Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd

The High Court of Australia considered an appeal by the Australian Competition and Consumer Commission (ACCC) against Flight Centre Travel Group Ltd. The dispute concerned allegations that Flight Centre had contravened section 45 of the *Trade Practices Act 1974* (Cth) by proposing arrangements with three airlines – Emirates, Malaysia Airlines, and Singapore Airlines – with the purpose or effect of fixing, controlling, or maintaining the price of international airline tickets. The core of the ACCC's case was that Flight Centre, despite acting as an agent for these airlines, was also a competitor in the relevant market, and that its proposals to the airlines to prevent them from discounting their direct sales constituted price fixing that substantially lessened competition.

The central legal issue before the High Court was whether Flight Centre, in its dealings with the airlines whose tickets it sold, was in competition with those airlines. This question was critical because the application of section 45 of the Act, particularly in conjunction with the deeming provision in section 45A, required Flight Centre to be characterised as a competitor to establish a contravention. The High Court also considered the appropriate definition of the relevant market for the purposes of assessing competition.

The High Court, in allowing the appeal in part, determined that the market should be defined as one for the supply of international airline tickets, rather than for the supply of carriage services or distribution and booking services. The Court reasoned that Flight Centre and the airlines were not in competition in relation to the supply of carriage services themselves, but rather in relation to the supply of contractual rights to those services, i.e., the tickets. The Court varied the declarations made by the primary judge to accurately reflect the findings regarding the price fixing of international airline tickets. The matter was remitted to the Full Court of the Federal Court of Australia for the determination of issues relating to penalty.