Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13)

In the case of Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13), the Australian Competition and Consumer Commission (ACCC) brought an action against Prysmian, an Italian company involved in the manufacture and supply of electrical cables and accessories, for contravening sections of the Competition and Consumer Act 2010 (Cth) through its participation in a cartel. The dispute centred on the supply of land-based and submarine-based electrical cables and accessories, and the court had to determine whether Prysmian's actions constituted a contravention of the Act, and if so, what penalties and declarations were appropriate.

The legal issues before the court included the interpretation of the Act, specifically whether Prysmian's conduct amounted to a contravention of sections 45(2)(a)(i) and 45(2)(a)(ii) and 45(2)(b)(ii), which prohibit arrangements that restrict or limit the supply of goods and control prices. The court also had to consider the appropriate penalty under section 76 of the Act, the parity principle in relation to penalties imposed on other entities involved in similar conduct, and the question of costs between the parties.

The court found that Prysmian had contravened the Act by entering into an arrangement with competitors that had the purpose and effect of fixing, controlling, or maintaining prices and restricting the supply of electrical cables and accessories to Snowy Hydro Limited. The court concluded that the maximum penalty of $10 million should not necessarily be applied, as the penalty needed to reflect the gravity and seriousness of the contravention. Considering the parity principle, the court found that while the penalty imposed on another respondent, Viscas Corporation, was relevant, it was not binding. The court also examined the conduct of Prysmian, which was deliberate, premeditated, and engaged in by senior employees, without contrition or cooperation from the company. The court further found that the ACCC was not unreasonable in rejecting an offer from Prysmian, and the case was complex, making the application for indemnity costs from the ACCC to Prysmian inappropriate.

In its final orders, the court declared that Prysmian had contravened the Act by entering into an arrangement that restricted the supply of goods and controlled prices. It ordered Prysmian to pay a penalty of $3,500,000 and to cover the ACCC's costs of the proceeding, subject to certain qualifications. The court also addressed the application for indemnity costs by Nexans SA, denying it and ordering costs on a party and party basis for the period in question.