The ACCC has recently announced that it will bring civil
proceedings against an Australian company and its director for
alleged cartel conduct. According to ACCC's press release, the conduct related to a 2019
tender for the replacement of a smart building management system at
the National Gallery. Allegedly, an executive tried to fix
the price of bids to be submitted by the company and its competitor
in response to the National Gallery's tender.
The attempt allegedly occurred over a cup of coffee in a Canberra
café.
Cartel conduct is the most serious infringement under
Australia's competition laws and includes bid rigging, price
fixing, market sharing and output restrictions. Unlike many
other provisions of the competition law which require a substantial
lessening of competition, cartel conduct 'per se' is an
offence and can attract criminal sanctions.
The ACCC and the Australian Commonwealth Director of Public
Prosecutions have been involved in a number of high-profile cartel
matters over the last year. These include a criminal
conviction of Norwegian shipping company, Wallenius Wilhelmsen
Ocean AS, which was ordered to pay a fine of A$24M, an ongoing
criminal prosecution of Country Care, and continuing pre-trial
applications in the alleged "bank cartel".
What is of interest here is that the ACCC decided to pursue the
company in circumstances where the cartel was not formed, let alone
given effect to. It is a salutary reminder that a (failed) attempt
can be enough.
The ACCC is seeking pecuniary penalties, injunctions, declarations
and costs, in addition to an order disqualifying an executive from
managing a company.
It could be a very expensive cup of coffee.
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