The new Chair of the Australian Competition and Consumer Commission (ACCC) Gina Cass-Gottlieb delivered an important keynote address at the Pre-International Competition Network (ICN) Forum in Berlin on 3 May 2022. The speech emphasised the ACCC’s ongoing commitment to fostering global collaboration between competition agencies, and the importance of that collaboration for informing and enhancing the ACCC’s work, particularly in the areas of merger control, digital platforms, and the ACCC’s 2022-2023 enforcement priorities.
The International Competition Network, founded in 2001, is a consensus-based organisation with a membership of 120 national and multinational competition authorities which work collaboratively to address competition policy and enforcement concerns. Australia has taken an active role in the ICN in the past, with former ACCC Chair Rod Sims serving as the ICN Vice-Chair of Digital Coordination and Asia-Pacific Liaison in 2021. The Pre-ICNForum is organised by the International Chamber of Commerce and the International Bar Association Antitrust Section and runs in conjunction with the ICN Annual Conference taking place on 4-6 May 2022.
Ms Cass-Gottlieb told the audience that the surge in increasingly complex global mergers was a key area for collaboration between competition authorities. The recent example of the Cargotec-Konecranes merger proposal saw the ACCC, the UK’s Competition Markets Authority, the European Commission, the United States Department of Justice, and the New Zealand Commerce Commission collaborating and sharing information which ultimately informed the ACCC’s analysis and the direction of its review (withdrawn in light of regulatory opposition and difficulties in multiple jurisdictions).
The Chair also noted the emergence of a strategic approach by merger parties seeking clearances in multiple jurisdictions. This typically involved the parties focusing their efforts on a key jurisdiction while “marking time” in others until they were granted clearance in that key jurisdiction. Ms Cass-Gottlieb said that the ACCC was often approached “comparatively late” in the process, due to the absence of a mandatory notification requirement in Australia. Her view was that “in some cases there may be legitimate reasons for this approach but in others there may not be” and that “in most cases, [this approach] simply slows the entire process down”. Ms Cass-Gottlieb made it clear that “agencies make independent decisions and so can reach different conclusions even if they have engaged constructively with each other during their processes”.
While noting that Australia remained in the minority of countries without a mandatory-suspensory notification regime and that the ACCC was “increasingly facing practical challenges with merger parties pushing the boundaries of the informal system”, Ms Cass-Gottlieb was of the view that any reforms were ultimately up to the government. The Chair said that she was unable to advocate for any changes to Australian laws given the upcoming Australian Federal election on 21 May, and it remains to be seen whether her views differ from those of the previous ACCC Chair, who outlined the ACCC’s proposals for reforms to the merger control regime in August 2021.
Ms Cass-Gottlieb also noted the significant body of research produced in recent years by ICN member agencies regarding competition harms arising in digital platforms markets, including the ACCC’s own series of Digital Platforms Services Inquiry (DPSI) reports following the ACCC’s 2019 Digital Platforms Inquiry, which have looked at:
- search - ACCC Digital Platforms Services Inquiry Third Interim Report: web browsers and search services,
- social media - ACCC releases Digital Platforms Services Inquiry Interim Report on Online Private Messaging,
- app marketplaces - Digital Platforms Services Inquiry: ACCC releases App Marketplaces Interim Report,
- online retail marketplaces - Digital platform services inquiry - March 2022 interim report,
- display and search advertising and ad tech - ACCC v Google showdown: Ad Tech Inquiry Final Report.
These reports have recognised that certain characteristics of digital platforms markets (as well as large digital platforms’ acquisition strategies) may further entrench those platforms’ market power and position as gatekeepers between businesses and consumers, potentially leading to anti-competitive practices such as self-preferencing, tying, bundling and refusals to deal.
Ms Cass-Gottlieb told the audience that the ACCC was looking to its international counterparts in considering the need to introduce new regulatory tools, including ex ante regulation, to address its concerns in digital platform markets, given the inadequacy of traditional methods of enforcement (such as investigations and court proceedings) in such markets. The ACCC has recently referred to regulatory reforms either proposed or undertaken in the European Union, the United Kingdom, Germany, Japan and South Korea, as well as the US Senate and Congress, in its February 2021 Discussion Paper on the options for reform to address the issues identified in its DPSI reports.
Importance of global co-operation for the ACCC’s 2022-23 compliance and enforcement priorities
Ms Cass-Gottlieb emphasised the benefits of cooperation between competition agencies, such as more efficient investigations, reduced duplication of efforts to assess similar conduct, and reduced regulatory burdens on businesses. The ICN Intersection Project and the 2021 G7 Enforcers Summit (and resulting G7 Compendium of approaches to improving competition in digital markets) were cited as recent examples of successful efforts to share knowledge and expertise on competition law enforcement as well as the challenges posed by digital markets and Big Tech.
The ACCC Chair concluded her speech by highlighting the benefits of international co-operation for the ACCC’s 2022-23 compliance and enforcement priorities, in particular:
- Competition issues exacerbated by the COVID-19 pandemic, such as anti-competitive conduct in relation to global supply chains: The ACCC has formed a working group with US, UK, Canadian and New Zealand competition authorities to detect any attempts to use the COVID-19 pandemic as an excuse for collusion. The Chair made it clear that while regulators had sought to take the impact of the COVID-19 pandemic into account in their assessments in the short term, it was important to ensure that regulatory action ensured recovery, growth and promoted competition in the long term.
- Anti-competitive conduct in the financial sector, with a focus on payment services: Ms Cass-Gottlieb outlined that the ACCC was focused on promoting competition in card payments markets and was investigating allegations of conduct which limited the uptake of ‘least cost routing’ (LCR) by market participants. It was also investigating Apple’s practice of restricting access to near field communication (NFC) technology on its mobile phones and the terms it imposed on third parties for their use of Apple Pay.
Ms Cass-Gottlieb’s speech indicates that the ACCC will continue its active role in collaborating with its international counterparts and highlights the importance of such collaboration given the increasingly global nature of competition issues. In line with this commitment, the ACCC is to hold the presidency of the International Consumer Protection and Enforcement Network (ICPEN) in 2022-23.
Ms Cass-Gottlieb’s analysis of global merger parties’ strategic approaches to seeking clearance in multiple jurisdictions is particularly important in the context of increased global merger activity and several high profile global mergers on the horizon in 2022. Ms Cass-Gottlieb’s views in this speech indicate that the ACCC expects parties to engage with it early and to provide it with sufficient information to allow it to make its assessment (including as to any proposed remedies). The Chair’s speech also reflects the ACCC’s focus on competition issues regarding digital platforms markets and Big Tech, with the fifth DPSI report on options for regulatory reform, due to be released in September 2022, a key one to watch for.
The full transcript of Ms Cass-Gottlieb’s speech is available here.
Hear Partner Elizabeth Avery explore the ACCC’s new priorities in discussion with Matt Rubinstein on The Competitive Edge podcast: