Clifford Chance

The implications for Australian companies navigating the new section 46 misuse of market power test after the European court of justice decision in intel

20 September 2017

General Counsel and boards of large Australian companies may have been considering the practical implications of the new section 46 "effects test" in the Competition & Consumer Act 2010 (Cth) (CCA).

In this briefing we consider the implications of the amendments to section 46 in light of the Intel Decision and consider how large Australian companies and their boards should closely analyse their conduct and document their decision making process so as to ensure that both the Australian Competition and Consumer Commission (ACCC) and the Australian Courts, as with the Intel Decision, will need to closely examine the actual effect of their conduct in the market.  Even if large Australian companies may, when the new section 46 takes effect, practically be argued to be under a "special responsibility" as in Europe because of their market position, they can still be well positioned to successfully implement, and if required, defend their legitimate business conduct.

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