On October 24, 2018, the Court of Justice of the European Union (CJEU) delivered its preliminary ruling in the case between Apple and eBizcuss, a former reseller of Apple products. (Case C‑595/17).

The judgment addresses a heavily contested issue: the application of contractual jurisdiction clauses in actions for damages for infringements of competition law. Importantly, the preliminary ruling distinguishes between Article 101 of the Treaty of the Functioning of the European Union (TFEU) (which deals with anti-competitive agreements and concerted practices such as cartels) and Article 102 of the TFEU (which deals with abuse of dominance) as regards the applicability of choice of forum clauses to competition damages claims.

Authors: Ian Nathaniel, Partner and Conrad Banasik, Associate

The small business unfair contract term legisation has been in force for almost 2 years, and the ACCC has been making enforcement of this legislation a priority.

However, ACCC Chairman Rod Sims has recently said that these changes are “deeply flawed”. He said that the law “does not go far enough, and its limitations really tie our hands as a regulator. What we want is unfair contract terms to be made illegal and we want huge penalties to apply.”

Ian Nathaniel, Partner and Conrad Banasik, Associate, take a look at recent ACCC enforcement action and whether the legislation needs to be strengthened.

Author: Tom Griffith, Partner

Following a finding on 19 March 2018 that Heinz had engaged in misleading and deceptive conduct, the Federal Court of Australia last week hit the food giant with a $2.25 million penalty. The decision marks a fresh approach to the regulation of the marketing of food products to address concerns that health benefits not be overstated, especially when targeted at children and their parents or carers, who are the purchasers of the products. It is a reminder for companies that the Australian Competition and Consumer Commission (ACCC) has power to request the imposition of significant penalties, and is not afraid to do so.

Authors: Tim Clark, Partner & Andrew Barling, Senior Associate

Following continuing complaints by consumers in relation to differences between the advertised NBN service speeds and those actually experienced by consumers, the Australian Competition and Consumer Commission (ACCC) continues to monitor the claims made by retail carriage service providers (RSPs) and has now taken action against one RSP.