Australian Competition and Consumer Commission v Martinair Holland NV [2009] FCA 340

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Martinair Holland NV [2009] FCA 340

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MARTINAIR HOLLAND NV (ARBN 069 862 862)

NSD 104 of 2009

LINDGREN J

14 April 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 104 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: MARTINAIR HOLLAND NV (ARBN 069 862 862)

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 16 February 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent pay the Commonwealth of Australia within 14 days of this order a pecuniary penalty in the sum of $5 million in respect of contraventions of section 45(2)(b)(ii) of the Trade Practices Act 1974 (the Act) in that: 1.1. by no later than early 2003, the respondent arrived at an understanding with Cargolux Airlines International SA (Cargolux) and Koninklijke Luchtvaart Maatschappij NV (KLM), competitors of the respondent for the supply of services for the international carriage of air cargo, which understanding contained a provision which had the purpose and likely effect of fixing or maintaining a component of the price charged by each of them for the said services, called a fuel surcharge, and is thereby deemed, pursuant to section 45A of the Act, to substantially lessen competition within the meaning of section 45(2)(a)(ii) of the Act; 1.2. the respondent gave effect to the said provision of the understanding between early 2003 and February 2006 by, inter alia: 1.2.1. exchanging information with KLM and Cargolux in relation to the fuel surcharge that each airline intended to impose in accordance with the understanding; and 1.2.2. increasing or decreasing its fuel surcharge levels charged to customers in accordance with the understanding. 2. The respondent be restrained, for a period of five years from the date of this order from making, arriving at, or giving effect to, any contract, arrangement or understanding with any of its competitors for the supply of the services of the carriage of international air cargo, containing provisions which have the effect of fixing, controlling or maintaining the price or any part of the price at which it or any of them will supply those services in competition with each other unless: 2.1. the said contract, arrangement or understanding does not involve or relate to the carriage of goods to or from Australia; 2.2. the said contract, arrangement or understanding is necessary for the purpose of interlining between two or more carriers in the course of supplying services of the carriage of international air cargo; or 2.3. the respondent is specifically authorised to do so under section 88 of the Act. 3. The respondent pay the applicant within 14 days of this order a contribution towards its costs of and incidental to these proceedings in the sum of $100,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA