Draft guidelines regarding claims in price inquiries under section 95ZN of the Competition and Consumer Act 2010 (Cth)
The submisson to the Australian Competition and Consumer Commission (ACCC) in response to its draft guidelines regarding claims in price inquiries under section 95ZN of the Competition and Consumer Act 2010 (Cth) (CCA) (Draft Guidelines) was prepared by the Competition & Consumer Committee of the Business Law Section of the Law Council of Australia (the Committee).
The proffering of this guidance is particularly timely in circumstances where the proportion of the ACCC’s work being conducted under Part VIIA of the CCA has been increasing, both in the number of inquiries being undertaken by the ACCC at any one time and the period over which some of these inquiries are being run.
In 2018/19 alone, 10 price inquiries or market studies were commenced, continued or completed. As well as creating resourcing and operational challenges for the ACCC as it seeks to balance market study work with investigative work (as noted in its Annual Report), the prevalence of inquiries means that more entities than ever are becoming involved in price inquiries conducted by the ACCC.
In these circumstances, we welcome the ACCC providing guidelines and additional transparency to legal practitioners and business advisors, as well as entities regularly engaged with the ACCC, regarding the ACCC’s understanding and interpretation of the CCA. We have set out some comments on the approach set out in the Draft Guidelines below, for the ACCC’s consideration.
In summary, the Committee considers that the Draft Guidelines could be improved by clarifying:
- the circumstances in which section 95ZN applies;
- how the ACCC will assess competitive detriment; and
- how the ACCC will assess public interest.
In addition, the Committee recommends that the ACCC provide additional guidance regarding the timing and process of the confidentiality consultation and the timing and implications of the ACCC’s decision on confidentiality.
You can read the full submission below.