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‘An interesting year’: Reflections on antitrust law in 2020
Despite the shift in focus for ACCC in the wake of COVID-19, there were “noteworthy developments” for competition lawyers last year, making this year an intriguing prospect, according to a new report.
Jerome Doraisamy
Global law firm Allen & Overy has published its annual Global Antitrust Enforcement Report, which analyses fines, developments and trends in antitrust enforcement, including global cartel conduct, vertical arrangements, abuses of dominance and, this year, the impact of COVID-19 on antitrust authority investigations.
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Across the globe, the firm found, 2020 saw “mixed results” in the issuance of fines for antitrust enforcement.
While countries like France and the US saw increases in cartel fines, other countries that have “reputations as aggressive enforcers”, such as Australia, saw much lower fine levels. Australia, in fact, issued no fines in relation to cartel conduct in 2020.
Such an approach set Australia apart in the Asia-Pacific region, compared to the fines issued in South Korea (US$102.2 million), Japan (US$40.7 million) and India (US$40.4 million).
The pandemic has “undoubtedly” had a significant impact on antitrust authorities’ investigative efforts in 2020, the firm wrote, with extended periods of remote working and restrictions on investigative procedures (such as dawn raids) reducing the pace and intensity with which they were able to operate.
“It would, however, be over-simplistic to conclude that the overall drop in fine levels in 2020 is solely attributable to the pandemic. As we have seen over the years of this report, the cyclical nature of antitrust enforcement means that fine levels naturally vary significantly year on year, largely due to the ability of one or two significant long-running investigations to materially skew the total,” it espoused.
“In addition, the impact of the pandemic on authorities’ investigative practices in 2020 is unlikely to have tracked through already to enforcement (including fines) in 2020. In that sense, the practical impact of the pandemic on fine levels may be seen more clearly in the months and year to come, although authorities will likely be keen to ramp up their efforts to make up for lost time.”
Speaking about the report, A&O partner and APAC head of competition Peter McDonald (pictured) said that it was “an interesting year” in the antitrust space in Australia, even with a lack of cartel fines being issued.
“We saw several attention-worthy developments – some related to COVID-19, and others the result of ongoing proceedings,” he said.
“Naturally, the ACCC shifted its focus to ensuring businesses could collaborate to a reasonable extent to support Australian consumers through the COVID-19 pandemic, which appears to have worked well.”
There were, Mr McDonald continued, “several noteworthy events” that unfolded over the course of 2020.
“For instance, the Commonwealth Director of Public Prosecutions laid criminal charges against a pharma company and its former export manager for 33 counts of conduct. The ACCC commenced civil cartel proceedings against an overhead crane company for alleged market sharing, amongst several other cases regarding alleged boycott conduct, resale price maintenance and exclusive dealing,” he outlined.
“We also saw the first conviction of an individual for inciting the obstruction of a Commonwealth official, which resulted in eight months’ imprisonment and a $10,000 fine for the individual in question.”
A&O’s competition team is looking forward to the remainder of 2021, Mr McDonald mused, particularly given ACCC’s recent announcement that it has “some fascinating investigations underway”, pertaining to the new misuse of market power provision.
