Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

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Under both the civil and criminal prohibitions, the Federal Courts may impose fines of up to A$50 million (approximately US$ 33 million), or three times the value of the benefits through the conduct, or 30% of the annual turnover of the body corporate during the period of 12 months ending at the end of the month in which the act or omission occurred for other violations of Part IV (Section 76). Un …

Fines

  Section 80 authorizes certain anticompetitive practices violating the CCA to be the subject of injunctions. This Section provides that injunctions are available to “a person.” This has been interpreted to mean that there is no standing requirement. The power of the court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind. Likewise, the power of the court to grant an injunction requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first mentioned person refuses or fails to do that act or thing.

Cease and desist orders

Under both the civil and criminal prohibitions, the Federal Courts may impose fines of up to A$50 million (approximately US$ 33 million), or three times the value of the benefits through the conduct, or 30% of the annual turnover of the body corporate during the period of 12 months ending at the end of the month in which the act or omission occurred for other violations of Part IV (Section 76). Under civil prohibitions, fines for individuals are limited to A$ 500,000 (US$ 337.849,93). Individuals face up to 10 years in prison and/or fines of A$ 360,000 (US$ 243,251.95) under criminal prohibitions.

  The ACCC developed a Leniency Policy in October 1998. Pursuant to this policy, the ACCC will request reduced penalties from the court where certain conditions are satisfied. The Federal Courts have also held that the factors listed in the ACCC Leniency Policy are relevant to their own determination of appropriate sanctions. The policy states that leniency is likely for a corporation that: comes forward with valuable information which the ACCC is not aware of or in a situation where the ACCC has insufficient evidence to initiate proceedings; however, the undertaking must promptly terminate its participation in the illegal activity and fully cooperate with the investigation. Moreover, the enterprise must not have been the ring leader or have coerced other corporations to participate in the anticompetitive activity or have a record of prior offenses. The ACCC immunity policy for cartel conduct was revised in July 2009 and then again in August 2014. This policy provides greater certainty for immunity applicants so that the ACCC is better able to detect and break up hard-core cartels operating in Australia. Cartel participants may seek both civil and criminal immunity for cartel conduct, the ACCC being responsible for granting civil immunity, and the CDPP being responsible for granting criminal immunity. However, the ACCC is the sole point of contact for applicants seeking civil and/or criminal immunity. Applications must be made to the ACCC in accordance with the procedures set out. The ACCC may refer a matter to the CDPP by way of recommendation in relation to criminal immunity.

The Leniency policy applies to cartel conduct in contravention of Division 1 of Part IV of the CCCA which probibits a corporation from making or giving effect to contracts, arrangements or understandings that contain a cartel provision, and/or section 45(2) of the CCA.

A corporation will be eligible for conditional immunity from ACCC-initiated civil proceedings where: (i) the corporation is or was a party to a cartel ; (ii) the corporation admits that its conduct in respect of the cartel may constitute a contravention or contraventions of the CCA; (iii) the corporation is the first person to apply for immunity in respect of the cartel under this policy; (iv) the corporation has not coerced others to participate in the cartel; (v) the corporation has either ceased its involvement in the cartel or indicates to the ACCC that it will cease its involvement in the cartel; (vi) the corporation's admissions are a truly corporate act (as opposed to isolated confessions of individual representatives); (vii) the corporation has provided full, frank and truthful disclosure, and has cooperated fully and expeditiously while making the application, and undertakes to continue to do so, throughout the ACCC’s investigation and any ensuing court proceedings. Furthermore, at the time the ACCC receives the application, the ACC must not have received written legal advice that it has reasonable grounds to institute proceedings in relation to at least one contravention of the CCA arising from the conduct in respect of the cartel. In order to maintain conditional immunity once granted, the corporation must provide full, frank and truthful disclosure and cooperate fully and expeditiously on a continuing basis throughout the ACCC’s investigation and any ensuing court proceedings.

In addition, under Section H of the Leniency policy, parties not eligible for ‘first-in’ immunity may also cooperate with the CCA in its investigations in return for a recommendation of a penalty discount to the courts. Besides, a party who is cooperating with the CCA under section H in relation to one cartel may discover a second cartel that is independent and unrelated to the first cartel and may apply for conditional immunity for the second cartel and also seek ‘amnesty plus’ for the original cartel conduct.

An individual may also apply for immunity under this part of the ACCC's immunity policy. 

Leniency

  Section 82 of the Act authorizes individuals who are harmed by a violation of Part IV (anticompetitive agreements, misuse of market power, exclusive dealing, and resale price maintenance), to sue for damages in the Federal Courts. Private suits for injunctive relief are available under Sections 80, 80AB, 82 and 87. Class action suits by private parties are authorized where seven or more persons have claims raising common issues of law or fact (See Federal Court of Australia Act 1976 (Cth), Part IVA).

Global Competition Law

805. Fines

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Les notions juridiques connexes

805. Fines

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Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise