Reinforcing the ACCC’s enforcement priorities
Rod Sims has been busy on the speaking circuit – further to Kat Evans’ report on a speech in Melbourne on the 12th of September, on the 13th of September 2012, the ACCC Chair addressed the Australia Israel Chamber of Commerce on the ACCC’s current priorities further echoing the speeches given in February and May of this year. The ACCC has on all three occasions discussed its current priorities as being:
· priorities in competition matters;
· mergers and acquisitions; and
· the Australian Consumer Law.
Sims has previously noted the importance of consistency, stating that “consistency can be quite boring, but it is, I believe, an important characteristic of a regulator”, promising that we will find “an ACCC that says what it will do, and does what it says.” We agree that the ACCC is more than all talk, with its commitment to the enforcement of these priorities strengthened by the number of cases before the Federal Court, mergers under informal review and penalties imposed upon offenders.
· Proceedings against Cement Australia Pty, Pozzolani Enterprises Pty, Ticketek, ANZ and Flight Centre are examples of recent cases in which the ACCC is cracking down on anti-competitive conduct. Sims noted that at any one time, the ACCC has between 40 and 50 cases in the Federal Court with a quarter of those relating to competition issues, and 35 separate investigations underway into misuse of market power, cartels, or cases involving a substantial lessening of competition.
· An indication that mergers in concentrated markets, and particularly 3-2 mergers, will generally attract a full review by the ACCC. That said, in 2011/12 the ACCC still pre-assessed 250 out of 340 mergers, without the need for any public review.
· Continued use of its new ACL enforcement powers – in 2011/12 34 infringement notices were paid amounting to over $500,000 (on top of the almost $18million that the ACCC has been able to achieve in pecuniary penalties thus far), and the ACCC is also using court enforceable undertakings.
Martine Phillips & Peta Stevenson