Market definition in ACCC v Flight Centre. Alice Muhlebach 8 March 2017

Transcription

1 Market definition in ACCC v Flight Centre Alice Muhlebach 8 March

2 Overview The role of market definition in this case key statutory provisions The market definitions adopted at first instance, by the Full Court, and by the High Court Some observations on the High Court s decision, and its possible implications for future cases 2

3 The role of market definition in this case - key statutory provisions Section 45 - Contracts, arrangements or understandings that restrict dealings or affect competition... (2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. (3) For the purposes of this section and section 45A, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services. 3

4 The role of market definition in this case - key statutory provisions Section 45A Contracts, arrangements or understandings in relation to prices (1) Without limiting the generality of section 45, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has or is likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other. Section 4E Market For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services. 4

5 ACCC v Flight Centre Travel Group Ltd [2016] HCA 49 Airlines Activities included operating flights and selling tickets directly Agency agreement Flight Centre Agent for the airlines in selling tickets (including making availability of tickets known to customers) Customers purchasing airline tickets Supply of distribution services? Supply of booking services? Was Flight Centre supplying distribution services to the airlines? Were the airlines supplying those services to themselves? Were Flight Centre and the airlines supplying booking services to customers? If so, were those booking and distribution services supplied in a market(s) other than the market in which the ticket was sold? 5

6 The market definitions adopted at first instance, by the Full Court, and by the High Court Markets identified by parties Booking and distribution services ACCC (primary case) Two separate markets for booking and distribution services (Dr Vince FitzGerald: single downstream market in which booking and distribution services are supplied.) Decision at first instance Single market for distribution and booking services in respect of available international air travel Decision on appeal (Full Court) No separate booking and distribution market High Court No separate booking and distribution market (Kiefel and Gageler JJ (French CJ, Nettle and Gordon JJ agreeing)) Supply of international air travel services Flight Centre Market for supply of international air passenger services ACCC (alternative case) Market for supply of international passenger air travel services (also identified separate alternative wholesale market for supply of international passenger air travel services, sitting above a retail market for supply of those services to consumers). Flight Centre does not supply services, or compete with the airlines, in relation to the supply of international passenger air travel services Market for the supply of international passenger air travel services Single market for the supply of contractual rights to international air carriage (ie, tickets), in which airlines and travel agents compete to supply tickets to customers (Kiefel and Gageler JJ (Nettle and Gordon JJ agreeing)) Single market in which international airlines compete for the sale of air travel services, and in which Flight Centre participates as an agent (and not a competitor) of the airlines (French CJ) 6

7 Some observations Well settled principles, but some salutary reminders: Commercially realistic markets Cautionary notes for economists (and those retaining them) Resolving a question about the functional dimension with an answer about the product dimension Testing for a commercially realistic market definition: essentiality, artificiality, and single manufacturer/brand markets Some questions for the future 7

8 For (vastly simplified) reference 8

9 In the matter of Fortescue Metals Group Limited [2010] ACompT 2 BHP Billiton, Rio Tinto Integrated mining, rail and port facilities for production of iron ore? Other miners May purchase rail haulage from Fortescue, possibly BHP Billiton/ Rio Tinto Customers purchasing iron ore Fortescue As for BHP Billiton, Rio Tinto, but also potentially a supplier of third party haulage services on BHP Billiton s and Rio Tinto s railways Tribunal identified four markets for rail haulage, separate from the markets for supply of iron ore, and the supply of rail track services Geographic dimension: vicinity of the relevant railway line Functional dimension: observed separability, negotiations, demand, power to withhold, feasible transaction costs Customer perception, separate business units not addressed Post Flight Centre, query whether concerns arise re single supplier/brand product market? 9

10 ACCC v Metcash [2011] FCAFC 151 Major supermarket chains (solely selfsuppliers) Purchased groceries from suppliers, wholesaled them to company owned retail stores, and sold groceries to customers from those stores Franklins As at left, but also provided wholesale supply to third party owned retail stores Metcash and SPAR Purchased groceries from suppliers, wholesaled them to third party stores Third party retailers Sold groceries to customers from retail stores Metcash and Franklins competed to supply wholesale grocery services to independent supermarkets; this competition occurred in a market which was held to include both wholesale supply and the supply of groceries to retail customers by integrated, self-supplying supermarket chains Constraints on standalone wholesalers posed by the retail activities of selfsupplying supermarket chains was key to this functional market definition Retail customers Outcome unlikely to be different post- Flight Centre, but would a constraints analysis have reached the same outcome in Flight Centre? 10

11 ACCC v ANZ [2015] FCAFC 103 ANZ Supplied loans and certain associated services (advice, assistance etc) re ANZ loans to retail customers BROKERS Supplied loan arrangement services for a range of banks products, including comparison, advice, assistance etc; paid commission by banks Held that ANZ did not compete with brokers in the market for the supply of loan arrangement services, because ANZ did not supply loan arrangement services (although it did engage in a subset of those activities as part of its supply of loans) Characterisation of service; substitution analysis Single supplier/product markets Limited significance of consumer perception, existence of separate business units Not a case about vertical integration Following Flight Centre, query outcome if different market had been considered? Retail customers Supply of loan arrangement services? 11