competition/antitrust law: June 2008 Archives
It's official, the ACCC announced late yesterday that they propose to revoke the exclusive dealing notification made by eBay in relation to their plans to force Australian buyers and sellers to exclusively use PayPal for making payments. The ACCC has issued a draft notice to this effect and is calling for further submissions from all interested parties (i.e. eBay, and the several hundred people who made submissions denouncing eBay's plans) on that draft. They may or may not hold a public meeting known as a "pre-decision conference".
It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.
The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.
It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.
The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.
