The ACCC is prosecuting petrol retailers including BP,
Caltex, 7-Eleven and Woolies for price sharing via a website called
Informed Sources, which provides petrol price data on an almost
The trick is that only petrol retailers have access to the
website. According to the ACCC, the conduct is likely to increase
petrol price coordination and cooperation, and decrease competitive
The concern is that Informed Sources allows the retailers to
monitor the effect of their price increases. If the other retailers
don't follow; the first retailer can withdraw the increase. Or
the others can take the bait and up their prices too.
The retailers disagree. They say that they use the information
to make sure their prices are competitive, benefiting
Here's the thing though; the ACCC isn't prosecuting a
price fixing claim under the cartel conduct rules. It has opted to
rely on the more general prohibition of conduct likely to
substantially lessen competition. Interesting call. We're not
so sure it was a good idea.
The effect of the decision is that the ACCC doesn't have to
prove a contract, arrangement or understanding between competitors
in order to succeed. That would be hard because Informed Sources
deals separately with each retailer and isn't itself their
The trade off is that it has to prove a substantial reduction of
competition, which it needn't prove for a cartel claim.
Interestingly, the retailers' main defence is that the conduct
improved competition. That wouldn't have helped them much if
the ACCC had relied on the cartel provisions.
The case has implications beyond the petrol industry. There are
a bunch of businesses offering price sharing services like Informed
Sources; even (gulp) in the legal industry. If you use these
services, best to watch this space.
This is the second time recently that the ACCC has sought an
easier path for a prosecution. In its case against Coles it opted
to pursue unconscionable conduct claims rather than misuse of
market power. Some might say a win is a win. We reckon they're
looking a bit soft, while trying madly to signal to the Government
that the legislation needs to be beefed up.
We do not disclaim anything about this article. We're
quite proud of it really.
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In some cases these fees or surcharges are higher than what a bank charges to these merchants for use of the system.
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