Professional Documents
Culture Documents
Monday 9:00 Quad G042 Monday 10:00 Law 301 Monday 10:00 Quad G042 (Marys class) Thursday 9:00 Webster 302 Thursday 10:00 Webster 302 Thursday 11:00 Webster 302 Tuesday 12:00 Gold G05 Tuesday 13:00 Gold G05 Tuesday 14:00 Quad 1047 Tuesday 15:00 Quad 1047 Wednesday 14:00 Quad 1047 Wednesday 15:00 Quad 1047 Thursday 10:00 Webster 215 Thursday 11:00 Mat 313 Thursday 12:00 Mat 313 (Danielle/Anthony) Thursday 12:00 Webster 302 Thursday 16:00 Gold G03 Thursday 17:00 Gold G03
Assignment 2
Due next Monday 23 September, by 5pm ONLINE SUBMISSION ONLY Via Blackboard on Turnitin Must use references: do not plagiarise Must include a Bibliography
The legislation
From 1 January 2011: Competition and Consumer Act 2010 (Cth) Pre-2011: Trade Practices Act 1974 (Cth)
Object of the Competition and Consumer Act 2010 (Cth) Section 2 To enhance the welfare of Australians through the promotion of competition and fair trading and the provision of consumer protection
Market definition
Identification of market: essential 1st step to assessing competition ASK: Who are/could be in competition? See Latimer at 8-040
Market definition
Product Geographic Time/period of time
The tests
Competition test What is the effect or likely effect on competition in a market? Per se test Speeding offence
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Competition test
Does the conduct have the purpose, effect or likely effect of substantially lessening competition in a market? Anti-competitive agreements EXCEPT agreements that contain an exclusionary provision/primary boycott Exclusive dealing EXCEPT third line forcing Mergers
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Anti-competitive arrangements: s 45
A corporation shall not make a contract or arrangement or arrive at an understanding if a provision in it has the purpose or would have or be likely to have the effect of substantially lessening competition
Anti-competitive agreements: s 45
Contract, arrangement or understanding Purpose Effect or likely effect Substantially lessening or competition
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Exclusive Dealing: s 47
Forms of exclusivity arrangements that are prohibited include: product exclusivity - Minimum quantity contracts - Requirement contracts customer exclusivity territorial exclusivity Such arrangements may be imposed by either supplier or acquirer See Latimer at 8-361
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Mergers: s 50
Section 50(1): A corporation must not directly or indirectly: (a)acquire shares in the capital of body corporate; or (b)acquire any assets of a person if the acquisition would have the effect or likely effect of substantially lessening competition See Latimer at 8-570 to 8-580
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Per se test
Per se breach: impact on competition does not matter if you engage in the conduct, you are in breach of the Act
Per se prohibitions
Cartel conduct Contracts containing exclusionary provisions/primary boycotts Third line forcing Resale price maintenance
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Cartel conduct
What is a cartel? When businesses agree to act together instead of competing with each other Designed to drive up profits of cartel members while maintaining illusion of competition Cartels are illegal
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Cartel conduct
A cartel provision is a provision relating to: Price-fixing - Price fixing was formerly dealt with under s 45A, now repealed Restricting outputs in the production or supply chain Allocating customers, suppliers or territories Bid-rigging/collusive tendering by parties who are competitors
Cartel conduct
The Marker A Short Film About Cartels The Australian Competition and Consumer Commission (ACCC) has made a fictional short film called The Marker to demonstrate the devastating impact cartels can have on the people involved. The film was inspired, in part, by Melbourne University research showing gaps in business awareness of the illegality of cartel conduct. The film shows how cartel activity can ruin relationships, careers and long-term financial security, and may ultimately land guilty parties in jail. The film can be viewed at www.accc.gov.au/themarker.
A corporation shall not make a contract or arrangement or arrive at an understanding if it contains an exclusionary provision
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Exclusionary provisions: s 4D
Provision of a contract, arrangement or understanding Made by parties competitive with one another Purpose of preventing, restricting, limiting Particular persons or classes of persons Need to identify boycott of some other person or class or persons
Exclusionary provisions: s 4D
Cases: News Limited v Australian Rugby Football League Ltd News Limited v South Sydney District Rugby League Football Club Ltd See Latimer at 8-220
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Resale price maintenance: s 48 and ss 96-100 Relates to price at which goods acquired can be on-sold Supplier dictates resale price Per se breach See Latimer at 8-440 to 8-450
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Authorisation
ACCC can give an authorisation (exemption) to agreements affecting competition if: The benefit of the conduct outweighs any anticompetitive detriment There is a public benefit: Business efficiency Expansion of employment Promotion of industry Growth in exports Economic development Assistance to small business Lodgement fee payable See Latimer at 8-620 to 8-710
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Authorisation
What can the ACCC authorise? an exclusionary provision (primary boycott) an anti-competitive agreement (including a price agreement) a secondary boycott exclusive dealing resale price maintenance mergers
Notification
What is an exclusive dealing notification? Businesses may obtain immunity for conduct that might risk breaching the exclusive dealing (including third line forcing) provisions of the Act by lodging a notification with the ACCC Can engage in notified conduct 14 days after notification lodged and lodgement fee paid Notification lasts for 3 years or until ACCC revokes notification See Latimer at 8-620
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Enforcement
Civil proceedings for recovery of pecuniary penalties as a debt due to the Commonwealth Criminal penalties for cartel conduct
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Other orders
Injunctions: s 80 Damages: s 82 Divestiture: s 81 Punitive orders Adverse publicity: public disclosure that you have breached the Act Non-punitive orders, such as: community service order probation order, order requiring disclosure of specific information corrective advertising order Order disqualifying person from managing corporations: s 86E Court enforceable undertakings: s 87B See Latimer at 8-3770 to 8-860
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The ACCC
Agency responsible for ensuring compliance with the Act Independent Commonwealth statutory authority formed in 1995 Prior to 1995: Trade Practices Commission or TPC
The ACCC
Key function to promote competition and fair trading in the market place to benefit consumers, business and the community. Also regulates national infrastructure industries (gas, electricity, telecommunications)
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The ACCC
Priorities areas include: serious cartel conduct; primary boycotts, deceptive conduct, unconscionable conduct, misuse of market power ACCC Corporate Plan: www.accc.gov.au
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ACCC Policies
ACCC Cooperation Policy for Enforcement matters ACCC Leniency Policy/Immunity Policy for Cartel Conduct
Next week
Property Law Read Latimer, ch 3
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