Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851

Prysmian contravened s 45(2) of the Act by making/arriving at the Snowy Hydro Project Agreement and issuing price guidance pursuant to a cartel arrangement. Declarations and pecuniary penalty of $3,500,000 are appropriate. No injunction warranted given elapsed time, lack of repeated conduct, and statutory prohibition already in place. Parity principle requires considering penalty imposed on Viscas, but differences justify higher penalty for Prysmian.

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Civil / Post Trial Judgment (relief, Penalties, Costs)
Outcome
Declarations of contravening conduct made; injunction refused; pecuniary penalty of $3,500,000 imposed on Prysmian; costs awarded as specified.
Legal Topics
['cartel Conduct' 'market Sharing' 'price Fixing' 'declarations' 'pecuniary Penalty' 'costs' 'parity Principle']
['competition Law' 'commercial Law'] ['cartel Conduct' 'market Sharing' 'price Fixing' 'declarations' 'pecuniary Penalty' 'costs' 'parity Principle']

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Procedural Posture

Civil / Post Trial Judgment (relief, Penalties, Costs)

Legal Issues

  1. 1 ['Whether the respondent contravened s 45(2) of the Competition and Consumer Act 2010 as alleged' 'Appropriate relief of declarations, injunction, and pecuniary penalties for contravening conduct' 'Whether the conduct was a single course of conduct for penalty purposes' 'Application of the parity principle in penalty assessment' 'Appropriateness of costs orders including indemnity costs against the applicant']

Ratio Decidendi

Prysmian contravened s 45(2) of the Act by making/arriving at the Snowy Hydro Project Agreement and issuing price guidance pursuant to a cartel arrangement. Declarations and pecuniary penalty of $3,500,000 are appropriate. No injunction warranted given elapsed time, lack of repeated conduct, and statutory prohibition already in place. Parity principle requires considering penalty imposed on Viscas, but differences justify higher penalty for Prysmian.

Court Disposition

Declarations of contravening conduct made; injunction refused; pecuniary penalty of $3,500,000 imposed on Prysmian; costs awarded as specified.

Orders

  • ['Prysmian pay to the Commonwealth of Australia, within 28 days, a pecuniary penalty of $3,500,000 pursuant to s 76.' "Prysmian pay ACCC's costs of and incidental to the proceeding against it as taxed or agreed, save existing costs orders and penalty hearing costs." "ACCC pay Nexans SA's costs of the proceeding on a...