On 3 April 2007 the Antitrust Modernisation Commission (AMC), United States of America released a report and recommendations to the President of the United States and Congress. The commission had been established in 2002 to ‘study the United States antitrust laws and to determine whether they should be modernised’.
At a time when Australia is considering proposed amendments to its Trade Practices Act 1974 (and some changes have already been introduced), the report of the AMC is very modest.
Its major recommendation is to repeal the often criticised Robinson/Patman Act which was enacted in 1936 and which, in essence, deals with price discrimination and related practices (the Australian Trade Practices Act 1974 originally had a section which dealt with price discrimination—section 49—which was repealed some years ago).
Apart from some minor changes occasioned by the inconsistent application of certain judicial decisions, the thrust of the AMC recommendations was basically to leave things as they are.
Recognising the need for greater United States cooperation with overseas jurisdictions, the AMC encouraged the Federal Trade Commission and the Department of Justice which both deal with the subject matter of mergers, to try to rationalise the way in which merger regulation is pursued in the United States.
By and large, however, no significant changes to the legislation are recommended—‘steady as she goes’ appears to be the considered view of this strong body of experts.
One interesting recommendation which will not go unnoticed in Australia was to encourage the Department of Justice and the Federal Trade Commission to give greater emphasis to efficiency issues in evaluating whether mergers breached the United States antitrust laws. Of course, in the United States, there is a much more stringent and formalised system of merger review than currently applies in Australia, although the new formal merger review process introduced on 1 January 2007, if used widely, may well bring Australian practice more into line of what has been occurring in the United States.
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For information regarding possible implications for your business, contact a member of the Competition & Market Regulation team.