You’re NYKKed (nicked)! – Australia’s first successful criminal cartel prosecution

Introduction

In August 2017, the ACCC achieved its first successful prosecution under the criminal cartel provisions of the Competition and Consumer Act 2010 (CCA) against Nippon Yusen Kamushiki Kaisha (NYKK).[1]  There is no doubt that this was a ground-breaking moment for the ACCC given that the criminal cartel provisions were introduced nine years ago, in 2009.  The case is also notable for the quality and comprehensiveness of the judgment delivered by Justice Wigney of the Federal Court of Australia.  Justice Wigney has a great deal of experience in relation to criminal matters, which he was able to bring to bear in his judgment.[2]

ACCC Chairman Rod Sims was also quick to claim that the case demonstrated that the ACCC’s investment in building a substantial team of specialist criminal cartel investigators was paying off:

To put all this another way, our criminal cartel machine is now built, and running at its appropriate capacity. You will now see its continuing output.[3]

While it is true that the NYKK case was a very positive outcome for both the ACCC and for criminal cartel jurisprudence in Australia, its seems decidedly premature to claim that the ACCC’s criminal cartel machine is now built and running at appropriate capacity.  Such a judgment can only be made once the ACCC has successfully investigated, and the CDPP has successfully litigated, a contested criminal cartel prosecution.

Background

NYKK’s conduct arose from a longstanding global cartel in the market for the supply of ocean shipping services for “roll-on, roll-off” cargo, primarily cars and trucks.  The other shipping companies implicated in the cartel were:

•  Mitsui OSK Lines Ltd
• Kawasaki Kisen Kaisha Ltd
• Toyofuji Shipping Co.
• Nissan Motor Car Carrier Co and
• Wallenius Wilhelmsen Logistics AS.

 The cartel offence related to:

• the fixing of freight rates on shipping routes to Australia
• the rigging of bids in response to requests for bids by the motor vehicle manufacturers, and
• the allocation of customers (ie motor vehicle manufacturers) between the members of the cartel. 

Justice Wigney found that whilst NYKK’s conduct had occurred over an extensive period of time, the charges only related to the three-year period from 2010 to 2012.  He also found that NYKK’s illegal conduct had involved 69,348 new vehicles and that NYKK had derived revenue of AU$54.9 million and profit of AU$15.4 million from the contracts which were the subject of the illegal conduct [para 6].

Overseas investigations

Justice Wigney also described the cartel investigations which had been conducted by overseas competition regulators.  He referred to the Japan Fair Trade Commission (JFTC) and the United States Department of Justice (DOJ) which had commenced their investigations on 6 September 2012 with dawn raids at a number of offices of both NYKK and the other shipping companies implicated in the cartel [para 160].

The ACCC commenced its own investigation at around the same time, on 10 September 2012.  In stark contrast to the way in which the JFTC and DOJ commenced their investigations, the ACCC did not conduct a dawn raid but instead decided to send a fax to NYKK’s Australia office. Somewhat embarrassingly for the ACCC it appears that their fax was sent to the wrong number. As noted by Justice Wigney:

It would appear that the ACCC’s fax did not come to the immediate attention of management of NYK Australia or NYK because it was received by a fax machine located in the container shipping sales department of NYK [para 162].

Overseas investigations were subsequently commenced by the Competition Commission of South Africa, Chile’s Fiscalia National Economica, and China’s National Development and Reform Commission.

Significant penalties were levied against NYKK in a number of these jurisdictions:

• United States – US$59.4 million
• Japan - AU$157 million administrative surcharge
• South Africa – AU$10 million
• Chile – US$25 million.

NYKK was not fined in China as it was the immunity applicant. The other participants in the cartel was fined a total of US$65 million [para’s 163-170].

Sentence

In approaching the task of determining the appropriate sentence, Justice Wigney outlined the relevant legislative scheme namely Part IB of the Crimes Act.  The relevant checklist of factors to be taken into consideration in determining sentence are listed in section 16A(2) of the Crimes Act:

(a)     the nature and circumstances of the offence;

(b)     other offences (if any) that are required or permitted to be taken into account;

(c)      if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character--that course of conduct;

(d)     the personal circumstances of any victim of the offence;

(e)     any injury, loss or damage resulting from the offence;

(ea)   if an individual who is a victim of the offence has suffered harm as a result of the offence--any victim impact statement for the victim;

 (f)     the degree to which the person has shown contrition for the offence:

(i)      by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)     in any other manner;

 (fa)  the extent to which the person has failed to comply with:

(i)             any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 ; or

(ii)            (ii)  any obligation under a law of the Commonwealth; or

(iii)         (iii)  any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g)     if the person has pleaded guilty to the charge in respect of the offence--that fact;

(h)     the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j)      the deterrent effect that any sentence or order under consideration may have on the person;

(ja)    the deterrent effect that any sentence or order under consideration may have on other persons;

(k)      the need to ensure that the person is adequately punished for the offence;

(m)    the character, antecedents, age, means and physical or mental condition of the person;

(n)     the prospect of rehabilitation of the person;

(p)     the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

As is an apparent, a number of the section 16A(2) factors relate specifically to individual defendants, as opposed to corporate defendants.

Nature and circumstances of the offence - section 16A(2)(a)

Justice Wigney stated that NYKK had committed a very serious offence which required condign or appropriate punishment [para 204].  As set out in the agreed facts, NYKK had given effect to the cartel on at least 20 separate occasions over a three-year period.  Having said that the CDPP presented an indictment containing a single “rolled up" charge, rather than 20 separate charges [para 206].

Maximum penalty

Based in the “rolled up” charge, the maximum fine for the offence was $100 million or 10% of NYKK’s annual Australian turnover [para 208]. Despite some attempts by NYKK to argue for a lower maximum penalty (ie three times the illegal profits made from the cartel or approximately $45 million) these submissions were rejected by the Court [para 212].

Justice Wigney also noted that both the CDPP and NYKK had “controversially” taken the Court to various civil penalties imposed by the Court in relation to civil cartels and other anti-competitive conduct. Again, the Court rejected these submissions as being of little assistance in the determination of the appropriate sentence for a criminal offence [para 221].

Duration and scale of conduct

The Court found that the conduct the subject of the charges had continued for three years. However, the Court also noted that the relevant cartel agreements had been in place for substantially longer than three years – in fact, one of the relevant agreements had been in place for 15 years, since 1997.  Justice Wigney stated that this earlier conduct was relevant to sentencing as an aggravating factor [para 224].

The Court also found the scale of the conduct to be substantial, impacting on a significant and valuable market. Justice Wigney stated that:

There could be little doubt that anti-competitive conduct the subject of the charge had the capacity to substantially limit or distort the competitive setting of freight rates in the relevant routes to Australia, the likely result being that rates were higher than they would have been in a competitive market. [para 226].

Deliberate, systematic and covert conduct

Justice Wigney found that NYKK’s conduct was systematic, well-orchestrated and involved a high-level of planning and coordination [para 240]. He also found that steps were taken by NYKK managers to hide their illegal conduct by communicating orally over the telephone and at face-to-face meetings and either not documenting these communications or documenting them in such a way as to hide the substance of the communications [para 241].

Seniority of managers engaged in illegal conduct

There was no dispute that senior NYKK managers were the driving force behind the illegal conduct [para 244].

Profitability of illegal conduct

It was agreed that NYKK generated revenue of $54.9 million and profits of $15.4 million from the contracts the subject of cartels.  However, it was not possible to calculate the actual revenues and profits directly attributable to the cartel conduct [para 245].

Impact on victims - section 16A(2)(d)

There did not appear to be a significant amount of evidence in the case about the actual impact of the illegal cartel agreement on victims (ie the major new car manufacturers and ultimately Australian consumers).   Due to the absence of evidence, Justice Wigney surmised that there was likely to be significant impact on markets and the economic system, although the amount could not be quantified [para 252].

Contrition and rehabilitation - sections 16A(2)(f) and (n)

The Court found that NYKK had demonstrated genuine contrition.  NYKK had also made significant changes to its management and compliance structures which indicated that NYKK’s prospects of rehabilitation were high [para 253].

Plea of guilty - section 16A(2)(g)

The Court found that NYLL had entered a plea of guilty at the earliest opportunity:

Full recognition should be given to the remorse, acceptance of responsibility and willingness to facilitate the course of justice demonstrated by the plea. [para 255]

NYKK Cooperation - sections 16A(2)(h) and 16AC

NYKK agreed to fully cooperate with the ACCC investigation, including facilitating interviews with NYKK executives who could not have been compelled by the ACCC to come to Australia to attend interviews [para 264]. 

In the relevant Statement of Agreed Facts put before Justice Wigney, an ACCC officer gave evidence that NYKK had provided “full, frank and truthful disclosure and cooperated fully and, in most instances, expeditiously, on a continuing basis throughout the ACCC’s investigation” [para 264].

Furthermore, NYKK agreed to plead guilty to a “rolled up” charge at a very early stage and signed an undertaking pursuant to section 16AC of the Crimes Act 1914 to provide future assistance.

Interestingly, Justice Wigney also referred in his reasons to confidential evidence which had been filed in the case which could not be referred to with any specificity.  He described this confidential evidence as “potentially significant”. Whilst one can only speculate about this evidence, it most likely relates to evidence from NYKK of other separate and significant contraventions of the CCA. For example, the existence of a cartel in a related market, such as the container shipping market [para 268].

Justice Wigney concluded that in all the circumstances the appropriate discount for NYKK’s past cooperation, assistance, plea of guilty, contrition and remorse was 40%, He also allowed a further discount of 10% for NYKK’s future cooperation [para’s 267 and 269].

Deterrence - sections 16A(2)(j) and (ja)

In considering the issue of deterrence the Court is required to consider both specific and general deterrence. However, in this case the Court found that specific deterrence was not a significant consideration as such specific deterrence had already been achieved, as demonstrated by NYKK’s contrition. Accordingly, the main purpose of the penalty in this case was general deterrence or to deter other companies which may be weighing up whether to engage in cartel conduct [para 274].

Adequate punishment - section 16A(2)(k)

The main question in relation to this factor was the weight which the Court should accord to the penalties paid by NYKK in other jurisdictions in relation to the cartel conduct.  The Court concluded that while some weight should be given to the overseas penalties, these penalties should not be given significant weight. This was because these overseas penalties related to different routes, contracts and customers [para 275ff].

Antecedents - section 16A(2)(m)

A highly relevant factor in mitigation was the fact that NYKK did not have a prior record of corporate criminal misconduct in Australia or indeed elsewhere [para 284].

Appropriate Sentence

After weighing up all of the above factors Justice Wigney determined that the appropriate penalty for NYKK’s conduct was half of the maximum penalty – ie $50 million.  He then applied a 50% discount to the appropriate penalty to arrive at a total penalty of $25 million. 

It is worthwhile to quote in full Justice Wigney’s comments about how he arrived at the penalty:

299.     Having regard to all of the relevant features and factors, and giving them appropriate weight, the appropriate sentence in all the circumstances is a fine of $25 million. That fine incorporates a global discount of 50% for NYK’s early plea of guilty and past and future assistance and cooperation, together with the contrition inherent in the early plea and cooperation: meaning that but for the early plea and past and future cooperation, the fine would have been $50 million. Of that 50% discount, 10% relates to future cooperation. For the purposes of s16AC of the Crimes Act, it is stated that the severity of the sentence imposed on NYK has been reduced because NYK has undertaken to cooperate with law enforcement agencies in proceedings relating to alleged offences committed by others and that the sentence that would have been imposed but for that reduction was $30 million.

300.     Cartel conduct of the sort engaged in by NYK warrants denunciation and condign punishment. It is inimical to and destructive of the competition that underpins Australia’s free market economy. It is ultimately detrimental to, or at least likely to be detrimental to, Australian businesses and consumers. The penalty imposed on NYK should send a powerful message to multinational corporations that conduct business in Australia that anti-competitive conduct will not be tolerated and will be dealt with harshly. That is so even where, as here, the decisions and conduct are engaged in overseas and as part of a global cartel. As has already been explained, but for NYK’s cooperation and willingness to facilitate the administration of justice, the penalty would have been substantially higher. That should serve as a clear and present warning to others who may have, or may be considering or planning to, engage in similar conduct.

Jumping the gun

The ACCC should be applauded for its efforts in investigating the NYKK cartel case. After a clumsy start, the ACCC appears to have conducted a thorough investigation which lead to the preparation and presentation of a sound brief of evidence to the CDPP.  Unfortunately, Rod Sims’ claims that the ACCC's “criminal cartel machine is built and running at appropriate capacity” sounds more like hubris than an accurate assessment of the challenges facing the ACCC in successfully investigating and prosecuting a contested criminal cartel case. 

Based on my own personal experience of representing clients in ACCC criminal cartel investigations, it is apparent that the ACCC has a great deal more fine tuning to do in relation to its criminal cartel machine. For example, I acted for a client in 2015 who was the subject of a criminal cartel investigation in which the ACCC had executed a number of search warrants.  It became apparent in the course of that particular investigation that the ACCC had made at least five fundamental mistakes in the execution of its search warrants.  After these five mistakes were pointed out to the ACCC, it decided to terminate its investigation of the matter (admittedly without conceding that it had made any of the alleged mistakes!)

The true proof of the effectiveness of the ACCC criminal cartel machine will be when it successfully investigates and the CDPP successfully prosecutes a contested criminal cartel matter.  In order to succeed in a contested criminal cartel case, the ACCC will have to ensure that it:

• properly executes all search warrants and maintains a proper chain of evidence
• carefully selects appropriate witnesses for trial and
• genuinely seeks to identify and address all potential weaknesses in its case prior to submitting a brief of evidence to the CDPP.

The CDPP will only be able to succeed in a contested criminal trial if it is able to:

• navigate all of the evidentiary requirements in terms of proving the physical elements (ie the act of participating in the cartel or the making and/or giving effect to the cartel agreement) and the additional fault elements (ie knowledge or belief) of the cartel offence; and
• address all of the various defences which may be raised by the defendant/s, including the recently expanded joint venture defence. 

Significantly, in order to be successful in the prosecution the CDPP will also have to prove its case beyond reasonable doubt to the satisfaction of a jury and achieve a unanimous jury verdict.

While the ACCC and the CDPP have the capacity to successfully run contested criminal cartel prosecutions, this will only be possible if the ACCC tones down the hubris and accepts that there is still an enormous amount of work to do on fine tuning its “criminal cartel machine”.  A good starting point would be for the ACCC to take steps to engage with legal practitioners who have been on the other side of a criminal cartel investigation in a genuine effort to learn from its mistakes.

[1] Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (3 August 2017) at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/876.html

[2] As stated in Justice Wigney’s Federal Court biography, prior to his appointment, his Honour practiced as a barrister who specialized in, in complex "white collar" crime and civil penalty contraventions (in particular insider trading and other financial market offences, directors' duties, taxation, fraud and money laundering), competition and consumer law, administrative law, taxation and commissions and inquiries. Justice Wigney had also previously worked as a solicitor at the Commonwealth Director of Public Prosecutions. Interestingly, Justice Wigney also worked on an earlier ACCC - CDPP criminal prosecution of Chubb Australia Pty Ltd in 2004 as junior to Des Fagan SC - Australian Competition and Consumer Commission v Chubb Security Australia Pty Limited [2004] FCA 1750 (30 December 2004) at http://classic.austlii.edu.au/au/cases/cth/FCA/2004/1750.html

[3] Rod Sims, “Criminal cartel investment pays off”, ACCC Media Release, dated 5 August 2016 at https://www.accc.gov.au/media-release/criminal-cartel-investment-pays-off

Shake it Up: Major changes ahead for new car industry

Introduction

The ACCC’s recent New Car Retailing Industry market report is in many respects a watershed moment for the Australian new car industry. The report lays bare many of the questionable practices which have been occurring in the new car industry for many years, including the refusal of many new car retailers to honour consumer guarantees for defective vehicles, inaccurate fuel consumption information being provided to consumers and restrictions on access to technical information for the repair and service of new cars. In this article I will outline the main findings and recommendations of the ACCC’s Report and consider the likely future regulatory landscape which will be facing new car retailers in Australia.

Structure of ACCC Report

The ACCC’s report begins with a summary of the characteristics of the new car retailing industry.  It then identifies four main areas of concern:

• Consumer guarantees and warranties;
• Accessing technical information to repair and service new cars;
• Parts needed to repair and service new cars; and
• Fuel consumption and emissions.

The ACCC also makes three key findings in its report as follows:

1. The law offers protections for consumers when purchasing new cars, but there are material deficiencies in the way that consumers are able to enforce their rights, and the way these rights are represented to them by manufacturers and dealers.
2.  Concerns remain about the effect of limited access to information and data required to repair and service new cars.
3. Consumers are not receiving accurate information about the fuel consumption or emissions performance of new cars.

New Car Industry

The ACCC summarised the size and characteristics of the Australian new car industry by reference to the following figure:

One of the most notable features of the above diagram is the control which car manufacturers maintain over new car retailing through their ownership of various distributors as well as the process of authorising dealers to sell their vehicles.

The ACCC also estimates the sources of profit for car dealers as follows:

As is clear, new cars comprise the largest share of total revenue for new car dealers, as well as the largest contrinution to gross profits at 38%.  The next largest contributor to the dealer’s gross profits are service fees.

Consumer guarantees and warranties

The ACCC made a number of quite surprising findings about the way in which new car dealers have responded to attempts by consumers to enforce their consumer guarantee rights. The ACCC found that many consumers were having difficulty enforcing consumer guarantees due to a dominant “culture of repair” underpinning manufacturers’ systems and policies for dealing with defects and failures.

Even in situations where the new car has systemic mechanical failures, which constituted a major failure, car manufacturers and dealers would routinely offer a repair rather than a full refund.  From my own experience in advising consumers in relation to disputes with car dealers it is quite apparent that the many dealers hold the incorrect view that consumer guarantees did not apply to a new car purchase.

The ACCC concluded that the primary reason for car dealers and manufacturers failure to honour consumer guarantees were the manufacturers’ complaints handling systems which failed to “adequately take consumer guarantees into account”.

A further problem related to the failure of new car dealers to provide consumers with information about their consumer guarantees at point of sale. As anybody who has bought a new car will know, the whole focus of the new car sale process is directed to the manufacturers’ warranty and the opportunity to upgrade that warranty at an additional cost.

The ACCC also draws attention to the lack of an effective independent dispute resolution option for consumers.  Indeed, the only option for most consumers when faced with repeated refusals from a car dealer to provide a refund for a defective new car is to lodge a claim with a consumer claims tribunal, such as the NSW Civil and Administrative Tribunal (NCAT).

The ACCC identified the following action points which it will be focusing on in order to address the deficiencies which it identified in relation to consumer guarantee rights in the new car industry:

ACCC action 3.1

The ACCC will work with manufacturers and dealers to develop a concise and simple explanation of consumer guarantees and their interaction with warranties, which should, as industry best practice, be provided to consumers at the point of sale of a new car.

ACCC action 3.2

To assist consumers better understand their rights when it comes to new car defects and failures, the ACCC will work with other ACL regulators to publish an updated version of Motor vehicle sales & repairs – an industry guide to the Australian Consumer Law (August 2013) to ensure that this publication addresses the issues identified in this study, including specific guidance on criteria for determining a ‘major failure’. Guidance may also be designed for use by businesses, including dealers, regarding their rights and obligations under the ACL.

ACCC action 3.3

Instances of misleading or deceptive conduct, or misrepresentations, in relation to the use of independent repairers or non-OE spare parts will be targeted through action by the ACCC, including enforcement action where appropriate.

It is clear that consumers need greater education about their consumer rights in relation to new cars.  There is a common perception amongst many consumers that consumer guarantees do not apply to new cars due to the value of purchase in dollar terms. Most consumers see consumer guarantees as being limited to lower value purchases of products, such as appliances and consumer electronics. 

The ACCC made the following recommendation in relation to the consumer guarantee issue:

Draft recommendation 3.1

The ACCC supports the amendments proposed by CAANZ in the recent ACL Review to enhance the ACL and address any uncertainties about the application of consumer guarantees. Of particular relevance to issues arising in this study, the ACCC supports proposals 1, 2 and 3 in the final report on the ACL Review:

Proposal 1: Where a good fails to meet the consumer guarantees within a short specified period of time, a consumer is entitled to a refund or replacement without needing to prove a ‘major failure’.

Proposal 2: Clarify that multiple non-major failures can amount to a major failure.

Proposal 3: Enhance disclosure in relation to extended warranties by requiring:

·       agreements for extended warranties to be clear and in writing

·       additional information in writing about what the ACL offers in comparison to the extended warranties

·       a cooling-off period of ten working days (or an unlimited time if the supplier has not met their disclosure obligations) that must be disclosed and in writing.

As is apparent, the above recommendation, if implemented, will have a profound effect on the new car industry.  The first proposal would effectively create an automatic right to a refund or replacement where the new car fails in a short period of time.

Accessing technical information to repair and service new cars

A key finding of the ACCC in relation to the question of access to technical information for repairs and service was a lack of understanding amongst consumers that they could in fact use an independent mechanic rather than the dealer for their repairs and service needs. A further problem was the inability of many independent mechanics to access the necessary technical information and diagnostic tools required to carry out repair and service work.

The ACCC noted the new car industry association agreement implemented in 2014 which was aimed at creating ‘a fair and reasonable competitive market within the car service and repair industry.’ The agreement, which was entitled the Agreement on Access to Service and Repair Information for Motor Vehicles (Heads of Agreement, was a voluntary scheme by which manufacturers would provide independent repairers with access to technical information on commercially fair and reasonable terms.

Despite the existence of this agreement, the ACCC also found that many independent repairers “remained unable to readily access technical information and diagnostic tools from car manufacturers to repair and service new cars.”

In an interested aside the ACCC commented on the increased complexity of modern cars in terms of the lines of computer code required to operate the vehicle. In this respect, the ACCC compared the lines of computer code required to operate a new car with a number of high-tech products, including a F-35 Joint Strike Fighter and a F-22 Raptor Jet. Somewhat surprisingly the ACCC found that the average Ford motor vehicle was well in the lead with 10 million lines of computer code compared to the F-35 which only required 5.7 million lines of code and the F-22 Raptor which only required a paltry 1.7 million lines of code.

A significant finding made by the ACCC was that the voluntary industry agreement has failed to bring about real change in terms of access to technical information. Accordingly, the ACCC concluded that it was now necessary to introduce a mandatory scheme:

Draft recommendation 4.1

A mandatory scheme should be introduced for car manufacturers to share with independent repairers technical information, on commercially fair and reasonable terms. The mandatory scheme should provide independent repairers with access to the same technical information which car manufacturers make available to their authorised dealers and preferred repairer networks.

The mandatory scheme should place an obligation on car manufacturers and other industry participants to achieve the aims and principles set out in the Heads of Agreement (including those in relation to training and reinforcing existing statutory obligations on independent repairers to ensure repairs and servicing are carried out correctly to car manufacturers’ specifications to assure the safety of consumers).

The ACCC then listed the operational matters which would have to be covered by the new mandatory scheme:

Real time access

·           Car manufacturers should make available to independent repairers, in real time, the same digital files and codes, such as software updates and re-initialisation codes, made available to dealers to repair or service new cars.

Coverage

·           Obligations on sharing technical information should apply to all car manufacturers in Australia.

·           Consideration should be given to including options for relevant intermediaries to access technical information from car manufacturers on commercially fair and reasonable terms.

Definitions

·           All relevant terms, conditions and exclusions should be defined in the regulation, for instance, defining diagnostic tools and their relevance to facilitating access to technical information, as well as defining security-related information.

Dispute resolution

·           Any dispute resolution processes should be timely and accessible by all relevant stakeholders.

·           Any dispute resolution processes should be subject to compulsory mediation and binding arbitration by an independent external party.

Governance/consultation

·           Key stakeholders should meet regularly to discuss the rapidly changing nature of repair and service information.

Security-related information and data

·           Similar to the EU or US models, a process for the secure release of security-related technical information should be established or authorised under the mandatory scheme.

Enforcement

·           Appropriate options to enforce the terms of any regulation, if appropriate, should be included (e.g. penalties).

The ACCC’s proposed mandatory scheme will have profound effects for the new car repair and service industry by putting independent repairers on a level playing field with dealer repairers.  

However, for the mandatory scheme to be a success, the ACCC will also have to undertake an extensive education campaign to alert consumers to the fact that they can use independent repairers for their repair and service work without fear of voiding their standard manufacturers’ warranties.

Parts needed to repair and service new cars

In relation to the parts required to repair and service new cars the ACCC found that car manufacturer’s sometimes have legitimate reasons for restricting access, for example where access may compromise security or encourage theft.

However, the ACCC also found that there was a possibility that car manufacturers may be restricting access to parts for the purpose of preventing or hindering competition between authorised repairers and independent repairers. The ACCC also noted a lack of transparency about car manufacturer’s decision about providing access to parts.

The ACCC also found some evidence to suggest that Australian consumers are paying significantly higher prices for parts than consumers in other countries.  For example, the ACCC noted that based on a basket of common crash repair parts it appeared that Australian consumers were paying as much as 3.5 times more than the same parts would cost in the US.

The ACCC’s proposal to remedy this issue was again to create a type of access regime whereby independent repairers would be able to get access to parts on fair and reasonable terms:

Draft recommendation 5.1

OE manufacturer-branded parts and accessories should be generally available to

independent repairers on commercially fair and reasonable terms.

Car manufacturers should develop policies which clearly outline any parts subject to restricted access on security-related grounds. These policies should be publicly available.

The FCAI is well-placed to work with manufacturers to examine whether there is benefit in agreeing a standard definition and detailed classification system for ‘security-related’ parts to provide certainty to parts customers.

Fuel consumption and emissions.

The ACCC’s final significant findings were that:

1.  manufacturers are not always appropriately qualifying fuel consumption and emissions claims, and
2.  many consumers believed that advertised fuel consumption and emissions figures were likely to be attained in real-world driving conditions, when this is not the case.

The ACCC highlighted the discrepancies between test results and real-world driving results by reference to testing currently being conducted by the Australian Automobile Association (AAA).

The AAA’s interim report showed the following alarming results based on tests of 17 motor vehicles:

•  CO exceeded statutory limits in 20 per cent of petrol vehicles tested (two out of ten vehicles) – these cars emitted more than three times the laboratory limit for CO;
•  NOx exceeded statutory limits in 83 per cent of diesel vehicles tested (five out of six vehicles). The highest of these emitted almost nine times the limit for NOx;
•  particulate matter exceeded statutory limits in one out of six vehicles - this car emitted 40 per cent more CO than the laboratory limit;
• 16 out of 17 cars tested had fuel consumption levels that exceeded official laboratory results; and
• fuel consumption was on average 25 per cent higher than the NEDC results.

While the above AAA investigation is not yet complete, the results to date raise many serious concerns about the validity of both fuel consumption and emissions information, as well as basic compliance with statutory limits.  It is apparent that additional regulatory control of both fuel consumption and emissions representations and standards is needed urgently.

The ACCC has made the following two recommendations about this issue.

Draft recommendation 6.1

Changes to the fuel consumption label affixed to new cars should be considered to improve the comparative use of the information supplied. Introducing a star-rating system or annual operating costs may minimise the extent to which consumers interpret an ‘absolute’ fuel consumption/emissions value as equivalent to what they would achieve in real-world driving conditions.

Draft recommendation 6.2

The ACCC supports measures to enhance the quality of information supplied to consumers currently being considered by the Ministerial Forum into Vehicle Emissions, including the replacement of the current fuel consumption and emissions testing regime with the new Worldwide Harmonised Light Vehicles Test Procedure, a more realistic laboratory test, and the introduction of an on-road ‘real driving emissions’ test.

While the ACCC’s approach to this issue is reasonable – namely deferring consideration and resolution of the issues to the Ministerial Forum into Vehicle Emissions – the other key question is which agency will have responsibility for enforcing any new standards.  It is one thing to set a particular standard which car manufacturers must follow, but it is quite a different thing to ensure that these new rules are being monitored and enforced by a competent and well-resourced regulator.

Conclusions

As stated in the introduction, the ACCC’s market study into new car retailing is a watershed moment for the industry.  The new car industry has been much too slow in adapting its business models to new legislative obligations, changing economic conditions and increasing consumer expectations.

It appears highly likely that many of the ACCC’s recommendations will be taken up by government, particularly the recommendation for a mandatory scheme in relation to accessing technical information to repair and service new cars.   This recommendation alone has the potential to significantly impact dealers profit levels, to the extent it facilitates greater competition from independent repairers.  The ACCC’s recommendations in relation to spare parts also threatens to significantly impact car manufacturers profit levels.   

Finally, the new car industry’s ability to defeat or forestall any of the ACCC’s recommendations has been significantly diminished since the announcement of their decision to cease local new car manufacturing.  Gone are the days of the new car industry shakedown when they could gain favourable financial treatment from successive governments on the promise of jobs and growth.  The industry must now brace itself for a rapid and dramatic shake-up which will significantly impact the industry’s bottom line.

 https://www.accc.gov.au/about-us/market-studies/new-car-retailing-industry-market-study

Alphabet in the Soup: Google facing three multi-billion Euro abuse of dominance fines

Introduction

On 27 June 2017, the Commissioner Vestager announced the European Commission’s (EC) decision to fine Google €2.42 billion for abusing its dominance as a search engine.[1]  The EC found that Google had given illegal advantage to its own comparison shopping service over the services provided by its competitors.   While Google has appealed the EC decision to the General Court,[2] it appears that this is not the only competition concern facing Google in the EU.  In addition to announcing the sanction in the comparison shopping service investigation, the EC also stated that it had reached preliminary conclusions that Google has abused its dominant position in relation to the Android operating system and Adsense. 

In this post I will outline the EC’s conclusions in the comparison shopping service investigation, and provide a brief summary of the EC’s other two major Google investigations. 

Comparison shopping service investigation

As stated above, on 27 June 2017 the EC announced that it had decided to fine Google €2.42 billion for abusing its dominance as a search engine. This investigation focused on whether Google had given illegal advantage to its comparison shopping service. 

In addition to paying the fine, Google had 90 days from the date of the EC decision to stop its conduct or face further penalty payments at the rate of 5% of the average daily worldwide turnover of Alphabet, Google’s parent, for each day of non-compliance.  The EC can also backdate these payments to the date that the non-compliance started.   Given Alphabet’s annual turnover in 2016 was approximately $US90 billion, penalty fines for non-compliance could be as high as $US4.5 billion a day.

The EC decided that Google was dominant in each national market for general Internet search throughout the European Economic Area, with a market share of more than 90%.

The EC found that Google advantaged its own comparison shopping site “Google Shopping” (previously known as “Google Product Search” and “Froogle”) by:

• Systematically giving its own product significantly better treatment by giving more prominent placements; and
• Demoting rival comparison shopping services, by providing them with a lower ranking in generic search results.

In other words, Google placed the results from its own Google Shopping comparison site above the search results that Google’s own generic search algorithm determined were the most relevant to the consumer’s search. It also sometimes reserved space on the right hand side of the search results to display its own results.

The EC also noted that Google’s main rivals in comparison shopping were demoted on average to page 4 of the Google search results.  Rival sites were found to have been demoted by at least two different algorithims, which were first used by Google in 2004 and 2011. This resulted in a decline in clicks on these rival sites by more than 90%.

The EC found that Google’s conduct has started in 2008 in Germany and the United Kingdom and then moved to France, Italy, the Netherlands, Spain, the Czech Republic, Austria, Belgium, Denmark, Norway, Poland and Sweden.

The net effect of Google’s conduct was to assist Google Shopping to make significant gains in consumer traffic at the expense of its major rivals. As stated by the EC Google’s conduct resulted in the following traffic growth of its comparison shopping service:

• United Kingdom – 45-fold increase
• Germany – 35-fold increase
• Netherlands – 17-fold increase
• Spain – 17-fold increase
• Italy – 14-fold increase

As concluded by the EC:

…Google’s strategy for its comparison shopping service wasn’t just about attracting customers. It wasn’t just about making its product better than those of its rivals. Instead, Google has abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.

What Google has done is illegal under EC antitrust laws. It has denied other companies the chance to compete on the merits and to innovate. And most importantly, it has denied European consumers the benefits of competition, genuine choice of service and innovation.

Android investigation

The EC summarised its Android operating system investigation as follows;

The Commission is concerned that Google has stifled choice and innovation in a range of mobile apps and services by pursuing an overall strategy on mobile devices to protect and expand its dominant position in general internet search.

The EU has claimed that Google is manipulating handset-makers and telcommunications companies by forcing them to agree to exclusive deals to pre-install key Google apps, such as Google Search and Google Play.

Google has also been accused of paying handset-makers and telecommunications companies to pre-install Google Search, and preventing the sale of handsets using non-Google versions of Android through “anti-fragmentation” agreements.

Most significantly the EC has announced that it has reached a preliminary conclusion that Google’s conduct in relation to the Android operating systems constitutes a breach of its dominant position in the relevant market. 

Adsense investigation

Finally, the EC’s Adsense investigation relates to allegations that Google has reduced choice by preventing third-party websites from sourcing search ads from Google’s competitors. 

As stated by the EC in its Statement of Objections:

Google places search ads directly on the Google search website but also as an intermediary on third party websites through its "AdSense for Search" platform ("search advertising intermediation"). These include websites of online retailers, telecoms operators and newspapers. The websites offer a search box that allows users to search for information. Whenever a user enters a search query, in addition to the search results, also search ads are displayed. If the user clicks on the search ad, both Google and the third party receive a commission.

The EC’s concerns centre on Google’s agreements with a number of large third parties for whom Google provides search advertising intermediation services, also known as Direct Partners.

The EC alleges that Google has breached antitrust rules by imposing the following conditions:

• Exclusivity: requiring third parties not to source search ads from Google's competitors.
• Premium placement of a minimum number of Google search ads: requiring third parties to take a minimum number of search ads from Google and reserve the most prominent space on their search results pages to Google search ads. In addition, competing search ads cannot be placed above or next to Google search ads.
• Right to authorise competing ads: requiring third parties to obtain Google's approval before making any change to the display of competing search ads.

The EC has claimed that the above practices have been in place for ten years.

The EC stated that Google’s actions in relation to Adsense:

...have artificially reduced choice and stifled innovation in the market throughout the period. They have artificially reduced the opportunities for Google's competitors on this commercially important market, and therefore the ability of third party websites to invest in providing consumers with choice and innovative services.

Again, the EC has formed the preliminary view that Google has abused its dominant position in order to prevented existing and potential competitors, including other search providers and online advertising platforms, from entering and growing in this commercially important area.

Conclusions

It seems inevitable that the EC will be imposing two further significant antitrust fines against Google in the near future in relation to the Android and Adsense investigations. There is also a strong likelihood that the fines for these investigations will be significantly larger than the fine imposed in relation to the comparison shopping investigation.

While comparison shopping services are an important part of Google’s business, it is arguable that the competitive impact of Google’s alleged conduct in the comparison shopping area is not as significant as the impact of its alleged conduct in relation to Android operating systems and the Adsense product.  It is also arguable that the EC will see Google’s alleged conduct in relation to Android operating systems and Adsense as a much more central part of its overall business strategy and revenue streams.

While there has been some speculation that the EC investigations are a precursor to a broader plan to ultimately break up Google into a number of smaller companies, this speculation is fanciful. [3] Not only doesn’t the EC had the same monopoly break up powers that exist in the US, but the US Department of Justice has shown very little interest in even investigating Google’s conduct, much less in taking steps to force its breakup.

The real question is whether Alphabet may itself decide to break up Google into a number of separate companies at some time in the future.  However, what is clear is that any decision by Alphabet to go down this path will not be dictated by a fear of possible antitrust breakup, as was the case with the breakup of AT&T in the early 1980's.

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[1] http://europa.eu/rapid/press-release_MEMO-17-1785_en.htm

[2] https://www.theverge.com/2017/9/11/16291482/google-alphabet-eu-fine-antitrust-appeal

[3] https://qz.com/798791/these-are-the-eus-reported-plans-to-break-up-googles-goog-monopoly-powers; http://www.latimes.com/opinion/op-ed/la-oe-strauss-digital-robber-barons-break-up-monopolies-20160630-snap-story.html; https://www.nytimes.com/2017/04/22/opinion/sunday/is-it-time-to-break-up-google.html