ACCC announces compliance and enforcement priorities for 2022/23

The ACCC has some new areas of focus and others which have been carried forward from prior years.

The ACCC's 2022 to 2023 priorities were announced by outgoing Chair, Rod Sims, on 3 March 2022. These include:

• Competition issues in supply chains, particularly global and local supply chains impacted by COVID-19.
• Exclusive arrangements by firms with market power that impact competition.
• Competition in the financial services sector, with a focus on payment services, including digital wallets.
• Competition and consumer issues relating to digital platforms, including enforcement issues.
• Consumer and fair trading issues relating to environmental claims and sustainability; manipulative or deceptive advertising and marketing practices in the digital economy; the COVID-19 pandemic; and essential services (with a focus on energy and telecommunications).
• Empowering customers and improving industry compliance with consumer guarantees, with particular scrutiny for high-value goods, including motor vehicles.
• Ensuring small businesses, particularly those in agriculture and franchising, receive the protections of competition and consumer laws.
• Consumer product safety issues for young children, focusing on compliance, enforcement and education initiatives.

The ACCC also restated its 'enduring priorities', which include prioritising cartel conduct causing detriment in Australia and anti-competitive agreements and practices, and misuse of market power.

On 21 March 2022, Gina Cass-Gottlieb, Mr. Sims' replacement, commenced her term as Chair of the ACCC.

A summary of the 2022 to 2023 priorities published by the ACCC is accessible here.

CDPP withdraws charges in bank criminal cartel case

The CDPP has withdrawn all charges in relation to criminal cartel allegations arising from an institutional share placement.

The charges related to alleged cartel arrangements between underwriters in connection with an institutional share placement and subsequent trading in those shares. Criminal charges were laid against two bank underwriters, the bank subject of the share placement and a number of senior executives of each of the banks.

This conduct was investigated by the ACCC following an immunity application and referred to the CDPP, who laid charges in 2018.

On 11 February 2022, the CDPP advised the accused that all charges had been withdrawn and there would be no further action. This decision followed the CDPP withdrawing charges against one of the banks and its executive in late 2021.

In a statement released by the CDPP on the decision to withdraw all remaining charges, the CDPP Deputy Director was quoted as stating that "following a further careful review of the evidence and consideration of detailed submissions received from solicitors acting for the accused, the Director concluded that there were no longer reasonable prospects of conviction for the charges before the court."

This outcome continues the ACCC's mixed record in having alleged criminal cartel conduct prosecuted. To date, there have been five successful criminal prosecutions since criminal sanctions were introduced for cartel conduct in 2009. In June last year, in the only contested criminal cartel matter to date, a jury found the defendants not guilty.

The ACCC's media release regarding the CDPP decision to withdraw charges is accessible here. 

ACCC continues to focus on digital platforms

The ACCC has sought feedback from stakeholders on options for legislative reform to address the ACCC's concerns about the dominance of digital platforms.

On 28 February 2022, the ACCC released a discussion paper that outlined options for addressing potential perceived harms to competition, consumers, and business users across a range of digital platform services markets, such as social media, search, app marketplaces, general online retail marketplaces and ad tech.

The many significant proposals in the paper include:

• Algorithm transparency obligations.
• Prohibitions on so-called "dark patterns" in platform design.
• A tailored merger control regime for certain digital platforms.

The reforms proposed in the discussion paper are broad-reaching and, if implemented, have the potential to significantly affect numerous digital platforms and services.

Since the ACCC completed its Digital Platforms Inquiry 2017 to 2019, it has been focused on investigating specific competition and consumer issues relating to digital platforms. In that regard, it has conducted a number of related "spinoff" inquiries, such as the Digital Advertising Services Inquiry and Digital Platform Services Inquiry 2020 to 2025. The ACCC's discussion paper on updating competition and consumer law for digital platform services published on 28 February 2022 represents a key milestone, and approximately the halfway point, in the inquiry and is an important signifier of the direction the ACCC is aiming to take platform regulation. The ACCC's final report for this inquiry is due to the Treasurer by 30 September 2022.

The ACCC's media release regarding the discussion paper is accessible here.

Baker McKenzie's more detailed insight on the discussion paper is accessible here.

Federal Court imposes AUD 12 million penalty for exclusive dealing

The Federal Court has ordered that Peters Ice Cream ("Peters") pay an AUD 12 million penalty following ACCC proceedings.

Peters admitted to engaging in anti-competitive exclusive dealing between 2014 and 2019 and that such conduct had the likely effect of substantially lessening competition in the market for the supply of single-serve ice cream and frozen confectionery products in Australia. It made joint submissions with the ACCC to the Federal Court in respect of the penalty.

Peters had entered into a distribution agreement with PFD Food Services Pty Ltd (PFD) on the condition that PFD would not, without the prior written consent of Peters, sell or distribute other manufacturers' single-serve ice cream products that competed with Peters' single-serve ice cream products in various geographic areas throughout Australia.

The ACCC's media release in respect of Peters is accessible here.

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