Extract

I. Introduction

In this article, I propose to focus on three competition law areas and topics that go to the heart of competition policy: namely cartels, the application of ‘lessening of competition’ thresholds, and our approach to market studies.

Cartels provide some of the more vivid and egregious examples of competition law contraventions. July this year marked a decade since Australia criminalized cartels. I intend to discuss the ACCC’s experience building a criminal enforcement capacity, and how we support Australia’s independent prosecutor in its assessment of briefs we refer, and then subsequent prosecutions.

Secondly, I will provide a view of the Australian experience with the application of competition thresholds, and the substantial ‘lessening of competition’ test in mergers and anticompetitive agreements. The current debate centres around whether too much confidence is being placed on the capacity for market forces to always protect competitive outcomes, and whether too little weight is being given to the role that structure and incentives play.

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