1 / 18

Competition

Competition. Cartels, Collusion & the Code By Andrew C Wood Hon MRCSA (Life) Barrister August 2011. War stories…. FTC v Doctor Conspiracies OFT v Recruitment Firms Plastics v Cosmetics AMA v WA Hospital AMA v GSWAHS ACCC v Concrete Carters ACCC v Rockie O&Gs

meda
Download Presentation

Competition

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Competition Cartels, Collusion & the Code By Andrew C Wood Hon MRCSA (Life) Barrister August 2011

  2. War stories… • FTC v Doctor Conspiracies • OFT v Recruitment Firms • Plastics v Cosmetics • AMA v WA Hospital • AMA v GSWAHS • ACCC v Concrete Carters • ACCC v Rockie O&Gs • Bris GPs v The Syndicates • SEQ Private Hospitals v Health Funds • RCSA v Darwin

  3. How it started… • The Old Code • Transition • 6 months no poaching • Effective referral • S.87B undertaking • New Code • Authorisation #1 • Compliance Program

  4. Code… Members must comply with all legal, statutory and government requirements.

  5. Code… Members will not engage in any form of collusive practices.

  6. Code… • Principle 7 – Professional Knowledge • Members will work diligently to develop and maintain a satisfactory and up to date level of relevant professional knowledge. • Members will ensure that their staff are adequately trained and skilled to undertake their responsibilities.

  7. Anti competitive agreements Do not make or give effect to… …Contract arrangement or understanding… …that substantially lessens competition… …or contains an exclusionary provision.

  8. Cartels • price fixing • competitors make an agreement that has the purpose or effect of fixing, controlling or maintaining the price of goods or services • market sharing • competitors divide up the market so that the participants are sheltered from competition • bid rigging • competitors agree they will not compete genuinely with each other for particular tenders, allowing one of the participants in the agreement to win the tender  • output controls • competitors agree to limit the volume of particular goods or services available on the market; they have the effect of inflating prices in the market.

  9. Penalties… • Individuals • imprisonment of up to 10 years • fines of up to $220 000 per contravention. • Under the civil prohibition, individuals may be liable to a pecuniary penalty of up to $500 000 per contravention. • Corporations • fine or pecuniary penalty for each contravention not to exceed the greater of: • $10 000 000 • 3 x total value of the benefits obtained • 10% of the corporate group’s annual turnover in a 12-month period when the offence/contravention occurred. • injunctions, orders disqualifying a person from managing corporations and community service orders.

  10. Code outcomes & sanctions • 80% - 90% problem solved • Expulsion • Suspension • Do or refrain from doing something • Self disclosure • Remedial undertaking

  11. Misuse of market power • Don’t use substantial market power to: • eliminate or substantially damage a competitor                      • prevent entry of a person into a market • deter or prevent a person from engaging in competitive conduct

  12. Exclusive dealing • Don’t tie up your suppliers or clients in a way that substantially lessens competition • Especially don’t force someone else’s services on your suppliers or clients (third line forcing)

  13. Resale price maintenance… • Don’t do it!

  14. Mergers… • Don’t do them if they will substantially lessen competition!

  15. Protections • Authorisations • Informal review (mergers) • Notifications • Exclusive dealing (after 14 days for 3rd line forcing) • Collective bargaining negotiations (after 14 days) • each member of the collective bargaining group must reasonably expect that: • the value of the transactions it will conduct with the target under the collective bargaining arrangement in any 12-month period will not exceed $3 million.

  16. Certification issues • Barriers to entry • Exclusionary provision • Sensitive information exchange • Third line forcing • Misleading & deceptive conduct • False representations about services • Unconscionable conduct • Administration • Protection

  17. Do take prompt remedial action if you get into strife The basics… • Do review internal documents to ensure compliance • Do ensure Chair and meeting reps comply • Do object immediately when competitors discuss price • Do exercise independent commercial judgments • Do take care if exchanging info with competitors • Do seek external legal advice promptly if issues arise • Do ensure that staff are trained in competition laws

  18. What lessons do you take away? • Questions & Discussion

More Related