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Prosecutions for the S46

The first prosecutions under section 46 will occur before the end of the year. This was the promise made by the ACCC Chairman last week in his address to the Law Council of Australia.

Last year, the competition regulator lost their appeal against pharmaceutical company Pfizer’s alleged misuse of its market position after the Federal Court ruled in favour of the entity.

At the time, ACCC Chairman Rod Simms said, “The ACCC brought this appeal because it was concerned Pfizer’s use of its market position as supplier of the top-selling branded atorvastatin, immediately before generic products were able to enter the market, harmed the competitive process and, therefore, consumers.”

However, even after losing their appeal, Simms said he was committed to pursuing anti-competitive conduct and the misuse of market power.

Section 46 is one of the recommendations to have come out of the Harper Review, which recommended the original section 46 test requiring companies to ‘tactually take advantage’ be amended. The revised legislation has deleted the ‘take advantage’ terminology.

Back in 2017, there was much opposition to the market power test. Simms highlighted this also, noting the irony that many of the same detractors have since called for the competition regulator to take action against Amazon, which is starting to take a more targeted approach to the Australian market.

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