Competition authorities have imposed substantial fines for competition law violations over the last few decades. This is the result of an international consensus that monetary sanctions (also known as pecuniary sanctions) against corporations are essential to deter anticompetitive conduct.
In 2017, the OECD was asked to provide Australia with an overview of international experiences and best practices regarding the imposition of sanctions for infringements of competition law, following a discussion on ‘Sanctions in Antitrust Cases’ held during the 2016 OECD Global Forum on Competition.
The resulting report compares Australia's pecuniary sanctions regime for competition law infringements to that of a number of other major OECD jurisdictions, including larger ones, such as the EU and the US, as well as smaller jurisdictions with advanced competition law regimes, such as Germany, Japan, Korea and the UK. Together, these jurisdictions provide a valuable mix of characteristics that reflect the variety of competition law regimes across the world and illustrate the breadth of approaches in different legal systems.
Despite Australia’s competition law system already being in line with international practices, it has particular characteristics, notably its method for applying sanctions. While in most regimes pecuniary penalties are set by reference to a detailed and publicly available methodology that focuses largely on the relevant sales of the infringing company's product, in Australia the amount of pecuniary penalties is determined by the Federal Courts following an ‘instinctive synthesis’ of various factors. These differences do not prevent Australia from imposing substantial and deterrent sanctions for breaches of competition law. However, the maximum penalties that are imposed in Australia are nonetheless lower than in comparable jurisdictions for competition law infringements.
Even if the report cites extensively the Australian experience, it has broader value as a collection of global experiences and may be of interest to policy-makers, the judiciary, court members, competition agencies and other stakeholders in general.