and predatory pricing - the ACCC's latest rant on the mega merger duopoly'. Available from Mondaq and well worth reading.
9 August 2013 - Watchdog eyes supermarket muscle
Damien Carrick's The Law Report on Tuesday focussed on the ACCC's investigations into the Australian supermarket industry. Download audio and view related article.
9 August 2013 - Gilbert+Tobin State of M&A
Gilbert + Tobin have released their 'State of the M&A Nation 2013 Mid-Year Update' in which they observe (as others have) that the timeline for mergers requiring ACCC approval 'seem to be getting longer', with complex transactions expected to take approximately 26 weeks or more to review. They observe, however, that this has not led to increased oppositions, alathough there is a clear reluctance to approve mergers in concentrated industries. The report also discusses the impact of cross-border mergers requiring clearance in China; in particular, low threshold triggers and a 'notoriously slow' clearance process.
8 August 2013 - Westfield's proposed Karrinyup acquisition
Ben Wilmot has a piece in today's Australian on Westfield's proposed acquisition of the Karrinyup Shopping Centre: 'Westfield push for control in Perth' (8 August 2013). The ACCC commenced an initial review back in August 2011 which was suspended in December that year and a new informal review commenced 22 July 2013. Market Inquiry letters were sent on 25 July and interested parties have until tomorrow (9 August) to make submissions. View the ACCC's merger register.
6 August 2013 - International price discrimination and parallel importing
Mark McCowan and Alistair Newton from Corrs have a Mondaq piece on 'International price discrimination and parallel importing - Time to take a deep breath'. It is well worth reading.
6 August 2013 - ACCC reviews Envestra bid
The ACCC commenced a review of APA's bid for pipeline distributor, Envestra Ltd, on 26 July. Market inquiry letters were sent on 31 July and interested parties are invited to commend by 14 August. A decision is anticipated on 5 September. Matt Chambers has an item on the review in today's Australian: 'Envestra bid in ACCC's sights' (The Australian, 6 July 2013).
5 August 2013 - Sims says cut grocery prices not petrol
Matthew Drummond has a piece today ('Cut prices not petrol: ACCC' (AFR, 5 August 2013)) discussing Sims' comments on supermarket and shopper dockets and the lengthy decision making process for Telstra's bid for Adam Internet.
4 August 2013 - Interview with Rod Sims
Fairfax media has posted its full interview with Rod Sims online. The video runs for just over 25 minutes. View here.
3 August 2013 - Rod Sims, two years on ...
Fairfax media's Ruth Williams has an item today on Chairman Rod Sims - 'Competition boss wears frustrations of his post lightly'. It's a (relatively) lengthy piece covering Sims' two years at the helm of the ACCC.
1 August 2013 - Supermarket Power in Australia
Today a Public Symposium on Supermarket Power in Australia was held in Melbourne. The Symposium, organised by University of Melbourne's Competition Law & Economics Network and Monash University's Centre for Regulatory Studies, explored a wide range of issues arising from the structure of Australia's supermarket industry. The first sessions were devoted to industry structure and competition law issues, with a fascinating firstsession from Craig Woolford from Citi on Trends in the Australian Grocery Sector. This was followed by sessions from Dr Alexandra Merrett, former ACCC Chairman, Graeme Samuel and former ACCC Mergers Commissioner, Professor Stephen King assessing the state of competition in the supermarket industry in Australia and then by sessions from Professor Harmen Oppewal and Ms Rona Bar-Isaac offering some UK perspectives, including a video (available on YouTube) from new UK Groceries Code Adjudicator Ms Christine Tacon. Post lunch sessions deviated from a competition focus, addressing broader social issues surrounding the supermarket industry and the final session returned to a competition focus with Greens Senator Peter Whish-Wilson outlining the Greens' approach to competition in retailing. Plenty of media. See, for example, AAP, 'Supermarkets are competitive: ex-ACCC head' (news.com.au 1 August 2013) Rob Harris, 'Greens want to tackle supermarket duopoly' (Weekly Times, 1 August 2013), Matthew Drummond, 'Samuel ups ante on supermarkets' (The Land, 2 August 2013), Cameron Wilson, 'Supermarkets under the spotlight' (Bush Telegraph, 1 August 2013)
1 August 2013 - Greens release competition policy
Greens Senator Peter Whish-Wilson outlined the Greens' approach to competition in retailing (see also PDF policy outline) at today's Public Symposium on Supermarket Power in Australia in Melbourne. It comes as no big surprise that the focus is supermarket. The policy states that it will:
- placing a temporary ban on expansion by Coles and Woolworths, while the ACCC 'carries out an ex-post assessment into their decisions relating to the grocery market';
- prevent ' the supermarket duopoly from purchasing agricultural land, to ensure they aren’t able to completely control the whole supply chain';
- strengthen competition law 'to ensure companies are unable to abuse their market power, including giving the ACCC broad divestiture powers' which would allow them to 'split up companies who have too much market power'. Related to this, the policy states that it will outlaw price discrimination and introduce an effects test for misuse of market power (some of the many reasons for not doing this were expressed at the Symposium)
- extend the 'Australian Consumer Law framework dealing with unfair contract terms to business-to-business agreements involving small business and farmers';
- increase ' the resources and effectiveness of Australia’s competition watchdog ACCC' (including by providing the ACCC with a 50% incease ($100m) over current legal expense budget.
See, for example, Rob Harris, 'Greens want to tackle supermarket duopoly' (Weekly Times, 1 August 2013) and Alanand Peter Martin, 'Greens set to take on supermarket giants' (Sydney Morning Herald, 31 July 2013)
1 August 2013 - ACCC farewells Ron Bannerman
The ACCC has released a statement paying tribute to Ron Bannerman, former Chairman of the Trade Practices Commission, who passed away last Saturday. See 'ACCC says farewell to Ronald Moore Bannerman AO' (31 July 2013). For more detail on the role of Ron Bannerman in the development of Australian competition policy see also David Merrett, Stephen Corones and David Round, 'The introduction of competition policy in Australia: the role of Ron Bannerman' (2007) 47(2) Australian Economic History Review 178-199.
1 August - ACCC calls for comment on Perpetual's proposed acquisition of the Trust Company
31 July 2013 - ACCC releases Virgin/Tiger PCA
The ACCC has now released the Virgin/Tiger Airways Public Competition Assessment, just over three months after it announced its decision not to oppose the Virgin's 60% acquisition of Tiger Airways. View the merger register, including PCA. Last week the ACCC also released the PCA for the Heinz proposed acquisition of Rafferty's Garden, which it announced it would not oppose on 6 June 2013. View merger register and PCA.
29 July 2013 - ACCC press release on shopper dockets
The ACCC has issued a press release noting concerns expressed by Chairman Rod Sims about the escalating shopper docket petrol discounts. At a speech to the Australian Institute of Company Directors, SIms stated that the 'ACCC believes this activity is likely to have a negative impact on competition in the petrol industry' and is 'investigating whether the duration, frequency and extent of these fuel offers may have an adverse impact on the underlying level of fuel prices'. The press release also notes that the ACCC ivnestigation into shopper dockets by major supermarkets (which commenced mid-2012) is 'nearing completion' and will be finalised in the next few months. View press release.
23 July 2013 - Xenophon getting excited about competition policy again
Nick Xenophon is once again getting excited about competition law issues. This week he's targetting fuel discounters and Apple. See, for example, David Firth, 'Nick Xenophon sets ACCC tentacles on e-books' (The Australian, 23 July 2013, reporting that the ACCC has turned down Xenophon's request to investigate the pricing of electronic books in Australia and suggesting Xenophon petition the ACCC to investigate the price of Aussie seafood instead ...), 'Nick Xenophon calls for probe on Apple e-book 'rip-off'', AAP, 'Xenophon slams fuel discounts' (Business Spectator, 19 July 2013). He is also still pretty excited about supermarkets - see the transcript from his appearance on The Project, 18 June 2013 discussing his 'Reducing Supermarket Dominance Bill' (in which he describes teaming up with Bob Katter as a 'bromance' ...).
17 July 2013 - ACCC grants interim authorisation to Qld Power Generators
The ACCC 'has granted interim authorisation for Queensland power generators ... to jointly renegotiate existing coal supply arrangements with Anglo Coal.' View press release. View authorisation register.
16 July 2013 - Bradken appeal to be heard in November
The appeal from Justice Gordon's decision in Norcast S.ár.L v Bradken Limited (No 2)  FCA 235 will commence in Melbourne on 4 November 2013 and is estimated to run for up to 4 days. This follows Marshall ordered that the 'appeal be listed for hearing in the Full Court and Appellate Sittings of the Court in Melbourne commencing on 4 November 2013 before a Full Court, with an estimate of up to 4 days.' (orders of Justice Marshall on 12 July 2013).
15 July 2013 - ACCC takes action against Koyo for alleged cartel
The ACCC has instituted civil proceedings against Koyo Australia Pty Ltd for alleged cartel conduct in relation to the supply of ball and other roller bearings. It alleges Koyo and at least two competitors made and gave effect to two separate cartel arrangements for an increase in the price of bearings. View press release. A directions hearing is set for 14 August in Sydney.
13 July 2013 - ACCC to investigate alleged casino deal
The Age reports that the ACCC is investigating an alleged secret deal by James Packer to keep Crown out of Brisbane if Echo Entertainment agreed to let him into Sydney's market. View Mark Hawthorne and Ruth Williams, 'ACCC probe into Packer for casino 'secret deal'' (The Age, 13 July 2013). See also David Stringer, 'Australian Regulator to Check Report on Echo Chairman Comment' (BloombergBusinessWeek, 13 July 2013)
12 July 2013 - Competition law predictions for 2013/2014 financial year
Dr Martyn Taylor fron Norton Rose Fulbright has published his predictions for Australian competition regulation in the current financial year: see Martyn Taylor, 'Australian competition regulation: What should we expect for the 2013/14 financial year?' (July 2013). He also summarises key developments and trends over the last financial year.
11 July 2013 - Apple guilty of conspiracy to restrain trade
Ok, it's not Australian competition law news, but I could not resist. District Judge Denise Cote (US District Court for the Southern District of New York) has (in a brief 160 page judgment) has ruled that Apple facilitated and directly participated in a horizontal conspiracy with named publishers to 'eliminate retail price competition in order to raise e-book prices'. Apple, Judge Cote held, 'played a central role in facilitating and executing that consipracy' and without 'Apple's orchestration of this conspiracy, it would not have succeeded as it did ...'. Apple, the Court held, knew the publishers wanted to increase the price of e-books and 'seized the moment and brilliantly played its hand' taking advantage of the publishers' 'fear of and frustration over Amazon's pricing'.
'Through the vehicle of the Apple agency agreements, the prices in the nascent e-book industry shifted upward, in some cases 50% or more for an individual title. Virtually overnight, Apple got an attractive, additional feature for its iPad and a guaranteed new revenue stream, and the Publisher Defendants removed Amazon’s ability to price their e-books at $9.99.'
There's even a heading in the judgement 'Conspiracy by Telepathy'. Judge Cote concluded that 'by by a preponderance of the evidence that Apple conspired to restrain trade in violation of Section 1 of the Sherman Act'. Well worth reading. View case. See also Competition Policy International, 'US: Verdict is in for Apple in ebooks case' with some brief commentary and links to other relevant content.
10 July 2013 - ACCC proposes to conditionally reauthorise Virgin and Air NZ trans-Tasman alliance
The ACCC has issued a draft determination 'proposing to grant conditional authorisation for three years for Virgin Australia and Air New Zealand Limited to continue their trans-Tasman alliance.' View press release. View authorisation register.
4 July 2013 - ACCC will not oppose proposed acquisition of Hawker Supa IGA by Woolworths
1 July 2013 - ACCC releases draft Merger Review Process Guidelines
The ACCC has released its draft Merger Review Process Guidelines. Public consultation will run from 1 July - 19 July. See press release. There is some useful firm commentary on this. See, for example, notices from Allens><Linklaters and Clayton Utz.
28 June 2013 - Competition watchdog's investigation into major supermarkets
ACCC Executive General Manager, Marcus Bezzi, spoke to the Victorian Farmers Federation today about the ACCC's investigation into major supermarkets. View speech.
27 June 2013 - ACCC issues updated authorisation guidelines
The ACCC has updated its authorisation guidelines. Key changes include 'an explanation of the current practice of the ACCC in adopting a market failure framework for assessing public benefits and detriments', 'clarification of the ACCC’s approach to identifying the "future with and without"', 'recognition that the ACCC’s power to grant authorisation is discretionary' and 'clarification of the ACCC’s power to impose conditions when it grants authorisation.' View press release.
27 June 2013 - ACCC does not oppose Archer Daniels Midland acquisition of Graincorp
27 June 2012 - Interim authorisation for concrete carrier allocation system
'The ACCC has granted interim authorisation to Holcim (Australia) Pty Ltd to extend the operation of its cartage allocation system for concrete carriers in Western Australia.' View press release. View authorisation register.
26 June 2013 - ACCC proposes to authorise joint tenders for waste collection and recycling
The ACCC has released a draft determination proposing to authorise 'Wollongong City Council and Shellharbour City Council to jointly tender and contract for waste collection services and the processing of recyclable material.' Parties wishing to make submissions can do so until 12 July. View press release. View authorisation register.
20 June 2013 - Does cartel immunity really work?
Professor Caron Beaton-Wells has an item in today's conversation discussing cartel immunity policies - 'Does immunity for cartel whistelblowers really work?'. It focuses on the ACCC's current review of Australia's cartel immunity policy.
20 June 2013 - ACCC proposes refusing ophthalmologist authorisation
19 June 2013 - Road to competition reforms: the Australian experience
ACCC Chairman, Rod Sims, spoke to Latin American and Caribbean officials and regulators at a World Bank Group/INDECOI event today. View press release. View speech: 'Making markets work for increased productivity and growth: the Australian Experience'.
18 June 2013 - Another private member's bill attacks supermarkets
The other private member's bill introduced yesterday was the Supermarket Dominance Bill 2013. This one was circulated by Bob Katter MP and supported by the collective wisdom of Nick Xenophon MP and Andrew Wilkie MP. This would make it an offence (subject to $50m penalty) to operate a supermarket business where that business (and related supermarket businesses) has a supermarket market share of: more than 40% for year 2 or more than 35% for year 3 etc to more than 20% for any later year. Essentially it requires reduction in market share of the major supermarkets to no larger than 20% progressively over a six year period. Other similar offences are included. It goes beyond supermarket retailing to 'household retail businesses' as well, aiming to 'ensure that the supermarket giants’ vast operations in “household retail businesses” are progressively reduced to 20% total market share throughout a 6 year period' (EM). The bill also involves setting up a Commissioner for Food Retailing. This is one of the strangest bills I've read ... and there have been some shockers relating to competition policy in Australia. Margy Osmond of the ANRA has described the bill as 'ill-conceived and populist' (see Jacob Greber and Claire Stewart, 'MP's pressure supermarkets' (Australian Financial Review, 18 June 2013). Hard to argue with that assessment.
18 June 2013 - Private member's bill on market power
The Competition and Consumer Amendment (Strengthening Rules About Misuse of Power) Bill 2013 was introduced into the House yesterday. It proposes insertion of a subsection (1AAAA)!!! This involves an effects based test for conduct engaged in by corporations with substantial market power. It also proposes further investigation powers for the ACCC where the ACCC 'reasonably believes that circumstances exist to indicate that there has been or might be a contravention of section 46'. It is a private members bill introduced by independent MP, Rob Oakeshott . The EM talks a lot about cheap milk. Rob Oakeshott's press release emphasises the bill's aim to 'help farmers'.
11 June 2013 - Coalition supports ACCC Woolworths decision
The financial review reports that the Coalition is supporting the decision of the ACCC to block Woolworths' acquisition of a supermarket site at Glenmore Ridge. See Joanna Heath and Matthew Drummond, 'Coalition supports ACCC veto of Woolworths store' (Australian Financial Review, 11 June 2013)
7 June 2013 - Media on ACCC merger decisions
Plenty of media on yesterday's ACCC's merger decisions and, according to Sue Mitchell at the AFR, Woolworths is considering challenging the ACCC's decision. See, for example, Sue Mitchell, 'Woolworths to take on ACCC over sites' (AFR, 7 June 2013); John Durie, 'Consumers see Aldi as an alternative but the ACCC seems not to' (The Australian, 6 June 2013); John Durie, 'Ailing industries need innovation, not government aid' (The Australian, 7 June 2013) (stating, in part, that the 'decision itself should be challenged because it rests in the argument that consumers won't travel 10 minutes down the road to look for alternative supermarkets'); 'Woolworths mulls ACCC appeal' (Business Spectator, 7 June 2013); Greg Roberts, 'ACCC blocks new Woolies store' (The Australian, 6 June 2013) and plenty more.
6 June 2013 - ACCC opposes Heinz and Woolworths' acquisitions
The ACCC has announced it will oppose the proposed acquisition of Rafferty's Garden by Heinz and the proposed acquisition by Woolworths of a supermarket site at Glenmore Ridge. See Heinz/Rafferty's Garden press release. See Woolworths/Glenmore Ridge press release.
6 June 2013 - ACCC opposes Heinz and Woolworths' acquisitions
The ACCC has announced it will oppose the proposed acquisition of Rafferty's Garden by Heinz and the proposed acquisition by Woolworths of a supermarket site at Glenmore Ridge. See Heinz/Rafferty's Garden press release. See Woolworths/Glenmore Ridge press release.
5 June 2013 - ACCC set to rule on key mergers
The ACCC is scheduled to announce a final decision in relation to two key merger proposals tomorrow. The first is the proposed Heinz takeover of Rafferty's Garden. The ACCC commenced its review on this one on 29 October 2012 and released a Statement of Issues on 7 February this year. The other releates to Woolworth's proposed acquisition of a supermarket site at Glenmore Ridge. This review commenced on 20 June 2012 and a Statement of Issues was released on 20 September. See also John Durie, Competition Watchdog set to rule on retail giants (The Australian, 5 June 2013).
4 June 2013 - ACCC releases new Service Charter
30 May 2013 - ACCC finalises wholesale prices for broadband services on Telstra's copper network
The ACCC has announced it has today published its Final Access Determination (FAD) setting out the price and non-price terms for wholesale ADLS services. View press release. View FAD. Plenty of media on this. See, for example, James Hutchinson, 'ACCC reduces wholesale broadband prices' (AFR, 30 May 2013) and Jordan Chong, 'ACCC lowers wholesale broadband prices' (The Australian, 31 May 2013)
30 May 2013 - ACCC does not oppose Ruralco's proposed acquisition of Elders Rural Services
29 May 2013 - ACCC allows RACQ Approved Repairers to offer reciprocal warranty repairs
The ACCC has granted authorisation to 'the RACQ and its Approved Repairers to allow them to set the labour rate for warranty repairs undertaken by another Approved Repairer.' View press release. View authorisation register.
29 May 2013 - ACCC proposes to authorise collective bargaining by Qld newsagents
The ACCC 'proposes to authorise the Queensland Newsagents Federation and its members to collectively bargain with Tatts Group and its subsidiary Golden Casket for five years in relation to lottery products.' Interested parties wishing to comment on teh draft determination must do so by 21 June 2013. View press release. View authorisation register.
28 May 2013 - Productivity Commission released Draft Report on National Access Regime
The Productivity Commission has released it's draft report on the National Access Regime. Submissions on this report are due by Friday 5 July 2013. The final report is expected in October.
28 May 2013 - New State of Competition Out Now
This month's State of Competition (Issue 12 (May 2013)) by Rachel Trindade, Rhonda L Smith and Alexandra Merrett asks "The Australian difference: has the public benefit test been eroded?'" As always, well worth reading, particularly in light of the ACCC's review of its authorisation guidelines.
28 May 2013 - ACCC reviews its immunity policy
Earlier this month, at the Competition Law Conference (4 May), the ACCC announced it would conduct a review into its immunity policy. Clayton Utz has produced a neat little note about this. Unlike the authorisation review, no information about the review seems to have been provided on the ACCC's website.
27 May 2013 - ACCC commences inquiry into access to mobile networks
The ACCC has 'commenced a public inquiry to decide whether to extend, vary or revoke the domestic mobile terminating access service (MTAS) declaration, or whether to make a new declaration.' View press release. View inquiry home page.
22 May 2013 - ACCC proposes to allow joint tender for recycling services to councils
The ACCC has issued a draft determination proposing to authorise a number of inner-Sydney councils to jointly tender and contract for trhe processing of dry recyclable material. View press release. View authorisation register.
21 May 2013 - ACCC merger review update
In the past week the ACCC has commenced a number of new informal merger reviews, including Woolworths' proposed acquisition of Supa IGA at Riverside Gardens, Bansia Beach and Rusmussen (commenced 14 May; submissions from interested parties due 4 June; proposed final decision: 4 July), Peregrine Corporation's proposed acquisition of 25 BP Australia's petrol retail sites in South Australia (commenced 15 May; submissions from interested parties due 20 June; proposed announcement of ACCC decision: 26 September) and Perpetual Limited's proposed acquisition of The Trust Company Ltd, for which a market inquiries letter has now been published (commenced 16 May; submissions due 7 June; proposed date for announcement of ACCC decision: 11 July).
13 May 2013 - Mergers: A 20 year retrospective
The presentation made by ACCC Commissioner, Jill Walker and ACCC Executive General Manager (Legal Group), Tim Grimwade, at the recent Competition Law Conference is now available to view online (PDF) - well worth a look. View presentation.
9 May 2013 - ACCC releases quarterly report
- eight carry over cases and one new case alleging misuse of market power (the Visa proceedings, initiated in Sydney on 4 Feb, alleging Visa 'misused its market power for the purposes of preventing the expansion of DCC to new merchant outlets in Australia and preventing businesses in Australia from supplying DCC services on ATMs in competition with Visa’s own currency conversion service'). The eight ongoing cases include seven involving allegations of cartel or price fixing conduct and one involving misuse of market power (Cement Australia; commenced 12 September 2008 and still awaiting decision).
- one s 87B undertaking for alleged anti-competitive behavior by All Homes Pty Ltd.
- 65 mergers considered (51 pre-assessed as not requiring review; of the remaining matters 12 were cleared unconditionally, one was cleared on a confidential basis and in the remaining case the ACCC 'formed the view that it could nto make a decision without conducting public inquiries'). The document summarises the more significant merger reviews.
- Eight draft authorisation decisions, 12 final authorisation determinations and 6 interim decisions were made this quarter, the most significant being the Qantas/Emirates authorisation.
- Ninety-six exclusive dealing notifications were received and 78 were allowed to stand (the report sets out the more significant notifications). There was only one collective bargaining notification lodged during htis period - that was by the Manning Valley dairy farmers (these were lodged on 25 March so a decision was not made in the quarter; however, on 18 April the notifications were allowed to stand).
- Continuing investigations include price information sharing between fuel companies, shopper docket schemes, supermarket conduct (including allegations of MMP) and online competition issues.
- The revised Compliance and Enforcement Policy was also released in February.
8 May 2013 - ACT dumps controversial supermarket competition policy
The ACT government has dumped the supermarket competition policy it released in 2010 following a review of the existing policy by former ACCC commissioner John Martin. See, for example, Lisa Moley, 'ACT slashes supermarket competition policy' (ABC News, 7 May 2013)
6 May 2013 - Draft authorisation guidelines
4 May 2013 - Competition Law Conference
The Hodgekiss' put on another terrific Competition Law Conference in Sydney today, featuring, amongst others, The Honourable Dyson Heydon AC (Is the Competition and Consumer Act 2010 (Cth) in competition with itself?), Dr Jill Walker and Tim Grimwade from the ACCC (Mergers - A 20 Year Retrospective), Luke Woodward (Current Issues in Merger Reviews), Professor Stephen Corones and Carolyn Oddie (The Pitfalls of Public Announcements) and Professor Caron Beaton-Wells and Marcus Bezzi (The ACCC Immunity Policy for Cartel Conduct: Due for Review?). Look out for the 25th Anniversary of the conference in May 2014.
2 May 2013 - ACCC proposes to allow RACQ and approved retailers to set labour rate for warranty repairs
The ACCC has issued a draft determination proposing to allow the 'RACQ and its Approved Repairers to set the labour rate for warranty repairs undertaken by another Approved Repairer. “Under the proposed repair warranty scheme, any defects in an original repair can be fixed by any RACQ Approved Repairer at no cost to the member.”'. The ACCC considers taht any detriment associated with the agreement would be 'limited by the competitive nature of the automotive repair industry in Queensland'. View press release. View authorisation register. Submissions from interested parties should be made by COB 16 May 2013.
30 April 2013 - ACCC's Airport report card
The ACCC has released its annual report on the major airports (Airport Monitoring Report 2011-2012), finding that airports remain profitable but service has dropped. See ACCC Press release. See, eg, Steve Creedy, 'Airports in profit, but service suffers, ACCC report finds' (30 April 2013)
29 April 2013 - ACCC monitoring Archer Daniels possible takeover of Graincorp
The ACCC is now monitoring Archer Daniels Midland Company's possible takeover of GrainCorp Limited. View merger register. Plenty of interest in this. See, for example, ABC News, 'VFF keen for ACCC view of GrainCorp takeover' (29 April 2013), Sue Neales and Andrew White, 'ACCC to probe $3.4bn foreign GrainCorp sale' (The Australian, 27 April 27), 'ADM's GrainCorp bid under fire' (Business Spectator, 29 April 2013) and Blair Speedy and Sue Neales, 'Analysts await details of financing for ADM's GrainCorp bid' (The Australian, 29 April 2013).
29 April 2013 - ICN 12th annual meeting
The International Competition Network (ICN) held its 12th annual meeting on 24-26 April 2013, in Warsaw, Poland. See ACCC Press Release. View program and documents (including Statement of Achievements 2001-2013 and, of particular interest, the Report on the OECD/ICN Survey on International Enforcement Co-operation (all 251 pages)).
24 April 2013 - Abbott's proposed competition review
The AFR had an item on Abbott's planned competition law review yesterday: Fleur Anderson, 'Abbott plans laws inquiry' (Australian Financial Review, 23 April 2013, page 8). The article claims the Coalition is planning a 'Henry reviewstyle inquiry into competition laws, including an investigation into the market dominance of supermarket chains, within the first 100 days of an Abbott government'. It claims the inquiry will be the first since Hilmer in 1993 (apparently they overlooked the Dawson Inquiry). The article notes opposition small business spokesman, Bruce Billson, is drafting the terms of reference for the review. If you don't have an AFR subscription, you can also find the article on 'The Land'.
24 April 2013 - Sims speeks to World Bank Forum on Australian competition policy
ACCC Chairman, Rod Sims, has delivered a speech to a World Bank Forum in Poland entitled 'Making markets work for development: A reform agenda on competition'. View press release.
24 April 2013 - Tribunal releases reasons for decision re: CBH notification
The Tribunal has now published its reasons for decision in Application by Co-operative Bulk Handling Limited (No 3)  ACompT 3, redacted in respect of commercially confidentail information (it still runs to 88 pages, so make sure you brew a decent cup of coffee before settling down for a read).
The ACCC has announced it will not oppose Virgin Australia’s proposed acquisition of 60% of Tiger Australia. ACCC Chairman, Rod Sims, stated that the ACCC's view was that 'this acquisition is unlikely to lead to a substantial lessening of competition in the Australian market for domestic air passenger transport services'. This was based largely on their assessment that 'Tiger Australia would be highly unlikely to remain in the local market if the proposed acquisition didn’t proceed'. The ACCC's review commenced on 2 November 2012; the timeline for review was suspended twice. View ACCC press release. View merger register. See also plenty of commentary on this - for example, Matt O'Sullivan, 'Green light for Virgin-Tiger deal' and 'Virgin-Tiger deal: short-term pain, long-term gain' (The Age, 23 April 2013), Samantha Donovan, 'ACCC Clears Virgin-Tiger merger' (ABC news (transcript of interview with Rod Sims), 23 April 2013) 'Matthew Smith, 'Back to a duopoly: ACCC removes chocks on Virgin-Tiger deal' (BRW, 23 April 2013), Steve Creedy, 'Jobs and aircraft saved as watchdog approves Virgin Australia-Tiger deal' (The Australian, 24 April 2013) and plenty more.
23 April 2013 - Alexandra Merrett on Coles' New Milk Deal
Alexadnra Merrett has an opinion piece in The Conversation: 'Coles' milk deal gives supermarket suppliers a reason to be sour'. Well worth a read, as always.
22 April 2013 - ICC releases Antitrust Compliance Toolkit
The ICC has released an Antitrust Compliance Toolkit designed for business and focussing on 'practical steps companies can take internally to embed a successful compliance culture'. View press release with link to free downloadable PDF toolkit.
19 April 2013 - Tribunal affirms ACCC's CBH notification ruling
The Tribunal has affirmed the ACCC's decision to revoke Co-operative Bulk Handling Limited's (CBH's) exclusive dealing notification, 'which allowed CBH to require Western Australian grain growers and marketers who use its 'up-country' storage facilities to also use its transport services to deliver grain to port for export.' View press release. View ACCC notification register. View Tribunal ruling (Application by Co-operative Bulk Handling Limited (No 3)  ACompT 3 ) (note, reasons for ruling to be published on 24 April).
18 April 2013 - Manning Valley Dairy farmers may collectively bargain with Woolworths
The ACCC has approved an application by Manning Valley Dairy Farmers to collectively bargain with Woolworths and Milk2Market for a period of three years. View press release. View public register. See also, Kim Honan, 'Woolworths dairy farmers given tick' (18 April 2013, ABC Rural)
18 April 2013 - Sims speaks on Access Regulation
ACCC Chairman, Rod Sims, addressed a Gilbert + Tobin Lawyers competition policy workshop in Sydney today to outline the Australian approach to infrastructure access regulation, which he described as working well. However, he argued the test for coverage 'should be based on the economics of natural monopoly', rather than the private profitability test recently applied by the High Court. View press release. View speech.
17 April 2013 - ACCC authorises RWWA and Sportingbet agreement
The ACCC has 'granted authorisation to Racing and Wagering Western Australia (RWWA) for an agreement to acquire fixed odds management services from Sportingbet Australia Pty Ltd'. View press release.
17 April 2013 - ACCC authorises agreement between Tabcorp and ACTTAB
The ACCC has 'granted authorisation to Tabcorp Wagering Manager (Vic) Pty Ltd (Tabcorp) for its agreement with ACTTAB Limited (ACTTAB) to provide fixed odds wagering management services'. View press release.
11 April 2013 - Clock back on Virgin-Tiger deal
The ACCC has re-started the clock on their review of the Virgin-Tiger deal after receiving more informatoin from the parties (the timeline was suspended on 8 March). A decision is now expected on 24 April. View merger register. See also John Durie, 'Virgin line on Tiger requires leap of faith' (The Australian, 12 April 2013) and Ben Sandilands, 'ACCC resets the clock on Virgin-Tiger deal' (Crikey, 16 April 2013)
11 April 2013 - ACCC clears Agrium Inc's proposed acquisition of Viterra's agri-products retail business
The ACCC has announced it will not oppose Agrium Inc's proposed acquisition of 'Viterra Inc's farm supply agri-products retail business, fertiliser importation and wholesaling business, and wool broking and exporting businesses'. View merger register.
11 April 2013 - ACCC clears Reece's proposed acuisition of Ken Aaron consolidated plumbing
The ACCC has not opposed the proposed acquisition of Ken Aaron consolidated plumbing group. View merger register.
10 April 2013 - ACCC clears dnata's proposed acquisition of aircraft cabin cleaning business
The ACCC has not opposed the acquisition by dnata (which forms part of the Emirates Group) of 'the aircraft cabin cleaning business of Broadlex Air Services Pty Ltd'. View merger register.
5 April 2013 - New State of Competition Out Now
TGIF - a new TSOC to brighten up our inboxes. This time Rachel Trindade and Alexandra Merrett discuss 'A road map to statutory immunity in Australia', looking at Australia's authorisation and notification processes. Read it now at The State of Competition.
4 April 2013 - ACCC issues draft NBN decision
The ACCC has released a draft decision on NBN Co's revised Special Access Undertaking. View ACCC press release. Plenty of media on this. See: Supratim Adhihari, 'ACCC's NBN access noose' (Business Spectator - Technology Spectator, 5 April) and Peter Cai, 'ACCC seeks more control on NBN prices' (The Age, 5 April 2013)
4 April 2013 - ACCC grants interim authorisation to councils
The ACCC has granted interim authorisation to Wollongong City Council and Shellharbour City Council 'to enable them to request and evaluate tenders for the collection of waste and the processing of recyclables'. View ACCC press release.
28 March 2013 - Virgin and Tiger - the wait continues
Adele Fergusen has an item in The Age today about the ongoing delay in assessing the Virgin/Tiger merger: see Adele Ferguson, 'Virgin has Tiger by the tail as ACCC dawdles' (The Age, 29 March 2013). View ACCC merger register.
28 March 2013 - ACCC approves proposed acquisition of Australian Local Search Pty Ltd (trading as TrueLocal) by Sensis Pty Ltd
The ACCC has indicated it will not oppose the proposed acquisition by Sensis of TrueLocal. View merger register. See also 'ACCC approves Sensis acquisition of TrueLocal' (The Australian, 28 March 2013)
27 March 2013 - ACCC allows dentists in shared practices to agree on fees
The ACCC has granted authorisation to allow dentists who share practices to agree on fees, provided on party is a member of the Australian Dental Association. View ACCC press release.
The ACCC has granted authorisation for the proposed Qantas/Emirates alliance until 31 March 2018. The authorisation is conditional on the airlines maintaiing 'at least their pre-alliance aggregate capacity on the four overlapping trans-Tasman routes, subject to a review to consider whether increases in the minimum required capacity are warranted'. View press release. View authorisation register (on transition site). View Qantas/Emirates press release. See also 'ACCC approves Qantas-Emirates deal: the experts respond' (The Conversation, 27 March 2013) (authored by Sunanda Creagh and involving interviews with David Beirman, Tony Webber and Hamza Bendemra).
27 March 2013 - Sims speeks to National Press Club
ACCC Chairman, Rod Sims, spoke to the National Press Club today, outlining the ACCC's 'role in making the market economy work as it should for all Australians'. View press release. View speech: 'Economic philosophy and the ACCC (and we are all economic philosophers)'.
26 March 2013 - ACCC authorises coordination between Jetstar branded joint ventures
The ACCC has granted authorisation to Qantas and Jetstar 'for coordination involving four Asian based Jetstar branded joint ventures: Jetstar Asia, Jetstar Pacific, Jetstar Japan and Jetstar Hong Kong until 31 March 2018'. The ACCC considers the coordination is likely to benefit consumers and produce little, if any, detriment, given existing level of competition. View press release. View authorisation register (on transition site).
22 March 2013 - IBA 9th Competition Mid-Year Conference
The ACCC is hosting the IBA's 9th Competition Mid-Year Conference in Sydney. ACCC Chairman, Rod Sims, opened the event yesterday, again noting that the 'ACCC has in the order of 30 in-depth competition investigations, under way covering many fascinating issues", including around 10 relating to cartels and 10 to misuse of market power. The conference concludes today. See press release. Read Sims' opening address. View conference program.
21 March 2013 - ACCC does not oppose CBA's proposed acquisition of Aussie Home Loans
The ACCC has announced it will not oppose the CBA's 'proposed acquisition of the remaining 67% of the issued capital in AHL Holdings Pty Limited (Aussie Home Loans)'. ACCC commenced review on 11 January and lists review days as 40 (excluding weekends, public holidays and suspension while further information sought from 8-19 February). Actual days from commencement was 70. View press release. View merger register (transition site). See also Clancy Yeates, 'ACCC signs off on CBA stake in Aussie' (Brisbane Times, 21 March 2013)
20 March 2013 - ACCC authorises collective bargaining with Tatts
The ACCC has 'issued a final decision allowing the Australian Newsagents’ Federation (ANF) and its members to collectively bargain with Tatts Lotteries SA for a period of five years.' View press release. View authorisation register (transition site).
Justice Michelle Gorden handed down her decision in the Bradken case yesterday, ordering Bradken executives to pay $21m in damages for bid-rigging. This represents the first case under the CCA's new cartel laws. See, eg, Glenda Korporaal, 'Court orders Bradken executives to pay $21m damages' (Australian, 20 March 2013)
19 March 2013 - Media Mergers
The issue of media mergers is back in the news as the Senate Standing Committees on Environment and Communications review the government's Media Reform Bills Package, introduced into the House on 14 March. The first public hearing was held in Canberra yesterday and continues today. Kicking off proceedings at 12:40pm will be the Hon Ray Finkelstein QC, former President of the Competition Tribunal and chair of the Independent Media Inquiry (2011-2012). Other witnesses include the CEO of the ACCC, Mr Brian Cassidy and Ms Rose Webb, Executive General Manager, ACCC Mergers and Adjudication Group. Of most interest for competition law purposes is the Broadcasting Legislation Amendment (News Media Diverstiy) Bill 2013 which, if passed, will add a public interest test (focussing on substantial lessening of diversity) - for media mergers, to be determined by a Public Interest Media Advocate (PIMA). This will apply over and above the s 50 SLC test.
For media see AAP, 'ACCC should judge merits of media mergers: Nine' (Business Spectator, 19 March 2013) and Ben Packham and David Crowe, 'Regional networks divided over proposed changes to TV reach rules' (The Australian, 18 March 2013). See also Matthew Drummond and John McDuling, '' 'Sims open door to more media mergers' (Australian Financial Review, 6 March 2013). Submissions on these bills are due by 26 April 2013 with a reporting date of 17 June. To date, submissions have been received from 'Save Our SBS Inc', Seven West Media, Network Ten and Dr Margaret Simons (Director, Centre for Advancing Journalism, University of Melbourne).
19 March 2013 - 'Son of Hilmer' Competition Review in coalition sights
Shadow Minister for Small Business, Competition Policy and Consumer Affairs, Bruce Billson has been speaking - again - of a full 'son of Hilmer' review of competition laws if the coalition takes government. Once again misuse of market power provisions have been signled out for attention, with Billson seeing value in an 'effects' test. See, for example, John Rolfe, 'Coalition's Bruce Billson wants to rewrite CCC misuse of market power laws' (The Daily Telegraph, 18 March 2013). See also my 2013 fortune telling note in the CPI Antitrust Chronicle (expressing concerns about politicisation of competition policy in the lead up to the federal election).
14 March 2013 - Collective bargaining for central Qld coal producers authorised
The ACCC has granted authorisation for central Qld coal producers to 'collectively bargain with Adani Mining for access to its new coal terminal at Dudgeon Point, and with Aurizon Network (previously QR Network) for access to below rail infrastructure to transport their coal to the terminal.' View press release. View public register (on the transition site)
28 February 2013 - Link issues
One consequence of the ACCC's new website is that (for reasons unknown - possibly just to annoy me) most URL's have now changed. As a result, all links on this site to past ACCC press releases are now dead. The ACCC site is currently in a transition mode, so links to merger registers, guidelines etc still seem ok (they lead to old style pages), but are likely to die as these pages transition to the new format (I don't know why they released the new site before this was complete). I will endeavour to update key links as the transition progresses, but there will no doubt be some glitches with links during this process so please bear with me ... all new media and register links should be fine.
28 February 2013 - ACCC grants interim authorisation to Queensland Newsagents Federation
The ACCC 'has granted interim authorisation to the Queensland Newsagents Federation (QNF) to allow it and its members to collectively bargain with Golden Casket.' View press release. View authorisation register.
28 February 2013 - ACCC grants authorisation to freelance playwrights for ten years
The ACCC 'has authorised the Australian Writers’ Guild (AWG) to collectively negotiate the terms of engagement of freelance playwrights with the Major Performing Arts Board Theatres and any other major theatre company that may wish to participate for ten years.' View press release. View authorisation register.
27 February 2013 - ACCC and NZCC sign cooperation agreement
The ACCC and NZCC signed a cooperation agreement today to 'share compulsorily acquired information and provide investigative assistance'. Sims claims that, with this agreement, 'we now have what is probably the most complete set of cooperation arrangements in place globally - outside countries who have established cross border enforcers, such as the EU'. View press release. View Sims' speech. View agreement (unfortunately just a pretty bad quality scan). Other agreements can be viewed on the ACCC's Treaties and Agreements page.
27 February 2013 - ACCC grants interim authorisation for inner Sydney councils
The ACCC has 'granted interim authorisation to a number of inner Sydney councils' to enable them to 'request and evaluate new tenders for the processing of dry recycling material within the Sydney metropolitan area'. View press release. View authorisation register (still on transition site, so apologies if the link dies)
27 February 2013 - ACCC releases quarterly report
27 February 2013 - ACCC website gets an overhaul
This week the ACCC launched its new web site. It looks better. Usability yet to be tested. They've also beefed up their social media presence - they've added Twitter and Facebook feeds as well as adding to their YouTube channel.
The ACCC's new Compliance and Enforcement Policy was released today, outlining 'the ACCC's priority areas for the year and sets out the factors to be taken into account when deciding whether to pursue matters.' The document itself runs to 5 pages (including a cover page). View press release. View Sims' speech, launching the new policy, at a CEDA function in Sydney. There is nothing much new on the competition law front, other than Sims' repeated promise that we can expect 'an increase its rate of intervention in competition matters' by the ACCC. Reference to prioritising concentrated sectors, particularly supermarkets and fuel also came as no surprise.
In his speech Sims spoke a bit about mergers (there is not a single reference to mergers in the Policy document itself). He noted that 'ACCC has responded to calls by the trade practices and business community for increased transparency and engagement with the ACCC during the course of merger reviews', but also noted that the 'increased level of transparency and engagement must, however, slow the process down' (it has been widely observed tha the process has slowed since the Metcash decision; see, for example, 'Howzat! The War on Mergers' from the crew at State of Competition) In his speech he went on to say that the ACCC is revising its Informal Merger Process Guidelines and will be consulting with stakeholders on a revised draft in the coming months.
21 February 2013 - ACCC allows GPs to set practice prices
The ACCC has granted authorisation 'to allow individual General Practitioners (GPs) working in shared practices to set prices and collectively bargain'. View press release. View authorisation register.
21 February 2013 - ACCC goes after cartels
The Age reports that the ACCC will announce today that up to '30 in-depth investigations into cartel conduct and anti-competitive behaviour are under way'. In a speech to the Centre for Economic Development in Australia (CEDA), ACCC Chairman, Rod Sims, will speak about the ACCC's focus on 'competition and consumer issues arising in highly concentrated sectors, and in particular the supermarkets and fuel sectors': see Lucy Battersby, 'Watchdog gets tough on retail' (The Age, 21 February 2013). The focus of supermarkets and fuel is nothing new - the ACCC has been talking about it for some time - but it will be worth having a look at the speech to see if any further detail is released. The speech will be delivered in Sydney at noon with the topic - 'Australia's competition landscape - making markets work' - view CEDA event page. Speech now available here.
20 February 2013 - Alexandra Merrett on the ACCC's shopper docket investigations
Alex Merrett has an item in The Conversation today, wonderfully entitled: 'ACCC grocery inquiry will take a long time to bear fruit'. In it, she discusses shopper dockets and other misuse of market power claims against the supermarket being investigated by the ACCC. It's always worth reading Alex's pieces - this one's no exception - just go and do it.
20 February 2013 - The State of Competition returns for 2013
Alexandra Merrett, Rhonda Smith and Rachel Trindade have just released the first 'State of Competition' for 2013 and fear of the possible political uses to which competition law might be put in the upcoming election has led them to address the question: 'what is the Act supposed to achieve?' View the State of Competition website.
20 February 2013 - ACCC approves coal collective bargaining
The ACCC 'has released its final determination allowing Cockatoo Coal, Cuesta Coal, MetroCoal, Peabody Energy Australia PCI, QC Resource Investments and Whitehaven Coal to collectively negotiate with SunWater for water supply, in relation to the development of the Nathan Dam project in central Queensland.' The authorisation is for an initial period of 23 years. View press release. View authorisation register.
19 February 2013 - Christine Parker on the supermarket duopoly
Christine Parker has an item in the Conversation today discussing issues associated with the market power of Coles and Woolworths, prompted by the ACCC's investigations into allegations of unconscionable conduct. View article.
15 February 2013 - ACCC refuses request to release redacted version of its Master Coordination Agreement with Emirates
As part of it's ongoing consideration of the Qantas/Emirates authorisation application the ACCC has asked Qantas to release a redacted version of its MCA with Emirates; Qantas has refused, claiming that its 'applications and supporting submissions adequately described the conduct for which the applicants seek authorisation and provide sufficient detail to enable the competition effects of the proposed conduct to be assessed and for the interested parties to comment'. See Steve Creedy, 'Qantas rebuffs ACCC over Master Coordination Agreement with Emirates' (The Australian, 15 February 2013)
14 February 2013 - Shopper dockets under investigation ... again
In his column today John Durie discusses the ACCC's investigation into shopper dockets (see John Durie, 'ACCC looks at supermarket treatment of suppliers, fuel shopper-dockets' (The Australian, 14 February 2013))
13 February 2013 - ACCC proposes to authorise ANF/Tatts collective bargaining
The ACCC has 'issued a draft decision proposing to allow the Australian Newsagents’ Federation (ANF) and its members to collectively bargain with Tatts Lotteries SA for a period of five years'. View press release. View authorisation register.
13 February 2013- eRx Scipt exchange authorisation proposed
The ACCC 'proposes to grant authorisation to eRx Script Exchange to allow it to enter into a contract with MediSecure. This will facilitate interoperability between the parties’ electronic pharmaceutical prescription exchange systems.' View press release. View authorisation register.
13 February 2013 - Dentist authorisation proposed
The ACCC 'proposes to allow dental practitioners who operate in shared practices to reach agreements on the fees they charge their patients, where at least one party to the agreement is a member of the Australian Dental Association Inc.' View press release. View authorisation register.
8 February 2013 - Pilbara contined: Competition Tribunal sets asides Minister's declaration of Robe and Hamersley lines
The ACT has handed down its decision in Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd  ACompT 2. These applications arose as a result of the decision of the High Court in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 290 ALR 750 (Pilbara HCA) and relate to the declaration of the 'Robe' line and 'Hamersley' line (railway services) in October 2008, made under s 44H of the TPA. The Tribunal agreed with the applicants that the Minister had applied the wrong test to criterion (b) in s 44H(4) and set aside the declarations.
7 February 2013 - ACCC calls for comment on Virgin's proposed acquisition of 60% of Tiger
The ACCC has released a Statement of Issues on this proposed acquisition in which it states that its 'preliminary view is that the proposed acquisition may raise competition concerns in the market for Australian domestic air passenger transport services'. This relates to the 'risk of muted competition following the reduction in the number of airline groups within Australia from three to two (excluding regional airlines), and the loss of Tiger Australia as an independently owned discount competitor'. The ACCC highlights concerns about the potential for coordinated conduct between Qantas/Jetsar and Virgin/Tiger in the future. The ACCC also indicates, however, that if it concluded Tiger would exit the market without the merger this would be 'highly relevant' to their assessment. The ACCC invites market submissions by 22 February with final decision expected on 14 March. See press release. See merger register.
7 February 2013 - ACCC calls for comment on Heinz's proposed acquisition fo Rafferty's Garden
The ACCC has released a Statement of Issues on Heinz's proposed acquisition of Rafferty's Garden, noting its preliminary view is that the acquisition would combine the two largest suppliers of wet and dry infant food in Australia and it is therefore investigating whether the removal of Rafferty's would substantially lessen competition, 'paying particular attention to the height of barriers to entry or expansion and the degree of supermarket countervailing power'. Submissions are invited by 28 February with a decision deferred until 21 March. View press release. View merger register.
7 February 2013 - ACCC proposes to approve collective bargaining for central Queensland coal producers
The ACCC has released a draft determation proposing to authorise certain central Queensland coal producers to collectively bargain with Adami Mining for access to its coal terminal and with Aurizon Network for access to rail infrastructure. View press release. View authorisation register.
The ACCC has commenced proceedings against Visa alleging contravention of Australia's misuse of market power provision (s 46). In particular, it alleges that Visa misused its market power for the purposes of 'preventing the expansion of DCC [dynamic currency conversion services] to new merchant outlets in Australia, such as retail stores' and 'preventing businesses in Australia from supplying DCC services on ATMs in competition with Visa’s own currency conversion service'. View press release. Plenty of media on this - see, in particular, John Durie, 'ACCC's market power abuse case against Visa a landmark' (The Australian, 4 February 2013), John Durie, 'Watchdog takes Visa to court for curbing competition in currency services' (The Australian, 5 February 2013, page 19) and John Durie, 'Clash over currency conversion' (The Australian, 5 February 2013, page 28)
31 January 2013 - ACCC to not oppose Virgin’s proposed acquisition of Skywest
The ACCC has announced it will not oppose the proposed acquisition of Skywest Airlines (Australia) by Virgin Australia. It has concluded that the acquisition is not likely to substantially lessen competition in any relevant market because of the limited direct overlap between their existing services. View press release. View merger register.
31 January 2013 - ACCC issues statement of issues for proposed acquisition of Country Electronics by Gallagher
30 January 2013 - CASE Associates revamp website
Case Associates have given their website an overhaul - new pages on AsiaPacific. The site includes news, publications and seminar presentations - well worth a look.
28 January 2013 - In Competition blog
In December 2012 King&Wood Mallesons launched a new blog - In Competition - and it's well worth watching. It covers a range of jurisdictions and represents the expertise of dozens of lawyers from the Australian office. It is possible to view the blog by categories (eg, mergers, cartels), jurisdiction or sector and it is fully searchable. Terrific for keeping on top of all things competition, particularly as they relate to Australia (although my favorite post remains 'May the Force be with Disney' - mergers and Star Wars in a single blog piece - fantastic!) This news falls into the better late than never category; travelling has not been conducive to keeping the news page updated, but back on track now ...
24 January 2013 - ACCC authorises collective bargaining by chicken growers
The ACCC 'has issued a final decision allowing broiler chicken growers, who are members of Queensland Chicken Growers Association, to collectively bargain with Inghams, Baiada and Golden Cockerel for ten years.' View press release. View authorisation register.
21 January 2013 - ACCC not to oppose proposed acquisition of Boral's NSW concrete masonry business by Austral
17 January 2013 - Interim authorisation for Qantas/Emirates alliance
The ACCC has granted interim authorisation ot the alliance between Qantas and Emirates. View press release. View authorisation register, including interim authorisation. Neat summary by Kim de Kock at In Competition - 'Interim Tkae Off For Qantas and Emirates'.
17 January 2013 - ACCC proposes to deny authorisation for electrical goods pricing
The ACCC has 'issued a draft decision proposing to deny authorisation to Narta International Pty Ltd for proposed arrangements that would enable it to set a minimum advertising price on a wide range of electrical goods.' View press release. View authorisation register. See also In Competition blog item by Monique Nymeyer.
15 January 2013 - Fortune Telling: Australian Competition Law in 2013
I've done a brief piece for the CPI Antitrust Chonical's fortune telling issue on what we might expect from competition law in Australia in 2013: view CPI Antitrust Chonical
View 2012 news here