Both cartel enforcement and merger clearance are seeing intense collaboration between regulators globally.
Greater (and more intense) collaboration between regulators globally is a key trend not just in cartels and enforcement, but increasingly in merger clearances too, according to the Australian Competition and Consumer Chairman Rod Sims.
Speaking at our IBA Competition Law Breakfast to an audience of international competition law experts on Tuesday, Mr Sims described the current landscape for cartels and mergers regulation in Australia, and the growth in international co-operation between regulators.
While criminal cartel prosecutions are still in their early days in Australia, with the first successful prosecution, and penalties set to increase. Mr Sims said that they would continue to grow to around three a year (there are currently five cases with the Commonwealth Director of Public Prosecutions).
This growth is in part a product of intense collaboration on cartel investigations and enforcement between regulators around the world, and also of a slightly different legal regime; Mr Sims noted that the UK regulator has had more difficulties in successful prosecution as a result of the UK’s treatment of the dishonesty element.
Those international ties are also influencing the ACCC’s work in merger clearances as it looks to avoid duplication by considering, where appropriate, overseas economic analysis of a proposed global merger.
Mr Sims also identified a significant challenge for the ACCC: “We need to get more court-ready as we are assessing mergers."
This is a problem arising from the dual-track nature of merger clearance in Australia: when the ACCC reviews proposed mergers, it asks if it would lead to a substantial lessening of competition, whereas the Australian Competition Tribunal will look at net public benefits and detriments. That requires a very different analysis and way of presenting the evidence. “But anyway, you live and learn.”