Government repeals price signalling ban
Exposure draft legislation issued yesterday amending the Competition and Consumer Act to incorporate recommendations of the 2014 Harper Review includes the repeal of the price signalling provisions of the Act.The prohibition on price signalling was introduced in 2012 and 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 Review, which Deloitte partner Ian Harper chaired, said that anti-competitive price signalling did not need a separate division in the Act and could be addressed by extending section 45 to cover "concerted practices that have the purpose, effect or likely effect of substantially lessening competition." The Harper Review said: "The panel considers that, in their current form, the prohibitions against price signalling in the CCA 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."The Government has adopted Harper's recommendation that the Act include a more general "concerted practices" provision.The explanatory memorandum accompanying the draft bill says: "International jurisprudence suggests that co-ordination between competitors, where co-operation between firms is substituted for the uncertainties and risks of independent competition, is potentially a concerted practice."Such conduct would be prohibited "if it can be shown that the concerted practice has the purpose, effect or likely effect of substantially lessening competition."