As of last Monday, a heap of changes to the Competition and Consumer Act came into effect. This includes the misuse of market power effects test along with a whole suite of other reforms stemming from the Harper Review.
Businesses need to get across the changes so that they can manage compliance. Here are the highlights.
- Misuse of market power: The misuse of market power effects test is now in force. We've written about this before here. The scope for contravention is much wider than before, and for big businesses the only comfort is that authorisation is now available.
- Third line forcing: Third line forcing is no longer prohibited outright. Like other kinds of exclusive dealing, it's now only prohibited when it substantially lessens competition.
- Cartel conduct: Cartel conduct provisions now only apply to conduct within Australia or between Australia and places outside Australia. And the joint venture exception to cartel conduct has been revised. More conduct is covered by the exception, but there are extra criteria to satisfy as well.
- Concerted practices: Exclusionary provisions and price signalling are out, and a new prohibition on `concerted practices' is in. Concerted practice isn't defined but the vibe is that any kind of cooperation between two parties that will substantially lessen competition is verboten.
- Merger clearance: A new means of merger clearance is on offer; authorisation for a merger that will not substantially lessen competition. This is offered in addition to the existing allowance for authorisations resulting in a net public benefit. The informal merger clearance process also remains available.
- Resale price maintenance: Resale price maintenance is still prohibited, but is now capable of notification to the ACCC. This effectively grants immunity unless the ACCC opposes the notification within 60 days.