Australian Competition & Consumer Commission v Roche Vitamins Australia Pty Ltd [2001] FCA 150

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Roche Vitamins Australia Pty Ltd [2001] FCA 150

TRADE PRACTICES – civil penalties for contravention of Part IV of Trade Practices Act 1974 (Cth) – anti-competitive arrangements made by overseas parent companies implemented in Australia by their Australian subsidiaries – factors relevant to level of civil penalty appropriate to be imposed. AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ROCHE VITAMINS AUSTRALIA PTY LIMITED (ACN 000 991 793) N 1009 OF 2000 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BASF AUSTRALIA LIMITED (ACN 008 437 867) N 1140 OF 2000 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AVENTIS ANIMAL NUTRITION PTY LIMITED (FORMERLY KNOWN AS RHONE-POULENC ANIMAL NUTRITION PTY LIMITED) (ACN 009 718 245) N 1175 OF 2000 LINDGREN J 28 FEBRUARY 2001 SYDNEY (Delivered by video-link in Perth)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1009 OF 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: ROCHE VITAMINS AUSTRALIA PTY LIMITED

(ACN 000 991 793)

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 28 FEBRUARY 2001

WHERE MADE: SYDNEY (Delivered by video-link in Perth)

THE COURT DECLARES THAT: 1. The respondent, in making and giving effect to the arrangements referred to in paragraphs 27 and 28 of the Statement of Agreed Facts filed in the proceeding, contravened section 45 of the Trade Practices Act 1974 (Cth).

THE COURT FINDS THAT: 2. For the purposes of section 83 of the Trade Practices Act 1974 (Cth), the relevant facts in the proceeding are those set out in the Statement of Agreed Facts filed in the proceeding.

THE COURT ORDERS BY CONSENT THAT: 3. The respondent (whether by its directors, servants, agents or otherwise) be restrained for a period of four years from: (a) making or arriving at; (b) giving effect to; or (c) attempting to make, arrive at or give effect to – any contract, arrangement or understanding between manufacturers or suppliers of vitamins and other nutritional additives used in animal feeds and of pre-mix containing such vitamins and additives ("animal vitamins and pre-mix") that contains a provision that has: (d) the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of: (i) the prices of tenders for animal vitamins and pre-mix submitted by such manufacturers or suppliers in Australia; or (ii) the prices otherwise charged by such manufacturers or suppliers for animal vitamins and pre-mix in Australia; (e) the purpose of preventing, restricting or limiting the supply of animal vitamins and pre-mix to particular purchasers or potential purchasers of such products in Australia, including by allocating to particular manufacturers or suppliers of such products the business, either wholly or in part, of supplying the products to particular purchasers of the products in Australia. 4. The respondent (whether by its directors, servants, agents or otherwise) be restrained for a period of four years from organising, attending or otherwise participating in, any meeting of representatives of manufacturers or suppliers of animal vitamins and pre-mix (being competitors of the respondent or a related corporation of the respondent) or any meeting attended by such representatives, being a meeting held for the purpose, or for purposes that include the substantial purpose of: (a) fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of: (i) the prices of tenders for animal vitamins and pre-mix submitted by such manufacturers or suppliers in Australia; or (ii) the prices otherwise charged by such suppliers for animal vitamins and pre-mix in Australia; (b) allocating to particular manufacturers or suppliers of animal vitamins and pre-mix the business, whether wholly or in part, of supplying such products to particular purchasers of the products in Australia.