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OECD logoPecuniary penalties for competition law infringements in Australia

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Overview

The OECD Report page sets out the background and an overview of the results of the report as follows:

Competition authorities have imposed substantial fines for competition law violations over the last few decades. This is the result of an international consensus that monetary sanctions (also known as pecuniary sanctions) against corporations are essential to deter anticompetitive conduct.

In 2017, the OECD was asked to provide Australia with an overview of international experiences and best practices regarding the imposition of sanctions for infringements of competition law, following a discussion on ‘Sanctions in Antitrust Cases’ held during the 2016 OECD Global Forum on Competition.

The resulting report compares Australia's pecuniary sanctions regime for competition law infringements to that of a number of other major OECD jurisdictions, including larger ones, such as the EU and the US, as well as smaller jurisdictions with advanced competition law regimes, such as Germany, Japan, Korea and the UK. Together, these jurisdictions provide a valuable mix of characteristics that reflect the variety of competition law regimes across the world and illustrate the breadth of approaches in different legal systems.

Despite Australia’s competition law system already being in line with international practices, it has particular characteristics, notably its method for applying sanctions. While in most regimes pecuniary penalties are set by reference to a detailed and publicly available methodology that focuses largely on the relevant sales of the infringing company's product, in Australia the amount of pecuniary penalties is determined by the Federal Courts following an ‘instinctive synthesis’ of various factors. These differences do not prevent Australia from imposing substantial and deterrent sanctions for breaches of competition law. However, the maximum penalties that are imposed in Australia are nonetheless lower than in comparable jurisdictions for competition law infringements.

A great video overview of the report by one of the authors, Pedro Caro de Sousa, can be found on the OECD Competition Division YouTube page

Workshop

The report was launched at a workship in Sydney on 26 March 2018.

A number of the presentations and papers presented at the Workshop can be downloaded from the Workshop's website:

Workshop on Australian Pecuniary Penalties for Competition Law Infringements

This includes a slideshow on the overview of findings set out in the report:

Slideshow OECD Report

It also includes slides from the keynote address of Prof Frédéric Jenny, Chair of the OECD Competition Committee

Jenny slideshow link

 

CLEN Seminar

Two of the authors of the OECD, Pecuniary Penalties for Competition Law Infringements in Australia (26 March 2018) report, Sean Ennis and Pedro Carodesousa, presented their work at the Melbourne Law School's Competition Law and Economics Network (CLEN) discussion group on 29 March.

Details, including presentation slides and as well as the response from Prof Beaton-Wells and Assoc Prof Julie Clarke can be found on the CLEN website: Civil Penalties for Cartel Conduct: An OECD Review of the Australian Regime.

 

ACCC

 

Articles/notes

 

Media and commentary