Global collaboration among competition regulators crucial keynote address

Check against delivery

Introduction

I am very pleased to be able to attend this important event and the ICN Conference itself in person relatively early in my tenure as Chair of the Australian Competition and Consumer Commission.

It is so energising to be able to meet and engage with you all face to face as we discuss the complex and evolving challenges ahead of us. I am well aware of the importance of the ICN to its member agencies including the ACCC, which was an early member of this network. I see this event and the conference as valuable opportunities to secure and build on our long-standing relationships within the ICN.

My involvement with competition regulation began when I studied antitrust law,  financial services and payment systems for a Masters of Law at UC Berkeley some thirty years ago. My work as a competition lawyer in the subsequent decades gave me experience looking at competition issues in many sectors, across a range of international jurisdictions.

Today I will speak about the importance of international cooperation between competition agencies and then turn to 3 areas of the ACCC’s work in which this cooperation is proving critical:

• digital platforms
• mergers, and finally
• our recently announced enforcement priorities, which include a focus on anti-competitive conduct in global supply chains.

I should note that Australia will have a Federal election on 21 May. In the lead up to the election, government authorities need to be careful not to appear to criticise or support the policies of one side over the other. While I’m able to discuss issues, I will be avoiding advocating for any changes to our laws until the outcome of the election is known.

Partnerships and international collaboration

The ACCC sees collaboration with our international counterparts as a key component of our effectiveness as a regulator. This was the strong view and experience of my predecessor, Rod Sims, and the Chairs before him, and I want to assure you that our focus on this collaboration remains as strong as ever.

Competition agencies worldwide benefit from international enforcement cooperation because it reduces duplicative efforts to assess the similar conduct or proposed multi jurisdictional transactions and can lead to more efficient investigations. Frequently it also benefits the business community by helping to reduce the regulatory burden on businesses operating internationally.

One exciting example of this cooperation is the ICN Intersection Project, in which the ACCC is actively involved. This project seeks to increase the understanding of how ICN member agencies can share knowledge and expertise on issues which lie at the intersection of competition, consumer and privacy law enforcement. The rapid changes in technology and data capture and analysis increasingly makes these issues more complex.

The benefits of cooperation were recently displayed at the G7 Enforcers Summit in December, in which the ACCC participated as a guest nation.

The participating agencies identified the challenges posed by digital markets and big tech as among the most important issues facing governments and competition authorities around the world. The summit provided an opportunity to consider how best to collaborate and use our skills, knowledge and resources to deal with these challenges.

An important outcome of the summit was the G7 Compendium of approaches to improving competition in digital markets. The compendium provides an overview of how different authorities work to promote competition in digital markets and is an informative and useful tool for national governments, policy makers, and industry participants, as well as counterpart competition authorities and regulators grappling with similar issues. 

These are just a few examples of very explicit international collaboration activities by the ACCC. In my role as Chair I will continue the momentum of this important engagement, including when Australia holds the presidency of the International Consumer Protection and Enforcement Network (ICPEN) in 2022-23.

I will now turn to some key current work areas of the ACCC, including a few observations on how our international partnerships enhance and inform that work.

Digital platforms

We’re all aware of the significant growth and impact large digital platforms have had on our economies, and the benefits they have brought to businesses and individuals. However, over recent years ICN member agencies have produced a substantial body of research on competition harms in digital markets, especially markets where a few large digital platforms hold powerful positions and act as gatekeepers between businesses and consumers.

The ACCC digital platform reports have identified competition and consumer concerns in digital sectors such as search, social media, app marketplaces, display advertising, search advertising and the ad tech supply chain. Just last week we released our report into online retail marketplaces, which identified a range of potential concerns about how these marketplaces operate.

Like many of our ICN colleagues, the ACCC has identified economies of scale, network effects and vertical integration as common characteristics of digital platform services that can contribute to market power. Along with the expansion of digital ecosystems, the competitive advantages arising from superior access to user data and a lack of transparency all create an environment where digital platforms may anti-competitively exercise dominance across multiple services. As competition agencies across the globe are well-aware this can involve a range of anti-competitive practices, such as self-preferencing, tying, bundling and refusals to deal. Such digital platforms are also able to exploit their gatekeeper position, imposing terms and conditions on business users that they may not be able to achieve in the absence of their market power.

Furthermore, many competition agencies, including the ACCC, have observed that a number of large digital platforms have extended their market position through their acquisition strategies. For example, the largest platform firms Google, Meta, Apple, Microsoft and Amazon have collectively made hundreds of acquisitions over the last five years. These acquisitions have prompted concerns as to entrenchment of market power of their core services, raising barriers to entry, and expansion of their ecosystems, potentially hampering the capacity for vigorous competition.

The ACCC is increasingly concerned that enforcement action alone cannot address the systemic competition and consumer concerns identified in digital platform markets.

Investigation and court proceedings are lengthy and necessarily retrospective, seeking to address harms after they have occurred. Further, to successfully prosecute a case, we often must narrow allegations and ignore broader concerns with conduct. This is particularly problematic in digital platform cases where market power is multi-faceted, needs to be assessed across multiple markets and produces consumer as well as competition harms

Similar to many of our ICN colleagues, the ACCC is considering whether there is a need for further regulatory tools to address competition issues in digital platforms markets.

In February 2020 we released a Discussion Paper commencing consultation on options for digital platform specific law reform, including so-called ‘ex ante’ regulation, which would complement enforcement of our existing competition laws. This topic will be the subject of a key report we will provide to the Australian Government in September this year.

Importantly, given that the ACCC is both a competition and consumer agency and we see consumer protection and competition law working hand-in-hand, the reforms considered in that report will address consumer protection as well as competition concerns.

As you’re all aware, jurisdictions like the European Union, the United Kingdom and our host country, Germany, have taken the lead in developing, and in some cases already legislating ambitious regulatory reforms targeted at digital platforms’ market power. Japan and South Korea have also targeted specific behaviours to improve fairness and transparency and there are a number of proposals before the US Senate and Congress.

While the ACCC is taking inspiration from these approaches, we are proud of the leading role Australia played through our 2019 Digital Platforms Inquiry and also in developing the news media bargaining code to address the significant bargaining power imbalance between digital platforms and news media businesses.

Under this bargaining code, legislated in Australia in February 2021, digital platforms have three months to negotiate fair payment for news content with news media businesses, before a binding ‘final offer’ arbitration process can be initiated. While no digital platforms have yet been designated under this code, its existence and the threat of designation have led both Google and Meta to voluntarily negotiate numerous and substantial commercial agreements with a large number of small, medium and substantial Australian news media businesses, helping the sustainability of this critical sector.

Mergers

A significant proportion of this surge involves global mergers. Many of these global transactions appear increasingly complex in their transaction structures, the competition issues involved and also in some of the remedies being offered.

I had been aware of the cooperation between competition agencies in my previous role in private practice advising merger parties on global deals. I am now seeing this cooperation first-hand, and the benefits that come from these close working relationships are very clear.

The Cargotec-Konecranes merger proposal was a recent demonstration of this. While the ACCC had not reached a final decision when this merger was abandoned by the parties, we had the benefit of collaborating closely with the CMA, DOJ, EC and NZCC and sharing information which helped inform our analysis and the direction of our review.

I have noted recent commentary about suggested ‘divergence’ between various agencies. But cooperation does not mean that agencies will necessarily reach the same conclusions on competition issues or on the acceptability of remedies, as was the case in Cargotec-Konecranes. There will be many differences particularly in the applicable laws, the impact of the transaction on relevant domestic markets and the timing of the review. Ultimately, each agency must reach its own decision based on its circumstances.

While we at the ACCC had not reached a final view, we continued to have concerns that in the context of Australian market conditions the remedy proposal presented considerable uncertainty in terms of its effectiveness. Whether we could have overcome this uncertainty with further information gathering and negotiation is unknown.

It should come as no surprise to merger parties that competition agencies will push back against mergers and remedies that present an unacceptable level of uncertainty, as was set out in the Joint Statement published in 2021 by the ACCC with the UK’s Competition and Markets Authority and Germany’s Bundeskartellamt.

An emerging trend in global mergers is merger parties appearing to take a strategic approach to seeking clearances across different jurisdictions. The absence of a mandatory notification requirement in Australia means that we are often approached comparatively late. It is clear that some merger parties are focusing their clearance efforts on a particular jurisdiction and then appear to be marking time until they secure clearance in that key jurisdiction. In some cases there may be legitimate reasons for this approach but in others there may not be.

My observation is that this approach in most cases simply slows the entire process down. As recent evidence shows, agencies make independent decisions and so can reach different conclusions even if they have engaged constructively with each other during their processes.

Australia is one of a minority of countries that has not moved to a mandatory-suspensory notification regime. We rely on the willing compliance of merger parties to advise us of proposed mergers and provide us with sufficient time and information to conduct our review. The ACCC is increasingly facing practical challenges with merger parties pushing the boundaries of the informal system. Such concerns and challenges have prompted consideration of whether our regime remains fit for purpose.

Last year, the ACCC outlined some proposals for merger law reform and started a discussion as to whether there is a need for reform, including moving away from the voluntary informal merger regime, and potential changes to the test. The ACCC will continue to consider the feedback we have received to date on those proposals. Ultimately it is a matter for the Australian Government to progress any reforms.

Our 2022-23 enforcement priorities

The ACCC recently published our compliance and enforcement priorities for 2022-23, and I wanted to touch on a few that are most relevant to this theme of global cooperation between agencies. The ACCC will continue to focus on evolving competition issues in the key dynamic markets of digital platforms and financial services and of course the ACCC will always prioritise action in relation to cartels and anti-competitive conduct. This included priorities of particular relevance to this audience: competition concerns seemingly exacerbated by the market conditions of the pandemic, and financial system and payment services anti-competitive conduct.

Global supply chains

The importance of effective and competitive supply chains has been more evident than ever during the pandemic.

The effects of COVID-related staff shortages, congestion at ports and transport bottlenecks and interruptions have disrupted the global supply of many retail goods from fresh food and groceries to critical equipment and medications and affected us all. Australia’s position as an island continent has meant we have felt these effects acutely. Unfortunately, such disruptions have led to higher freight rates, which of course ultimately means higher prices for consumers.

This disruption, in particular, has highlighted the significant advantages of international cooperation. The ACCC recently formed a working group with our fellow competition authorities in the US, the UK, Canada and New Zealand to share intelligence and work together to detect any attempts by businesses to use the pandemic as a veil for illegal conduct, such as collusion, in our global supply chains. The ACCC hopes in this initiative and in collaborations with other agencies to contribute to actions to enhance the opportunity for recovery and growth, while maintaining competitive conditions in affected sectors.

Financial services

The ACCC continues to prioritise competition issues in the financial sector. This year we will be concentrating on issues relating to payment systems and services.

As in many other jurisdictions, Australian consumers have been increasingly paying for goods or services with cards, and COVID-19 only accelerated the shift from cash to card payments, whether online or in person at point of sale. The importance of vigorous and effective competition in card payment markets is therefore vital to both businesses and consumers alike.

One of the core issues we observe affecting competition in card payment markets is ‘least cost routing’ (LCR). This enables merchants to choose the provider of processing for their debit card transactions. In Australia the choice is between an international card scheme or the domestic debit card payment network, eftpos which is owned by certain Australian banks and retailers. The significance of this issue to competition in card payment markets cannot be overstated, given debit card transactions now make up around 75 percent of all card payments in Australia and eftpos processing services have historically been more keenly priced for merchants than the services provided by international card schemes.

In March 2021, we accepted a court enforceable undertaking from Visa to address our concerns that Visa may have limited competition in relation to debit card acceptance through its dealings with large merchants. We are continuing to investigate similar allegations of anti-competitive conduct designed to limit the take-up of ‘least cost routing’ by market participants.

The proportion of payments made through digital wallets on mobile devices has also increased during COVID and we are looking at several competition issues in relation to these services.

In particular, we are considering whether there are competition concerns associated with Apple’s practice of restricting third party access to near field communication technology on its mobile devices, and the terms it imposes for use of Apple Pay by third parties. We continue to benefit from international engagement on this issue, which of course has implications beyond Australia’s borders.

Conclusion

Regulators across the world have been highly conscious of the impact of COVID-19 on consumers, businesses and markets and, where appropriate, factored these circumstances into their consideration of competition matters in the short term to assist business to remain viable in the longer term.

Maintaining competition in the long term will benefit the economy and consumers. As much as possible, we seek to ensure disruptions to affected markets are temporary and limited to what is necessary. We will also ensure regulatory action contributes to recovery, growth and promoting competition.

Each competition regulator will have their own individual approach to resolving issues in their local jurisdictions, but support between global partners only strengthens our ability to achieve a satisfactory result.