Competition Law in Australia, Second Edition / Edition 2

by L. Griggs, Jane Nielsen

Overview

Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of competition law and its interpretation in Australia covers every aspect of the subject – the various forms of restrictive agreements and abuse of dominance prohibited by law and the rules on merger control; tests of illegality; filing obligations; administrative investigation and enforcement procedures; civil remedies and criminal penalties; and raising challenges to administrative decisions. Lawyers who handle transnational commercial transactions will appreciate the explanation of fundamental differences in procedure from one legal system to another, as well as the international aspects of competition law. Throughout the book, the treatment emphasizes enforcement, with relevant cases analysed where appropriate.

An informative introductory chapter provides detailed information on the economic, legal, and historical background, including national and international sources, scope of application, an overview of substantive provisions and main notions, and a comprehensive description of the enforcement system including private enforcement. The book proceeds to a detailed analysis of substantive prohibitions, including cartels and other horizontal agreements, vertical restraints, the various types of abusive conduct by the dominant firms and the appraisal of concentrations, and then goes on to the administrative enforcement of competition law, with a focus on the antitrust authorities’ powers of investigation and the right of defence of suspected companies. This part also covers voluntary merger notifications and clearance decisions, as well as a description of the judicial review of administrative decisions.

Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable time-saving tool for business and legal professionals alike. Lawyers representing parties with interests in Australia will welcome this very useful guide, and academics and researchers will appreciate its value in the study of international and comparative competition law.

Product Details

ISBN-13:	9789041168474
Publisher:	Wolters Kluwer
Publication date:	04/01/2016
Edition description:	2nd ed.
Pages:	168
Product dimensions:	6.10(w) x 9.50(h) x 0.40(d)

Table of Contents

The Authors 3

List of Abbreviations 13

General Introduction 15

§1 General Background of the Country 15

§2 The Economic System 15

§3 The Legal System 16

§4 Historical Background of Antitrust Law 16

Part I The Structure of Antitrust Law and Its Enforcement 19

Chapter 1 Sources of Antitrust Law 19

§1 National Sources 19

§2 International Sources 20

§3 Secondary Sources 20

I Regulations 20

II Guidelines 20

§4 Sources Relation and Hierarchy 21

§5 Role and Authority of Precedents 21

Chapter 2 Scope of Application 22

§1 Territorial Reach 22

§2 Special Sectors 23

§3 State-Owned Enterprises and Public Utilities 24

§4 Sensible Effect And De Minimis 25

Chapter 3 Overview of Substantive Provisions 26

§1 Restrictive Agreements 26

§2 Dominant Undertakings 29

§3 Concentrations 32

§4 Other Prohibitions 33

§5 Tests of Illegality 35

I Per se Prohibitions and Naked Restraints 35

II Balancing Tests 35

III Merger Tests 36

Chapter 4 Overview of Main Notions 37

§1 Undertaking 37

§2 Relevant Market 37

I Market 37

§3 Market Power/Dominant Position 39

§4 Agreements and Concerted Practices 40

I Contract 40

II Arrangement 40

III Understanding 41

§5 Restriction of Competition 41

§6 Monopolization and Abuse of Dominance 43

I Definitions Associated with Section 46 43

§7 Concentrations 43

I Definitions Associated with Section 50 43

§8 Joint Ventures 45

Chapter 5 Consequences of Violations and Enforcement Institutions 47

§1 Administrative Enforcement 47

I The Antitrust Authorities 47

A Formation and Composition 47

B Investigating Powers 48

C Adjudicating Powers (Ascertaining and Sanctioning) 48

D Other Institutional Tasks (Consultancy to Parliament/Government) 53

II Government Direct Enforcement Activities 53

III Other Administrative Agencies Applying Antitrust Rules 53

IV Administrative Fines 53

V Administrative Injunctions and Other Restrictive Orders 54

VI Interim Measures 54

§2 Civil Enforcement 54

I Competent Civil Courts 54

II Sanctions 54

A Nullity 54

1 Contracts 54

2 Divestiture 55

B Damages 56

1 Civil Penalties 57

C Interim Measures 60

1 Injunction 60

D Other Orders 61

1 Compliance Programs 61

2 Undertakings 61

E Other Orders 62

F Cost Orders 63

§3 Criminal Enforcement 64

I Criminal Sanctions for Antitrust Violations 64

II Other Application of Criminal Law to Relevant Conducts 66

III Role of Prosecutor 66

IV Competent Criminal Courts 67

Part II The Application of the Prohibitions 69

Chapter 1 Restrictive Agreements 69

§1 Horizontal Agreements 69

I Cartels 69

A Price Fixing 74

B Market/Client Allocation 78

C Product/Innovation limitation 78

D Group Boycotts 78

E Collusion on Other objects 82

II Information Exchange Practices 82

III Cooperation Agreements 83

A Research and Development 84

B Specialization 84

C Standardization 84

D Joint Production 85

E Joint Purchasing 85

F Joint Selling 85

§2 Vertical Agreements 85

I Distribution 88

A Exclusive Distributorship 88

B Exclusive Dealing 88

C Selective Distributorship 95

D Franchising 95

II Intellectual Property Licensing 95

A Patent 95

B Trademarks Licensing 98

C Know-How Trade Secret Licensing 98

Chapter 2 Dominant Undertakings' Prohibited Practices 99

§1 Market Power 100

§2 'Taking Advantage' of Market Power 103

§3 The Proscribed Purpose Element 106

§4 Explorative Practices 108

I Excessive/Unfair Pricing 108

II Discrimination 109

§5 Exclusionary practices 110

I Predation 110

II Tying 113

III Rebates 114

IV Refusal to Deal 115

V Price Squeeze 117

Chapter 3 Concentrations 119

§1 The Relevant Prohibition: Section 50 CCA 119

I Overseas Acquisitions 120

II Merger Factors 120

III Notification 121

IV Informal Clearance 122

V Formal Merger Clearance 122

VI Merger Authorization 122

VII Australian Merger 'Law' 123

VIII Enforceable Undertakings 124

§2 Horizontal Mergers 124

I Defining the Market 125

II Assessing the Competitive Effects of a Horizontal Merger 126

III Unilateral Effects 126

IV Coordinated Effects 126

V The Section 50(3) Merger Factors 127

A Market Concentration: Merger Factor (c) 127

B Barriers to Entry: Merger Factor (b) 128

C Vertical Integration: Merger Factor (i) 129

D Import Competition: Merger Factor (a) 129

E Availability of Substitutes: Merger Factor (f) 129

F Countervailing Power: Merger Factor (d) 130

G Dynamic Characteristics of the Market: Merger Factor (g) 130

H Removal of a Vigorous and Effective Competitor: Merger Factor (h) 130

I Efficiencies 131

§3 Vertical Mergers 131

I Introduction 131

II Defining the Market 131

III Assessing the Competitive Effects of a Vertical Merger 132

IV The Section 50(3) Merger Factors 134

§4 Market/Product Extension Mergers 134

I Introduction 134

II Market Extension Merger 134

III Product Extension Merger 135

§5 Pure Conglomerate Mergers 136

Part III Administrative Procedure 139

Chapter 1 Administrative Investigations before the Antitrust Authority 139

I General Sectors Inquiries 139

II Ex officio Investigations 139

III Complaints 139

§2 Powers 140

I Request for Information 140

II Investigating and Search Powers 140

III Cooperation with Other State Institutions 143

§3 Right of Defence 143

I Content and Notification of Opening Decisions 143

II The Proceedings: Hearings, Access to File, Briefs 143

III Statement of Objections 144

IV Final Hearing and Decision 144

Chapter 2 Voluntary Notifications and Clearance Decisions Merger Control 145

§1 Preliminary Filing Obligations 145

I Criteria and Thresholds 145

II Turnover Calculation 145

III Market Share Calculation 145

IV Other Relevant Notions 146

§2 Structure of Proceedings 146

I Preliminary Assessment and Full Investigation 146

II Time Framework 147

A Informal Clearance 147

B Formal Clearance 147

C Authorization 148

§3 Clearance and Conditional Clearance 148

I Conditions and Undertakings 148

A Content 148

B Timing 148

§4 Relations with Other Merger Control Authorities 149

I Other Authorities within the Local Jurisdiction 149

A Foreign Investment Review Board 149

B Australian Prudential Regulatory Authority 149

II International Coordination 150

Chapter 3 Challenging the Administrative Decision 151

§1 Competent Courts 151

§2 Time Limits 151

§3 Scope of Judicial Review 151

Selected Bibliography 153

Table of cases 157

Index 161