Application to vary the Indicative Access Agreement - 9 October 2008 (withdrawn)

ARTC’s application to vary the 2008 Interstate Rail Access Undertaking - Draft decision

On 9 October 2008, ARTC submitted an application to vary the 2008 Interstate Rail Access Undertaking with the ACCC under s.44ZZA(7) of the Trade Practices Act 1974 (the Act), known as the Competition and Consumer Act 2010 from 1 January 2011. The 2008 Interstate Rail Access Undertaking came into operation on 20 August 2008 and has a 10 year term. ARTC’s proposed variation relates to the indemnity and loss regime in clause 15 of the Indicative Access Agreement (IAA) of the Undertaking so that the liability of either party to third parties for loss or damage is limited in certain circumstances.

On 18 December 2008, the ACCC released its draft decision on ARTC’s application to vary the 2008 Interstate Rail Access Undertaking. Drawing on the submissions received in response to the 31 October 2008 Issues Paper, the ACCC’s draft decision is to not consent to the ARTC application to vary the 2008 Interstate Rail Access Undertaking as the ACCC is of the preliminary view that it is not an appropriate variation, having regard to the relevant statutory criteria under subs. 44ZZA(3) of the Act.

The ACCC received written notice by ARTC on 15 January 2009 withdrawing its application of 9 October 2008 to vary the 2008 Interstate Rail Access Undertaking. ARTC indicated in its withdrawal letter that it will undertake further consultation with rail operators about the wording of the variation. In light of the withdrawal of the application, the ACCC will not issue a final decision on the variation application.