On 6 December 2019, the ACCC launched its first enforcement proceedings under the new ‘effects test’ prohibition on misuse of market power. The proceedings will provide much needed guidance as to how the much-debated ‘effects test’ will apply to unilateral conduct.
It is noteworthy that the two proceedings to date that invoke the ‘effects test’ – i.e., this case and Qube’s recent and well-publicised private action against Port of Newcastle Operations – have involved port operations given that, post-privatisation, the sector has been a key ACCC focus and historically the subject matter of several leading competition cases.
However, these proceedings will have ramifications for businesses beyond the ports sector, particularly in sectors that the ACCC may consider to involve participants with a substantial degree of market power.
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