unlawful if its purpose or likely effect is to substantially lessen competition in the market or the market. supplier’s buyer’s CASE: ACCC v Fila Sport Ocenia Pty Ltd Outline: Fila is the Australian subsidiary of Fila Holdings Spa, one of the largest sportswear suppliers in the world AFL owned rights to apparel for clubs: On Field Jumpers etc – Off-field Tracksuits etc – Fila had exclusive rights to apparel for 5 teams ‘on-field’ They implemented selective distribution policy Only supply their apparel to stores that didn’t stock ‘Team who was a competitor. Spirit’ apparel, Evidence that was severely disadvantaged by this. ‘Team Spirit’ Decision: Ruled that Fila was fully aware that actions would breach TPA. Fila was warned number of times and only ceased when ACCC stepped in. Fined them $3 Mil. CASE: ACCC v Baxter Healthcare Pty Ltd Outline: Baxter is a manufacturer and supplier of sterile fluids and peritoneal dialysis products (‘PD’) It has dominated market shares for over six years and PD products are highly valuable customers were the various state governments Baxter’s Products were sold individually at very high prices, and lower if brought in groups Purpose of this rival bidders for PD products from agreement ‘to prevent Because of being able to put forward bids that were realistically competitive’. this state governments had incentives to enter into exclusive bundling contracts with Baxter Decision: Baxter was immune because TPA does not or government cover ‘the crown agreements’. Did consider that s46 and s47 had been breached but couldn’t fine them. Important: If the supplier is only supplying one product then there will be no breach of s 47 because: it will not be possible to conclude that the supplier has supplied a product on the buyer not acquire a good or service from a competitor of condition that the supplier a manufacturer of yachts is not breaching s 47 by refusing to supply yachts without masts. Yacht is a composite product made up of the hull, the keel and the mast Minimum quantities agreements Buyer is required to take a minimum quantity of a product. if a supplier requires a buyer to purchase 100 units of a particular product
unlawful if its purpose or likely effect is to substantially lessen competition in the supplier’s market or the buyer’s market. CASE: ACCC v Fila Sport Ocenia Pty Ltd Outline: Fila is the Australian subsidiary of Fila Holdings Spa, one of the largest sportswear suppliers in the world AFL owned rights to apparel for clubs: On Field – Jumpers etc Off-field – Tracksuits etc Fila had exclusive rights to ‘on-field’ apparel for 5 teams They implemented selective distribution policy Only supply their apparel to stores that didn’t stock ‘Team Spirit’ apparel, who was a competitor. Evidence that ‘Team Spirit’ was severely disadvantaged by this. Decision: Ruled that Fila was fully aware that actions would breach TPA. Fila was warned number of times and only ceased when ACCC stepped in. Fined them $3 Mil. CASE: ACCC v Baxter Healthcare Pty Ltd Outline: Baxter is a manufacturer and supplier of sterile fluids and peritoneal dialysis (‘PD’) products It has dominated market shares for over six years and PD products are highly valuable Baxter’s customers were the various state governments Products were sold individually at very high prices, and lower if brought in groups Purpose of this agreement ‘to prevent rival bidders for PD products from being able to put forward bids that were realistically competitive’. Because of this state governments had incentives to enter into exclusive bundling contracts with Baxter Decision: Baxter was immune because TPA does not cover ‘the crown or government agreements’. Did consider that s46 and s47 had been breached but couldn’t fine them. Important: If the supplier is only supplying one product then there will be no breach of s 47 because: it will not be possible to conclude that the supplier has supplied a product on condition that the buyer not acquire a good or service from a competitor of the supplier a manufacturer of yachts is not breaching s 47 by refusing to supply yachts without masts. Yacht is a composite product made up of the hull, the keel and the mast Minimum quantities agreements Buyer is required to take a minimum quantity of a product. if a supplier requires a buyer to purchase 100 units of a particular product
Exclusive_Dealing.docx