News

ACCC sets no great store by incumbency power 15.11.19

The Australian Competition and Consumer Commission (ACCC) has decided not to oppose the merger between ANZ Terminals and GrainCorp Liquid Terminals, two providers of port-side bulk liquid storage services for base oils, chemicals and edible oils/fats in South Australia, Victoria and New South Wales, subject to divestments. An RBB team led by Patrick Smith, and assisted by Chris Whelan, Meltem Bayramli and Jackson McDonough produced a report that was submitted to the ACCC and participated in meetings with the ACCC. Despite the merger combining the two largest providers of non-fuel bulk liquid storage in the Port of Melbourne, the ACCC found that “a critical driver of competition was not incumbency, but the ability to expand and win contracts based on new tanks being built” according to commissioner Stephen Ridgeway. ANZT agreed to divest its Osborne facility in South Australia and not to lease any further land at Port of Melbourne without ACCC approval, and GrainCorp’s bulk liquid facility at Port Kembla in New South Wales was excluded from the transaction. RBB was instructed by Ashurst, solicitors acting for ANZ Terminals, and Gilbert + Tobin, solicitors acting for GrainCorp Liquid Terminals.

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The EC clears Telia’s acquisition of Bonnier Broadcasting (a media powerhouse in the Nordics) 13.11.19

On 12 November, the European Commission has approved the acquisition of Bonnier Broadcasting by Telia Company. The Commission launched an in-depth investigation focussing on the merging companies’ activities in the wholesale supply and retail distribution of TV channels in Finland and Sweden. The Commission was concerned about potential input foreclosure that could weaken rival TV distributors, even via Over-The-Top (OTT) distribution. To address some of these concerns the Parties offered remedies in phase I, but these were deemed sufficient only during the in-depth investigation. RBB Economics advised both merging companies during the proceedings alongside Mannheim Swartling and Roschier.

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ACCC finds no chilling effect on competition 28.10.19

On 23 October 2019 the Australian Competition and Consumer Commission (ACCC) announced that it would not oppose the proposed acquisition of the AB Oxford Cold Storage Company by Emergent Cold. The Parties overlap in the provision of cold storage services in the state of Victoria and, following the proposed acquisition, will account for 35-40% of third party cold storage capacity in Victoria. In its Statement of Issues the ACCC raised concerns that the proposed acquisition would reduce the number of large third party cold storage providers in Victoria from four to three and would remove Emergent Cold’s closest competitor. However, after considering further information the ACCC ultimately found that the Parties are likely to face close competition from a range of large and small alternative suppliers, as well as being constrained by the possibility of some larger customers self-supplying their cold storage requirements. The ACCC’s media release can be found here. RBB Economics was instructed by Clayton Utz, solicitors acting for Emergent Cold.

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HSBC Euribor fine overturned by General Court 27.09.19

On 24 September 2019, the General Court handed down its judgment in HSBC Holdings v Commission, allowing part of HSBC’s appeal and annulling the penalty imposed on HSBC. In 2016, the Commission found that HSBC and six other banks had infringed Article 101(1) TFEU, through an attempt to manipulate the level of the Euro Interbank Offered Rate (Euribor) and engaging in unrelated exchanges of information in relation to Euro interest rate derivatives (EIRDs). The Commission fined HSBC over €33 million. The Court upheld the Commission’s conclusions that the manipulation and information exchanges on mids are anticompetitive, but it agreed with HSBC that two exchanges of information on trading positions did not have the object of restricting competition. The Court also set aside the fine imposed on HSBC due to insufficient reasoning, in particular because the concept of “value of sales” does not have an immediate interpretation in EIRD markets. An RBB team led by Francesco Rosati and assisted by Chris Whelan and Christian Ehmer advised HSBC, and Francesco also provided expert testimony in the General Court. RBB worked alongside law firm Norton Rose Fulbright and barristers Kelyn Bacon QC and David Bailey. The judgement is available here.

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Vodafone Hutchison Australia / TPG – RBB expert testifies in Australian Federal Court 26.09.19

RBB has provided expert testimony in the Australian Federal Court hearings into the proposed acquisition by Vodafone Hutchison Australia of TPG. RBB’s Patrick Smith, assisted by George Siolis, Chris Hart and Jack Mays prepared an expert report to address questions about the relevant economic issues and the likely future state of competition in the retail mobile market with and without the proposed acquisition, and Patrick testified as one of several economic experts in a concurrent evidence session during the trial in the Federal Court. RBB was instructed by the AGS, solicitors acting for the ACCC.

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