Previous issues:

The impending introduction of criminal cartel laws in Australia can be considered against the backdrop of significant cartel enforcement activity internationally in 2008.

An update of developments in competition law from across the Tasman, including mergers, cartels and regulatory reforms.

There have been a number of significant developments in recent months in a series of applications for third party access to railway services in the Pilbara region of WA. This article considers the Treasurer's decision to declare particular 'all points' services provided by the Goldsworthy, Hamersley and Robe railways, the High Court's decision that services provided by the Mount Newman and Goldsworthy railways are not an exempt 'use of a production process', and the ARTC's interstate rail access undertaking.

Last month, the Federal Government passed the Trade Practices Amendment (Clarity in Pricing) Bill 2008 (Bill).  The Bill essentially amends the Trade Practices Act 1974 (TPA) to regulate the use of 'component pricing'.  In short, where a corporation makes a price representation to consumers, it may only use a component price if it also  'prominently' specifies the 'single figure' price payable for the good or service (where a single figure price is quantifiable). For an overview of the Bill and its requirements, please refer to the Minter Ellison News Alert 'Government passes Bill to govern component pricing under the TPA' available (click here)

Awareness of environmental responsibility and action to reduce environmental impact continues to grow and reflect itself in marketing strategies.  However, such strategies must ensure consumers are not likely to be misled or deceived, contrary to section 52 of the Trade Practices Act.  What principles should sales and marketing teams apply to ensure that their 'green claims' remain compliant with the Trade Practices Act? How is this illustrated in recent ACCC enforcement activities?

On 21 November the ACCC released a final version of its revised merger guidelines. The guidelines set out the analytical principles applied by the ACCC when assessing whether a merger is likely to substantially lessen competition under section 50 of the Trade Practices Act. This article provides an analysis of the practical consequences for Australian business, with a focus on the simplification of the notification’ thresholds applied by the ACCC.

With amendments to the misuse of market power prohibition under section 46 of the Trade Practices Act recently passing through Federal Parliament, the ACCC has taken the relatively rare step of commencing Federal Court proceedings alleging misuse of market power; against companies in the Cement Australia group. The proceedings are particularly significant in their allegation of a misuse of market power through the acquisition of a product.

Significant attention has been paid to the exposure of individual directors and officers to imprisonment under the Trade Practices Act. However, little attention has been given to an amendment quietly introduced in 2007 that permits the ACCC to share ‘protected information with foreign competition authorities. Whilst the amendment has yet to be publicly tested, it has the potential to expose Australian executives to criminal proceedings in foreign jurisdictions – regardless of whether criminal sanctions are introduced in Australia.

On 3 December 2008 the Australian Government introduced into Parliament an amended version of its legislation to criminalise cartel conduct under the Trade Practices Act.  The proposed cartel laws are supported by revised investigation, prosecution and immunity policies of the ACCC and Commonwealth DPP. How do the revised laws and policies differ from earlier drafts?  What are the practical implications for Australian business?

The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

The ACCC has continued its thematic approach to misleading or deceptive conduct in 2008, targeting comparative (or 'dual ticket') pricing, environmental or 'green' claims and the perennial issue of food labelling. What practical principles can business apply to minimise risks in these areas?

Consumer Affairs Victoria has successfully challenged a number of payment, termination and release clauses commonly used in contracts by the fitness industry under the Fair Trading Act 1999. The case has wider implications for all businesses that provide on-going services to consumers.

It has now been 18 months since the introduction of a formal merger clearance system. However, we are yet to see a single application to the ACCC under that mechanism. Why has it not been utilised to date? In what circumstances would it present strategic benefits for merger parties?

The uncertainty regarding the form vs substance of the Franchising Code of Conduct is nearing its conclusion, with the High Court hearing the final appeal in the Ketchell case. An analysis of the arguments heard by the Court give an insight into its potential outcome.

The National Competition Council has released draft recommendations to declare services provided by means of the Hamersley, Goldsworthy and Robe railways in the Pilbara region of WA, under Part IIIA of the Trade Practices Act. It follows the release of the WA government's own proposed third party access regime for the Pilbara railways.

The Federal government has introduced a Bill to reform to the misuse of market power provisions of the Trade Practices Act. The amendments primarily seek to clarify the specific prohibition against anti-competitive predatory (or 'below-cost') pricing in section 46(1AA), enacted by the former government in September 2007. This follows criticisms of the effectiveness of the section, and its inconsistency with the general misuse of market power prohibition in section 46. However, the amendments are unlikely to have a significant practical impact.

Justice Heerey of the Federal Court, recently handed down judgment in the seminal cartel case of the ACCC vs Visy Industries and others. The case was the first major test of the ACCC's immunity policy

Marking the end of a legislative process that has lasted more than a decade, on 31 August 2007 the National People's Congress passed China's first Antitrust Law, to take effect 1 August 2008.

In June 2007, a majority in the US Supreme Court in Leegin Creative Leather Products v PSKS Inc overturned the per se prohibition on resale price maintenance (RPM) that had existed since the Court's 1911 decision in Dr Miles. Unlike the majority of other vertical arrangements, RPM remains a per se offence in Australia.

On 18 September 2007, the Senate passed amendments to section 46 of the Trade Practices Act 1974 (Cth). The most significant and highly controversial element of the amendments – a new section 46(1AA) prohibiting anti-competitive below-cost pricing – was added at the last minute.

A decision of the full Federal Court in October 2007 (BHP Billiton Iron Ore v NCC) has extended the scope of infrastructure facilities which may be subject to compulsory third party access under Part IIIA of the Trade Practices Act.

In September of this year, the European Court of First Instance handed down judgment in Microsoft Corporation v Commission of the European Communities. The Court upheld the European Commission's earlier finding that Microsoft had abused its dominant market position by refusing to supply interoperability information and tying Windows Media Player with the Windows PC operating system.

A summary of key ACCC comments on mergers and acquisitions 29 November 2006 - 1 March 2007.

On 7 February 2007, the Federal Court delivered judgment in Jurlique International Pty Ltd and Ors v ACCC, a case involving resale price maintenance and price fixing. The judgment is the first by an Australian court to recognise the validity of the argument that resale price maintenance is not anti-competitive.

The Big Day Out organisers' efforts to foil ticket scalping backfired when the Federal Court found that ticket conditions were misleading and deceptive under the Trade Practices Act. The decision demonstrates the importance of carefully drafting and offering consistent ticket conditions and the need to specifically draw customers' attention to those conditions prior to purchase.

In fining Woolworths $7 million plus costs for six contraventions of subsection 45(2) of the Trade Practices Act, the court noted that even though the competitive effect of Woolworths' conduct was not proven, nor was there necessarily a deliberate intention to breach the TPA, the matter should be viewed in light of the fact that it was commercially significant to Woolworths, and that Woolworths had made a deliberate attempt to affect competition in the local area.

While the new formal merger clearance system should provide greater certainty for parties in terms of process and outcome, the informational detail and rigidity inherent in the new procedures may mean that it is unlikely to be widely utilised by Australian business.

An anti-trust investigation of private equity firms in the US has triggered follow-up litigation by former shareholders of target companies. This has emphasised the need for the private equity industry in Australia and around the world to consider the anti-trust implications of the way in which they form consortia to acquire targets.

A summary of key ACCC comments on mergers and acquisitions September-December 2006.

Consumer Affairs Victoria has continued to crack down on 'unfair terms' in consumer contracts, at the same time as a parliamentary inquiry in New South Wales has recommended that a similar regime be adopted there. Businesses with national operations should be mindful that inconsistency between legislative regimes could bring additional compliance and administrative costs.

In recent months, the Australian Competition and Consumer Commission has taken a stricter stance on merger undertakings. Companies intending to offer an undertaking to the ACCC in a merger clearance should be prepared for the ACCC to be tougher in its approach. Companies that are already bound by undertakings should be aware that non-compliance could see them facing court action or, at a minimum, engendering distrust from the ACCC in relation to any future acquisitions.

Major changes to the Trade Practices Act have been accompanied by a new set of draft guidelines from the ACCC on formal merger reviews, non-merger authorisations and collective bargaining.

A summary of the key ACCC comments on mergers and acquisitions June-September 2006.

An investigation into retail stores offering credit card services to consumers in the United Kingdom has prompted regulatory action by the Competition Commission. This comes as a warning to retailers and credit providers in Australia that the Australian Competition and Consumer Commission (ACCC) may take similar action in Australia.

The ACCC implemented new Merger Review Process Guidelines in July, intended to refine and expand upon the ACCC's processes when reviewing mergers and acquisitions under section 50 of the Trade Practices Act 1974.

The first court challenge to a Competition Notice issued by the ACCC under the telecommunications-specific anti-competitive conduct rules in Part XIB of the Trade Practices Act 1974 (Cth) was heard in August, with the judgment likely to deliver a significant insight into the extent of the ACCC's obligations to consult with affected parties and to set out the detail of conduct alleged to be anti-competitive.

The Trade Practices Act Amendment (National Access Regime) Bill 2006, which seeks to implement the Federal Government's response to the Productivity Commission's Inquiry Report, Review of the National Access Regime, received assent on 18 August 2006. The majority of the Review's 33 recommendations are included in the Bill.

A recent decision, in which the ACCC successfully brought proceedings against Woolworths for six separate contraventions of the Trade Practices Act, is a reminder of the court's willingness to reprimand companies that use their influence and resources to achieve anti-competitive aims.

The involvement of governments in Australia as significant purchasers of goods and services means that in many situations the Trade Practices Act will not apply, leading to very significant consequences. The latest example of this arose in the ACCC v Baxter Healthcare case, where derivative crown immunity was confirmed.

A summary of the key ACCC comments on mergers and acquisitions in 2005.

In 2005, the ACCC began enforcing the resale price maintenance prohibition with renewed vigour, with activities focused along the vertical supply chain.

The long mooted overhaul of Australia's media ownership laws moved closer to frutition with the release of a discussion paper by the Commonwealth Communications Minister Helen Coonan on 14 March 2006.

What does 2006 hold in store? Our competition and regulatory team has stared into a crystal ball and made our predictions for the year.

The ACCC has released Corporate Trade Practices Compliance Programs Gudelines aimed at medium to large companies to assist them in identifying the requirements for compliance with the Trade Practices Act 1974 (Cth).

The Federal Court imposed penalties totalling AUD8.9 million on Australian Safeway Stores Pty Limited on 31 January 2006, nearly a decade after proceedings were instituted. The penalties followed a decision by the Full Court in June 2003 that Safeway had engaged in price fixing and had misused its market power.