High Court rules in ACCC's favour in air cargo cartel case

The Australian Competition and Consumer Commission (ACCC) noted that the High Court of Australia has found that price fixing agreements entered into between Air New Zealand Ltd (Air NZ), PT Garuda Indonesia Ltd (Garuda), and other international airlines, which occurred between 2002 and 2006, breached Australia's competition law.

"This is a significant win for the ACCC in the long-running, highly contested air cargo cartel proceedings," ACCC Commissioner Sarah Court said.

The ACCC took action against Air NZ in 2009 and Garuda in 2010 alleging they colluded with other airlines on charges for fuel, security, insurance surcharges, and a customs fee, for the carriage of air freight from origin ports in Hong Kong (both airlines), Singapore (Air NZ) and Indonesia (Garuda) to destination ports in Australia. Under the law as it then stood, the ACCC was required to establish that the conduct occurred in a 'market in Australia'.

The High Court unanimously dismissed the appeals by each airline and held that all aspects of the market, including the presence of customers in Australia, need to be considered in deciding whether a market is 'in Australia'.

"How a market is defined, including considerations of whether conduct occurs in Australia, are critical issues to the understanding and interpretation of Australian competition law," Ms Court said.

The matters against Air NZ and Garuda will be remitted to the Federal Court for a hearing as to relief, including penalty.

Findlaw

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