The Federal Court has dismissed applications by Emirates and Singapore Airlines challenging the validity of Section 155 notices issued by the Australian Competition and Consumer Commission for the purpose of compulsorily obtaining information and documents relating to an alleged international air cargo cartel.
Including: Changes in Merger Review; Changes to Misuse of Market Power Prohibition; Criminalizing Cartel Conduct; Creeping Acquisitions; Unit Pricing Code; Meaning of 'Understanding' in Section 45.
The government has introduced legislation to criminalize serious cartel conduct. The revised cartel bill introduces appropriate exceptions to the application of the cartel laws. These exceptions are intended to ensure that legitimate commercial arrangements and conduct that are not prohibited under the Trade Practices Act are not inadvertently captured as cartel conduct.
The Senate recently passed significant amendments to the Trade Practices Act 1974. They include amendments to the misuse of market power provisions which are designed to make the prosecution of predatory pricing cases easier by specifically stating that recoupment is not required.
Minister for Competition Policy and Consumer Affairs Chris Bowen recently released a revised draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 that proposes to criminalize serious cartel conduct. The government has provided no additional guidance to coincide with the release of this bill.
The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court against 28 parties for misleading and deceptive conduct and exclusive dealing. The ACCC claims that the respondents used a business model called ‘bundled services deals’ to enter into contracts to provide small businesses with services.
The minister for competition policy and consumer affairs has directed the Australian Competition and Consumer Commission to conduct an inquiry into the rising cost of groceries that will consider all aspects of the supply chain in the grocery industry, including the nature of competition at the supply, wholesale and retail levels.
The Australian Competition and Consumer Commission has released for public consultation two papers relating to next-generation telecommunications networks. The first paper is a draft decision outlining the commission's opinion on reasonable access, while the second outlines its position in relation to the possible variation of the unconditioned local loop service.
Infrastructure owners continue to face regulatory uncertainty with respect to the scope of Part IIIA of the Trade Practices Act following the Full Federal Court decision in BHP Billiton Iron Ore v National Competition Council. The production process exemption has now been considered by five judges in two proceedings, producing four different and inconsistent judicial approaches.
The High Court has significantly confined the doctrine of 'derivative Crown immunity'. Corporations dealing with governments are now highly likely to be subject to competition laws and scrutiny by the Australian Competition and Consumer Commission. Corporations would be prudent to assume the Trade Practices Act will apply to all facets of their dealings with all aspects of government.
Further amendments have been made to the Trade Practices Act. Dubbed the 'Birdsville amendments', the amendments essentially propose a radical change to the act by seeking to attach liability for below-cost pricing to corporations that may not possess market power.
The Federal Court has indirectly asked serious questions of the Australian Competition and Consumer Commission's (ACCC) investigative options and techniques, and of its various cooperation policies. Following a 31-day hearing, the court dismissed the ACCC's claim that seven petrol companies were parties to seven separate price-fixing arrangements in the Geelong retail petrol market.
Substantive amendments to the Trade Practices Act 1974 came into force at the start of this year. In light of these amendments, the Australian Competition and Consumer Commission (ACCC) has now released its Formal Merger Review Process Guidelines providing guidance on how the ACCC will process and respond to applications for formal clearance.
The Australian Competition and Consumer Commission's Leniency Policy for Cartel Conduct recently entered into force. It aims to encourage corporations and their executives to blow the whistle on hard-core cartel behaviour, such as price fixing, bid rigging and market sharing. The first person to disclose a cartel and fully cooperate with the commission will be granted immunity.
The Dawson Committee's review of the competition provisions of the Trade Practices Act was recently completed and most of its recommendations have been adopted by the government. The proposals alter the treatment of a number of automatic contraventions of the act, streamline merger administration and make the Australian Competition and Consumer Commission more accountable.
The High Court recently held that market power must be determined by reference to a firm's ability to act without constraint. This must be examined in light of the firm's ability to increase prices for a product over a reasonable period of time without losing sales to competitors. The court emphasized that healthy competition may well include the failure of some market participants.
A series of recent cases demonstrates that firms with substantial market power are treated differently according to their conduct. Aggressive acts such as predatory pricing are dealt with harshly, but the law is relatively lenient on firms that merely seek to protect themselves.
A number of recent Federal Court decisions have upheld the validity of the Australian Competition and Consumer Commission's declaration related to the telecommunications access regime. These cases are a victory for the commission, as they have an impact beyond the telecommunications regime, extending to any regulatory regime in which the commission has a decision-making function.
Including: Regulators: Powers and Remedies; Market Definition; Horizontal Arrangements; Vertical Arrangements; Vertical Arrangements; Misuse of Market Power; Mergers and Acquisitions; Exceptions; Current Issues
It is not necessary that conduct occur within Australia for it to contravene the Trade Practices Act. Yet certain issues relating to jurisdiction remain. This update looks at the jurisdictional reach of Australia's competition laws and how international agreements are improving cooperation in competition law enforcement.