Competition and Consumer Act - Australia

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acquisition situation — in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person).

      Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.

      Note: For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7).

      Prohibition in a supply situation

      (2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

      (a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or

      (b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:

      (i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and

      (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

      Prohibition in an acquisition situation

      (3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

      (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or

      (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition:

      (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and

      (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

      No contravention if second person gives written consent to written contract etc.

      (4) Subsections (2) and (3) do not apply to a contract, arrangement or understanding if it is in writing and was made or arrived at with the written consent of the second person.

      Meaning of accustomed to supply

      (5) In this section, a reference to a person who has been accustomed to supply goods or services to a second person includes (subject to subsection (6)):

      (a) a regular supplier of such goods or services to the second person; or

      (b) the latest supplier of such goods or services to the second person; or

      (c) a person who, at any time during the immediately preceding 3 months, supplied such goods or services to the second person.

      Exception to subsection (5)

      (6) If:

      (a) goods or services have been supplied by a person to a second person under a contract between them that required the first person to supply such goods or services over a period; and

      (b) the period has ended; and

      (c) after the end of the period, the second person has been supplied with such goods or services by another person and has not also been supplied with such goods or services by the first person;

      then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to supply such goods or services to the second person.

      Meaning of accustomed to acquire

      (7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)):

      (a) a regular acquirer of such goods or services from the second person; or

      (b) a person who, when last acquiring such goods or services, acquired them from the second person; or

      (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person.

      Exception to subsection (7)

      (8) If:

      (a) goods or services have been acquired by a person from a second person under a contract between them that required the first person to acquire such goods or services over a period; and

      (b) the period has ended; and

      (c) after the end of the period, the second person has refused to supply such goods or services to the first person;

      then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first person is not to be taken to be a person who has been accustomed to acquire such goods or services from the second person.

      Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).

      45EA Provisions contravening section 45E not to be given effect

      A person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person:

      (a) contravened subsection 45E(2) or (3); or

      (b) would have contravened subsection 45E(2) or (3) if:

      (i) section 45E had been in force when the contract or arrangement was made, or the understanding was arrived at; and

      (ii) the words “is in writing and” and “written” were not included in subsection 45E(4).

      Note: Conduct that would otherwise contravene this section can be authorised under subsection 88(7A).

      45EB Sections 45D to 45EA do not affect operation of other provisions of Part

      Nothing in section 45D, 45DA, 45DB, 45DC, 45DD, 45E or 45EA affects the operation of any other provision of this Part.

      46 Misuse of market power

      (1) A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:

      (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;

      (b) preventing the entry of a person into that or any other market; or

      (c) deterring or preventing a person from engaging in competitive conduct in that or any other market.

      (1AAA) If a corporation supplies goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying the goods or services, the corporation may contravene subsection (1) even if the corporation cannot, and might not ever be able to, recoup losses incurred by supplying the goods or services.

      (1AA)

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