An access undertaking is a document which establishes the terms and conditions under which a service provider is willing to offer or negotiate access to service(s) provided by an essential facility to an access seeker.
Access providers may give an access undertaking to the ACCC. An undertaking may specify the terms and conditions on which access will be made available to third parties.
The Trade Practices Act does not prescribe the information that should be provided in an access undertaking. However, Part IIIA of the Act notes several examples of the kinds of things that might be dealt with in an undertaking. These are:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions to these service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business structure;
(e) an obligation on the provider to provide information to the ACCC or to another person;
(f) an obligation on the provider to comply with decisions of the ACCC or another person in relation to matters specified in the undertaking.
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
The ACCC can accept or reject the undertaking. If the ACCC accepts the undertaking, the provider is required to provide access in accordance with the undertaking. The access provider can seek to vary an undertaking that is in force or it can withdraw the undertaking, but only with the ACCC’s consent.
Where the ACCC accepts an access undertaking, the service cannot then be ‘declared’. An access undertaking is able to be enforced in the Federal Court.
The purpose of undertakings is to give owners/operators of facilities the opportunity to remove the uncertainty as to what conditions will apply to the service, by agreeing to certain access arrangements with the ACCC in advance.
ACCC guidelines
Previous ACCC guides on Part IIIA matters (A guide to Part IIIA of the Trade Practices Act published in 1995 and a Guide to access undertakings published in 1999) have been withdrawn from the ACCC’s website.
The ACCC is preparing updated guidance on Part IIIA to reflect legislative amendments and, more generally, its experience in assessing access undertakings.
In the meantime, the ACCC offers the following guidance to parties which may be considering submitting an access undertaking to the ACCC pursuant to Part IIIA.
Process for having a Part IIIA access undertaking considered by the ACCC
The process of having an access undertaking considered by the ACCC encompasses three stages:
lodgement by a service provider of an undertaking with the ACCC
assessment of the undertaking by the ACCC
decision on whether the ACCC accepts or rejects the undertaking.
The following chart is provided as an indicative guide only. It is intended to give service providers a broad understanding about the likely process for having an undertaking considered by the ACCC. However, the actual process for having an undertaking considered by the ACCC will be made by the ACCC having regard to a number of matters, including but not limited to, the characteristics and complexity of the undertaking that is being assessed.
Procedure for lodgement and assessment of Part IIIA access undertakings (a guide only)
What other information should be provided by an access provider to the ACCC to support a proposal for an access undertaking?
The evaluation of an undertaking by the ACCC is a significant task. Services subject to an accepted undertaking cannot be declared by the designated Minister under Part IIIA. Consequently the ACCC will critically examine undertakings to ensure that reasonable and appropriate access mechanisms are included and that the objectives of Part IIIA are met. Sufficient information should be provided to allow interested parties to comment on the application and for the ACCC to evaluate the proposed undertaking.
As a guide, the following headings indicate the type of additional information that should be provided by an access provider in support of a proposal for an access undertaking:
name of applicant;
address for the service of documents;
contact name and address for further information;
short description of the applicant’s existing and/or anticipated business/function;
short description of the facility involved including the identity of the owner(s) and/or relevant service providers;
short description of the services relevant to the proposed undertaking;
whether any of the services are declared services pursuant to s. 44H of the Act;
whether the services are subject to an access regime;
whether there are any existing contracts for access to the facility and if so information on the contracts (in particular who the contract is with and the amount of access under the contract);
description of the industry in which the service is provided;
description of the market in which the service operates;
description of any related or associated markets that would be affected by the provision of access to the service;
description of the parties likely to be affected by the provision of access;
identification of any parties that have sought access or are likely to seek access to the service;
period for which the undertaking is to apply;
details of the terms and conditions proposed by the application; and
details of any claims for confidentiality and the reasons why confidentiality is being sought.
How should an access undertaking and supporting information be lodged with the ACCC?
Access undertakings and supporting information should be lodged in writing with the ACCC’s Melbourne office and addressed to:
General Manager – Transport Regulatory Affairs Division ACCC GPO Box 520 MELBOURNE VIC 3001
Queries regarding lodgement of an access undertaking should be directed to the General Manager, Transport Branch, Regulatory Affairs Division, ACCC (Ph 03 9290 1800) or via email on transport.prices_oversight@.accc.gov.au.
How long will it take for the ACCC to assess an access undertaking?
Effective from 1 October 2006, the Part IIIA legislative regime sets target time limits for ACCC decisions.
The ACCC must use its best endeavours to make a decision on an access undertaking application within six months, beginning on the day that it receives the application.
If the ACCC is unable to make a decision within the six months period, it must notify the service provider in writing that it intends to extend the period to assess the application and must specify what that extended period is. Additional time may be required in a number of circumstances, including where the undertaking raises complex or controversial issues and requires further assessment. In other cases, more time may be required where there are delays by parties in providing information or submissions to the ACCC during the assessment process.
Prior to lodging an access undertaking with the ACCC
In certain circumstances, some preliminary guidance from ACCC staff may be provided to a service provider that is considering lodging an undertaking with the ACCC. Pre-lodgement advice may help clarify for service providers matters relating to the ACCC’s assessment process. Pre-lodgement advice by ACCC staff cannot be given on the merits or otherwise of particular aspects of a draft undertaking until the undertaking has been lodged with the ACCC for formal evaluation.
Requests by a service provider to arrange a pre-lodgement discussion with ACCC staff should be made by contacting the General Manager, Transport Branch, Regulatory Affairs Division, ACCC (Ph 03 9290 1800) or via email on transport.prices_oversight@.accc.gov.au.
