Developments in Australian Competition Law ABA International Asia/Pacific Antitrust Round-Up Fiona Crosbie, Partner Allens Arthur Robinson

Issues Cartel News Record penalty imposed on Visy in cardboard box cartel The likely criminalisation of cartels Misuse of Market Power Amendments to misuse of market power prohibition Predatory pricing amendments Unconscionable conduct amendments

Cartels: Record penalty ordered against Visy Visy and Amcor have a combined market share of 90% in the corrugated fibre packaging market. Visy and Amcor entered into understandings including: maintaining market share and customers; annual price increases; and compensation understandings (for loss of customers). Amcor granted immunity. Visy fined $36 million – agreed penalty with regulator.

Cartels: the likely criminalisation of cartels The current position Pecuniary penalties Amendments in 2006: increased maximum penalty to $10 million; ‘three times the gain’ or 10% of annual turnover of corporate group; and rule against indemnification of offending directors.

Cartels: the likely criminalisation of cartels The push for criminalisation This week our PM revisited the introduction of jail terms Suggestions by others include: apply to ‘serious’ conduct with ‘dishonest’ intention dual system (punishment and recovery) possible exception for small business, primary industry and trade unions

Misuse of market power: developments Three developments: 1.(a) misuse of market power can occur in a different market (b) clarification of ‘substantial degree of market power’ 2.predatory pricing amendments 3.unconscionable conduct amendments

Misuse of market power: predatory pricing A Corporation with a substantial market share must not sell or offer to sell goods or services at a price below what it costs the corporation for a sustained period with a purpose of either eliminating or substantially damaging a competitor; preventing entry of a person into that market; or deterring or preventing a person from engaging in competitive conduct.

Misuse of market power: unconscionable conduct Specifically aimed to protect small business transaction limit of $10 million company supplied must not be a listed company Non-exhaustive list of factors strengths and bargaining power of supplier and small business whether small business was able to understand documents relating to supply of goods or services; extent of consistency of supplier dealings with other like small businesses. Unilateral variation clauses