Competition and Antitrust

Meet the Co-chairs - TAGLAW

Dekker, Cees
Nysingh advocaten-notarissen N.V.

Hill, Christopher S.
Kirton McConkie, PC

Hauck, Dieter
Preslmayr Rechtsanwälte

Author: Dieter Hauck

A recently published decision by the Cartel Court demonstrates how a long-term relationship turned into an equally lengthy disagreement, which came to a decisive turning point in the courts.(1) An Austrian company, active since 1824 in the rubber and plastic industry (Semperit), formed a joint venture in Thailand in 1989 with a group of Thai companies (STA) for the production of examination gloves made from natural rubber. While Semperit contributed industrial know-how, STA had local facilities and access to a supply of natural rubber. Together with the joint venture, separate distribution agreements were concluded, which basically reserved exclusive distribution of the products in Europe and the Middle East for Semperit. From 2015, STA also tried to sell the products outside Thailand, including in Europe. This led to several disputes in and out of the courts commenced by Semperit in an attempt to prevent STA from selling the products, including arbitral proceedings before the International Chamber of Commerce.

Read more: Fig leaf for 'naked' cartel

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.

Read more: CJEU Clarifies Application of Choice of Forum Clauses in Damage Claims for Breach of Competition Law

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.

Read more: Australian Competition & Consumer Commission Priority – Small Business Unfair Contract Terms...

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.

Read more: ‘Heinz Sight’ is a Wonderful Thing: Food Giant Ordered to Pay $2.25 Million in Penalties

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.

Read more: Stay in your speed lane - a further warning to retail carriage service providers about NBN speed...