ACCC seeks guidance on competition law reforms

Key Points

• Opportunity to provide feedback on misuse of market power guidelines.

• Opportunity to provide feedback on concerted practices guidelines.

On 5 September the Australian Government released an exposure draft of the Competition and Consumer Amendment (Competition Policy Review) Bill to implement reforms identified by the Harper Competition Policy Review.

To help interested parties understand the proposed reforms, the ACCC has released a draft framework for guidance on how it proposes to approach two important proposals in the exposure draft Bill:

• amending the misuse of market power provision (section 46 of the Competition and Consumer Act 2010) to introduce a substantial lessening of competition test to determine whether a business with a substantial degree of market power has engaged in anti-competitive conduct; and
• the creation of a prohibition against concerted practices that substantially lessen competition.

If the Bill is enacted, the ACCC proposes to publish guidelines based on the framework to explain the ACCC’s approach to possible breaches of these prohibitions.  However, the ACCC notes that it will be the courts to determine whether conduct has breached the relevant prohibitions.

The ACCC is seeking feedback from consumers, businesses and other stakeholders on the draft guidelines.  Copies of the guidelines are available at:

• https://consultation.accc.gov.au/compliance-enforcement/consultation-on-draft-framework-for-misuse-of-mark
• https://consultation.accc.gov.au/legal-economic/draft-framework-for-concerted-practices-guidelines

Submissions on the draft guidelines can be made by close of business on 3 October 2016 to:

• Misuse of market power – [email protected] (link sends e-mail)
• Concerted practices – [email protected]