The ACCC's loss in the egg case is a practical
example of the gap identified in the Harper Review between the
current law in Australia in comparison to comparable overseas
The Australian Competition and Consumer Commission
(ACCC) will appeal the Federal Court's
decision to dismiss its application for penalties against the
Australian Egg Corporation Limited (AECL) and
others in the egg industry for an alleged attempt to create a
cartel to control the supply of eggs.
This is not the first case brought by the ACCC that has come
unstuck by the requirements for reciprocity or commitment in the
context of a prescribed arrangement or understanding. ACCC Chair
Rod Sims said in announcing the appeal that "[d]etecting and
deterring cartel conduct continues to be a major focus for the
ACCC. It is important that we seek clarity from the Full Court on
issues of what will and will not constitute attempted cartel
conduct, particularly in the context of conduct by a trade
association interacting with its members".
However, the case may have been decided differently had the
Australian Government already acted upon recommendations from the
The most common example of a "concerted practice" is
where competitors share information on a regular basis which allows
them to co-ordinate their market conduct or avoid lossmaking
competition, but without reaching any agreements on how they will
The ACCC's first instance loss in the egg case is a
practical example of the gap identified in the Harper Review
between the current law in Australia in comparison to comparable
overseas jurisdictions (particularly Europe).
We, of course, will continue to watch this space with interest
to see whether the ACCC is more successful in its case, second time
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This is the first charge against a corporation under the criminal cartel provisions of the Competition and Consumer Act.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).