ACCC backs Harper's price signalling recommendation

The Australian Competition and Consumer Commission has backed the recommendation of the Competition Policy Review that the prohibition on price signalling be scrapped and replaced by a more general "concerted practices" provision.

The price signalling rule, which was introduced in 2012, applies only to banks. It prohibits banks disclosing prices to competitors in private, where doing so is not in the ordinary course of business. It also prohibits public or private disclosure that is for the purpose of "substantially lessening competition."

The Competition Policy (Harper) Review said: "The panel considers that, in their current form, the prohibitions against price signalling in the Competition and Consumer Act do not strike the right balance in distinguishing between anti-competitive behaviour and pro-competitive conduct.

"Being confined to a single industry, the current provisions are also inconsistent with the principle that the CCA should apply to all business generally."

In its submission to Treasury in response to the review, the ACCC said it welcomed the recommendation and agreed that a wider prohibition on concerted practices "should lead to a more competitive marketplace by raising the standard of business dealings."

There are concerted practices provisions prohibiting anti-competitive disclosure of information in US, Canadian, UK and EU law. What it means is that conduct that is "jointly arranged or carried out or co-ordinated" would be prohibited if it could be shown that the concerted practice had the purpose, effect or likely effect of substantially lessening competition.

The ACCC also said it supported Harper's recommendation that concerted practices not be defined in CCA. It said that, if the recommendation were implemented, it would prefer to work with the industry to develop guidelines and rely on case law rather than the wording of the statute.

Harper said most submissions argued for repeal, modification or extension of the rule.

The Review said: "Public disclosure of prices is a common business practice by which businesses communicate with a broad customer base and help consumers make informed choices. For this reason, the current public disclosure price signalling laws may over-capture pro-competitive or benign conduct.

"The difficulties in defining the circumstances in which disclosure of price information is pro-competitive or benign, and the circumstances in which it is likely to be harmful to competition, have resulted in a complex set of provisions."