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COMPETITION LAW
In 2018, the ACCC prosecuted its first “gun jumping case’ against Cryosite Limited and Cell Care Australia Pty Ltd and the judgment was handed down by the Federal Court on 13 February 2019. The ACCC alleged that the two companies engaged in cartel behaviour by coordinating their business activities prior to completion of a merger approval and while they were still independent competitors. The Federal Court held that Cryosite engaged in cartel conduct by agreeing to refer all customer enquiries to Cell Care as part of a merger agreement and noted: “Market sharing, including when it is undertaken in the context of a proposed or anticipated sale of business, is cartel conduct. And cartel conduct of its nature causes serious harm to consumers, other businesses and the economy.” The ACCC also continues to seek significant penalties for cartel conduct. In 2018, following an appeal of the initial penalty by the ACCC, the Full Federal Court of Australia imposed a $46 million penalty on Yazaki Corporation. In August 2019, K-Line was convicted and fined $34.5 million. This is the largest ever criminal fine imposed under the Competition and Consumer Act 2010 (Cth) ( CCA ).
WHAT ARE THE EMERGING ISSUES?
–– Cartel action –– Misuse of market power –– Digital platforms
CARTEL ACTION
Collusive behaviour continues to be a major target for enforcement action in the area of competition law. It is anticipated that the Australian Competition and Consumer Commission ( ACCC ) will conclude and prosecute two to three cartel cases per year. In recent years, the ACCC has pursued action against criminal cartel behaviour in the following sectors: –– the shipping industry (K-Line); and –– the Construction, Forestry, Maritime, Mining and Energy Union and its ACT Divisional Branch Secretary. The ACCC has also demonstrated its willingness to prosecute individuals and executives found guilty of a criminal cartel offence could face a prison sentence of up to 10-years. –– the banking industry (ANZ, Deutsche Bank, Citigroup, and various senior executives);
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