New rules took effect on 6 November 2017, which significantly strengthen Australian competition law.
The key changes are:
- Misuse of market power: The prohibition against anti-competitive conduct by corporations with a substantial degree of market power has been broadened. In particular, the concept of "misuse" has been removed, and a corporation is now in contravention merely if its conduct has the purpose or effect (or likely effect) of substantially lessening competition. The legal profession has expressed strong concerns about the increased uncertainty that this will cause for businesses.
- Concerted practices: A new broadly framed prohibition has been introduced against "concerted practices" (a concept that also exists in EU law) that have the purpose or effect (or likely effect) of substantially lessening competition.
Other changes include:
- Third line forcing (ie, a business refuses to supply goods or services, or give a certain price or discount, unless the purchaser buys goods or services from a third party) is no longer strictly prohibited. It is now only prohibited where it has the purpose or effect (or likely effect) of substantially lessening competition.
- Resale price maintenance (RPM): Parties can now notify RPM to the Australian competition watchdog (the ACCC), and obtain immunity from breaking the law, provided that the ACCC does not object to the conduct within 28 days of the notification.
- Cartels: The prohibition is now confined to conduct affecting Australian markets.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
