Australian Competition and Consumer Commission v Société Air France [2009] FCA 341

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Société Air France [2009] FCA 341

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SOCIÉTÉ AIR FRANCE (ARBN 000 489 074) and KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)

NSD 105 of 2009

LINDGREN J

14 april 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 105 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: SOCIÉTÉ AIR FRANCE (ARBN 000 489 074)

First Respondent

KONINKLIJKE LUCHTVAART MAATSCHAPPIJ NV (ARBN 000 067 916)

Second Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 16 February 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Each respondent pay the Commonwealth of Australia, within 14 days of this order, a pecuniary penalty in the sum of $3 million in respect of its contraventions of section 45(2)(b)(ii) of the Trade Practices Act 1974 (the Act) in that: 1.1. in or around April 2002, it arrived at an understanding with Lufthansa Cargo Aktiengesellschaft (Lufthansa), a competitor of the respondents 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 45(2)(a)(ii) of the Act; 1.2. it gave effect to the said provision of the understanding between April 2002 and October 2005 by, inter alia: 1.2.1. increasing or decreasing in that period the amount of the fuel surcharge it imposed per kilogram of cargo in accordance with the said understanding; and 1.2.2. applying the fuel surcharge on its international air cargo services, including on certain international cargo routes involving Australia. 2. Each 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 respondents pay the applicant within 14 days of this order a contribution towards its total costs of and incidental to these proceedings in a total 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.