Regulation of anticompetitive "understandings" and price signalling in Australia - a European perspective

Sara Brooks
(2011) 39 Australian Business Law Review 309

Abstract

"There is ongoing debate about the adequacy of the concept of "understanding" in the Competition and Consumer Act 2010 (Cth). In particular, it is claimed that competition law regimes in other jurisdictions such as Europe catch a considerably broader range of collusive conduct than the current Australian competition law regime, including anti-competitive price signalling. This is a key basis on which the government and the Coalition have both introduced Bills targeted at price signalling into Federal Parliament. However, the Bills have not been accompanied by convincing analysis of the scope of any gap between Australian and European competition law. This article examines European law on "concerted practices" in detail, drawing two main conclusions. First, the article infers that current Australian law on "under- standings" is not as far out of alignment with European law as the government, the Coalition and the Australian Competition and Consumer Commission have contended. Secondly, the article finds that rather than merely bringing Australian law into line with European law, either the government's or the Coalition's reform proposal would go further and establish a more stringent prohibition on price signalling. Therefore, the article sums up that for Australian law to truly reflect overseas learning, neither Bill should be passed in its current form."

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