Australia (1974)
Score = 25
Governed by: The Trade Practices Act of 1974[1] (hereinafter referred to as “Trade Act”). [2]
| Category | Subcategory | Score | Comment |
|---|---|---|---|
| Scope | Extraterritoriality | 1 | §5(1) extends scope to conduct outside Australia |
| Remedies | Fines | 1 | The Act imposes fines and imprisonment for violations. |
| Prison Sentences | 1 | The Act imposes fines and imprisonment for violations. | |
| Divestitures | 1 | §81 says that an injured party can request the Commission dissolve a company formed by a merger that restricts competition. | |
| Private Enforcement | 3rd Party Initiation | 1 | Part IV says that 3rd parties can bring private actions under the Trade Act. |
| Remedies Available to 3rd Parties | 1 | §80 says that 3rd parties can request injunctions, damages, or divestitures. | |
| 3rd Party Rights in Proceedings | 1 | Part IV gives 3rd parties rights to participate in the proceedings. | |
| Merger Notification | Voluntary | 1 | The Merger Guidelines allow merging companies to obtain clearance from the Commission that is not legally binding or the Commission can enjoin or divest a merger if they see fit.[3] |
| Mandatory | 0 | ||
| Pre-merger | 2 | This clearance can be obtained at any time before the merger is completed.[4] | |
| Post-merger | 0 | ||
| Merger Assessment | Dominance | 1 | §50(3) lists the resultant level of market concentration as a factor in merger assessment. |
| Restriction of Competition | 1 | §50(1) prohibits mergers that substantially lessen competition. | |
| Public Interest (Pro D) | 1 | Mergers can be cleared by the Commission if their public benefits outweigh the restrictions on competition. | |
| Public Interest (Pro Authority) | 0 | ||
| Other | 0 | ||
| Efficiency | 1 | §50(3) lists the effect on the dynamic characteristics of the market including growth and innovation as factors in merger assessment. | |
| Dominance | Limits Access | 1 | An explanatory memo prohibits limiting access to supplies on the market under §46.[5] |
| Abusive Acts | 1 | §46 prohibits the use and abuse of market dominance. | |
| Price Setting | 1 | An explanatory memo on §46 shows that price setting is illegal.[6] | |
| Discriminatory Pricing | 1 | An explanatory memo on §46 shows that discriminatory pricing is illegal.[7] | |
| Resale Price Maintenance | 1 | §48 prohibits resale price maintenance. | |
| Obstacles to Entry | 1 | §46 prohibits actions that prevent entry into the market. | |
| Efficiency Defense | 1 | §90 allows a defense when the benefits to the public outweigh the effects on competition. | |
| Restrictive Trade Practices | Price Fixing | 1 | §45A(1) prohibits price fixing. |
| Tying | 1 | §47 prohibits tying | |
| Market Division | 1 | §45 prohibits market division. | |
| Output Restraint | 1 | §45 prohibits output restraint. | |
| Market Sharing | 1 | §45 prohibits market sharing. | |
| Eliminating Competitors | 1 | §45(2) prohibits agreements or understandings that have the purpose of reducing competition | |
| Collusive Tendering/Bid-Rigging | 1 | §45 prohibits bid-rigging | |
| Supply Refusal | 1 | Group boycotts are prohibited under §45. | |
| Efficiency Defense | 1 | §90 allows a defense when the benefits to the public outweigh the effects on competition. |
References
- ↑ This act was amended in 2006, though the effects of the amendments are not included here.
- ↑ Australian Government Attorney General’s Department website, http://scaleplus.law.gov.au/html/pasteact/0/115/top.htm
- ↑ Australian Competition and Consumer Commission, Merger Guidelines, (June 1999).
- ↑ Id.
- ↑ Trade Practice Commission, Misuse of Market Power – Section 46 of the Trade Practices Act – A Background Paper §g, 253 (Feb. 1990).
- ↑ Id.
- ↑ Id.