Program Manager: Dr Barbora Jedlickova

Participants: Prof Mark Furse from the University of Glasgow, Assoc Prof Jonathan Crowe

The Cartel Program is the first CPICL program in the area of comparative competition law. It investigates differences between cartel regimes in Australia, the European Union (‘EU’) and the United States of America (‘US’). In particular, it focuses on proving the existence of prohibited anti-competitive concertation in cartel regimes in Australia, the EU and the US and the evidence that may be used to this end. Both the relevant US and EU regimes are well based and older than the anti-cartel regime existing in Australia. Comparing the Australian practice with the EU and US practices can offer a useful reflection on the standards applied in the Australian approach. This project involves the survey of this issue in the context of the relevant legislation, the application of the legislation through decisions of implementing administrative authorities and case law of the courts, and in the light of relevant economic theories. The main focus will be on the detailed analysis of the relevant cases.

At this stage, the participants of the program assume that the the level of proving the existence of anticompetitive concertation in cartels in Australia, specifically, the existence of contracts, arrangements and understandings is set too high. This weakens the operation of the Australian Competition and Consumer Act 2010 (Cth) and undermines its purpose, which in part is to ‘enhance the welfare of Australians through the promotion of competition’ as provided in s 2 of the Act. Furthermore, the boundaries between those forms of anticompetitive concertation and also between them and lawful (pro-competitive) conduct are not absolutely clear, raising the danger that pro-competitive behaviour may be dampened. The program will explore the differences and similarities of the US, EU and Australian approaches in this matter. At its final stage, conclusions will be drawn and recommendations will be made as to how the relevant legislative provisions may be most effectively implemented and enforced and the approach(es) or even legislation changes required to ensure the highest possible protection against cartels and to the maximum enhancement of welfare.