ACCC Commissioner, Luke Woodward, speaks ACCC enforcemeent
Speaking at the Law Council of Australia’s Competition and Consumer Annual Workshop, ACCC Commissioner, Luke Woodward, spoke about the ACCC’s role in enforcing competition laws and discussed recent enforcement action and future strategies.
‘Turning to competition enforcement the ACCC’s program has also been very active. There’s often a tendency to focus on court cases, and particularly the significant penalty outcomes. But doing so means missing a significant part of the picture. Taking enforcement action and obtaining commercially relevant penalties is important, but we also get results in other ways.
You’ll already be familiar with our matters involving Google, Equifax and Sea Swift. The Telstra spectrum matter involving a rapid investigation and timely outcome to restore competition. Our ongoing litigation against Mastercard. And, of course, our significant cartel enforcement program – with important recent court outcomes and more matters currently before the courts.
But you will be less aware, naturally, of the ACCC’s broader education and compliance work and the many investigations underway, which are not yet public. But which, together with the more high-profile outcomes, reflect the breadth of the ACCC’s competition program and the range of tools used to improve compliance and reduce harm – and to achieve timely outcomes and restore competition in specific matters and markets.
Looking ahead – competition enforcement
… the cartel program will remain a cornerstone of our work. That’s not going to change.
But markets are evolving, and as we become more effective at addressing cartel conduct, we can expect forms of collusion and coordination to evolve and become more nuanced. This will require us to likewise evolve how we approach these matters. This may mean framing matters more broadly, including through concerted practices and substantial lessening of competition theories, where appropriate. We’re also strengthening our cartel detection capabilities, including in relation to bid-rigging.
Beyond cartels, as set out in our priorities, we are actively examining restrictive arrangements and conduct that may impede market access, weaken rivalry, reduce competitive intensity and generally soften conditions for competition. We have an active competition program and a strong pipeline of matters.
A common theme across a number of our matters is the use of commercial arrangements that can entrench market positions or make it more difficult for competitors to compete effectively. We are seeing – even in dynamic markets – the use of restrictive and exclusionary conduct in arrangements with suppliers or customers to exclude competitors, as reflected in our Google search and Equifax matters, as well as being in effect a core element to our allegations in relation to least cost routing in the Visa and Mastercard matters – noting that Mastercard has rejected these allegations and the matter is currently awaiting decision.
The limitations of relying solely on ex post enforcement is evident in these dynamic markets. By the time harmful conduct has been investigated and litigated, competition may have already been weakened and market structures more entrenched. And we continue to see an important role for targeted ex ante measures – alongside traditional enforcement approaches – to address these competition concerns.
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