Previous issues:

Justice Heerey of the Federal Court, recently handed down judgment in the seminal cartel case of the ACCC vs Visy Industries and others. The case was the first major test of the ACCC's immunity policy

Marking the end of a legislative process that has lasted more than a decade, on 31 August 2007 the National People's Congress passed China's first Antitrust Law, to take effect 1 August 2008.

In June 2007, a majority in the US Supreme Court in Leegin Creative Leather Products v PSKS Inc overturned the per se prohibition on resale price maintenance (RPM) that had existed since the Court's 1911 decision in Dr Miles. Unlike the majority of other vertical arrangements, RPM remains a per se offence in Australia.

On 18 September 2007, the Senate passed amendments to section 46 of the Trade Practices Act 1974 (Cth). The most significant and highly controversial element of the amendments – a new section 46(1AA) prohibiting anti-competitive below-cost pricing – was added at the last minute.

A decision of the full Federal Court in October 2007 (BHP Billiton Iron Ore v NCC) has extended the scope of infrastructure facilities which may be subject to compulsory third party access under Part IIIA of the Trade Practices Act.

In September of this year, the European Court of First Instance handed down judgment in Microsoft Corporation v Commission of the European Communities. The Court upheld the European Commission's earlier finding that Microsoft had abused its dominant market position by refusing to supply interoperability information and tying Windows Media Player with the Windows PC operating system.

A summary of key ACCC comments on mergers and acquisitions 29 November 2006 - 1 March 2007.

On 7 February 2007, the Federal Court delivered judgment in Jurlique International Pty Ltd and Ors v ACCC, a case involving resale price maintenance and price fixing. The judgment is the first by an Australian court to recognise the validity of the argument that resale price maintenance is not anti-competitive.

The Big Day Out organisers' efforts to foil ticket scalping backfired when the Federal Court found that ticket conditions were misleading and deceptive under the Trade Practices Act. The decision demonstrates the importance of carefully drafting and offering consistent ticket conditions and the need to specifically draw customers' attention to those conditions prior to purchase.

In fining Woolworths $7 million plus costs for six contraventions of subsection 45(2) of the Trade Practices Act, the court noted that even though the competitive effect of Woolworths' conduct was not proven, nor was there necessarily a deliberate intention to breach the TPA, the matter should be viewed in light of the fact that it was commercially significant to Woolworths, and that Woolworths had made a deliberate attempt to affect competition in the local area.

While the new formal merger clearance system should provide greater certainty for parties in terms of process and outcome, the informational detail and rigidity inherent in the new procedures may mean that it is unlikely to be widely utilised by Australian business.

An anti-trust investigation of private equity firms in the US has triggered follow-up litigation by former shareholders of target companies. This has emphasised the need for the private equity industry in Australia and around the world to consider the anti-trust implications of the way in which they form consortia to acquire targets.

A summary of key ACCC comments on mergers and acquisitions September-December 2006.

Consumer Affairs Victoria has continued to crack down on 'unfair terms' in consumer contracts, at the same time as a parliamentary inquiry in New South Wales has recommended that a similar regime be adopted there. Businesses with national operations should be mindful that inconsistency between legislative regimes could bring additional compliance and administrative costs.

In recent months, the Australian Competition and Consumer Commission has taken a stricter stance on merger undertakings. Companies intending to offer an undertaking to the ACCC in a merger clearance should be prepared for the ACCC to be tougher in its approach. Companies that are already bound by undertakings should be aware that non-compliance could see them facing court action or, at a minimum, engendering distrust from the ACCC in relation to any future acquisitions.

Major changes to the Trade Practices Act have been accompanied by a new set of draft guidelines from the ACCC on formal merger reviews, non-merger authorisations and collective bargaining.

A summary of the key ACCC comments on mergers and acquisitions June-September 2006.

An investigation into retail stores offering credit card services to consumers in the United Kingdom has prompted regulatory action by the Competition Commission. This comes as a warning to retailers and credit providers in Australia that the Australian Competition and Consumer Commission (ACCC) may take similar action in Australia.

The ACCC implemented new Merger Review Process Guidelines in July, intended to refine and expand upon the ACCC's processes when reviewing mergers and acquisitions under section 50 of the Trade Practices Act 1974.

The first court challenge to a Competition Notice issued by the ACCC under the telecommunications-specific anti-competitive conduct rules in Part XIB of the Trade Practices Act 1974 (Cth) was heard in August, with the judgment likely to deliver a significant insight into the extent of the ACCC's obligations to consult with affected parties and to set out the detail of conduct alleged to be anti-competitive.

The Trade Practices Act Amendment (National Access Regime) Bill 2006, which seeks to implement the Federal Government's response to the Productivity Commission's Inquiry Report, Review of the National Access Regime, received assent on 18 August 2006. The majority of the Review's 33 recommendations are included in the Bill.

A recent decision, in which the ACCC successfully brought proceedings against Woolworths for six separate contraventions of the Trade Practices Act, is a reminder of the court's willingness to reprimand companies that use their influence and resources to achieve anti-competitive aims.

The involvement of governments in Australia as significant purchasers of goods and services means that in many situations the Trade Practices Act will not apply, leading to very significant consequences. The latest example of this arose in the ACCC v Baxter Healthcare case, where derivative crown immunity was confirmed.

The Federal Government is expected soon to consider an amendment to the Trade Practices Act that responds to the use of component pricing. Given the degree of opposition that the proposal has attracted and the issues raised, we are expecting a chilly response to the Bill.

Although competition and intellectual property policy are often considered together and balanced against each other, they are each governed by separate legislative regimes. The Federal Government has recently proposed amendments to the Patents Act 1990 (Cth), which introduce express competition policy considerations that will impact on the monopoly rights granted to patent holders in the interests of further promoting competition.

The Federal Court rejected Cadbury's claim that it had an exclusive reputation for the use of the colour purple in connection with chocolate.

The ACCC released its Small Business Guide to Trade Practices Compliance in April 2006, providing a timely reminder to businesses to review compliance procedures.

A summary of merger/acquisition activity to date this year.

As the proposed amendments to the Trade Practices Act to facilitate small business collective bargaining languish in Federal Parliament, a recent decision of the Australian Competition Tribunal demonstrates some of the difficulties of authorising collective bargaining and collective boycotts.

A summary of the key ACCC comments on mergers and acquisitions in 2005.

In 2005, the ACCC began enforcing the resale price maintenance prohibition with renewed vigour, with activities focused along the vertical supply chain.

The long mooted overhaul of Australia's media ownership laws moved closer to frutition with the release of a discussion paper by the Commonwealth Communications Minister Helen Coonan on 14 March 2006.

What does 2006 hold in store? Our competition and regulatory team has stared into a crystal ball and made our predictions for the year.

The ACCC has released Corporate Trade Practices Compliance Programs Gudelines aimed at medium to large companies to assist them in identifying the requirements for compliance with the Trade Practices Act 1974 (Cth).

The Federal Court imposed penalties totalling AUD8.9 million on Australian Safeway Stores Pty Limited on 31 January 2006, nearly a decade after proceedings were instituted. The penalties followed a decision by the Full Court in June 2003 that Safeway had engaged in price fixing and had misused its market power.