1 June 2021
The ACCC has recently announced that it will bring civil proceedings against an Australian company and its director for alleged cartel conduct. According to ACCC’s press release, the conduct related to a 2019 tender for the replacement of a smart building management system at the National Gallery. Allegedly, an executive tried to fix the price of bids to be submitted by the company and its competitor in response to the National Gallery’s tender.
The attempt allegedly occurred over a cup of coffee in a Canberra café.
Cartel conduct is the most serious infringement under Australia’s competition laws and includes bid rigging, price fixing, market sharing and output restrictions. Unlike many other provisions of the competition law which require a substantial lessening of competition, cartel conduct ‘per se’ is an offence and can attract criminal sanctions.
The ACCC and the Australian Commonwealth Director of Public Prosecutions have been involved in a number of high-profile cartel matters over the last year. These include a criminal conviction of Norwegian shipping company, Wallenius Wilhelmsen Ocean AS, which was ordered to pay a fine of A$24M, an ongoing criminal prosecution of Country Care, and continuing pre-trial applications in the alleged “bank cartel”.
What is of interest here is that the ACCC decided to pursue the company in circumstances where the cartel was not formed, let alone given effect to. It is a salutary reminder that a (failed) attempt can be enough.
The ACCC is seeking pecuniary penalties, injunctions, declarations and costs, in addition to an order disqualifying an executive from managing a company.
It could be a very expensive cup of coffee.
For further information, please contact:
Thomas Jones, Partner, Bird & Bird
thomas.jones@twobirds.com
