Monsanto Australia Limited - s.87B undertaking

On 2 May 2002, the ACCC accepted Court-enforceable Undertakings from each of Nufarm Australia Limited and Monsanto Australia Limited. The Undertakings address the ACCC's competition concerns regarding the proposed appointment of Nufarm as Monsanto's exclusive distributor for Monsanto's Roundup range of glyphosate-based herbicides for agricultural uses.

The Undertakings prevent Nufarm and Monsanto from making an application for a review of the Minister for Customs' decision in February 2002 to not impose a dumping duty on glyphosate imported from China.

For the next three years Nufarm and Monsanto must also obtain an opinion from an independent adviser regarding the prospect of success of any proposed glyphosate anti-dumping application prior to lodging such an application. The Undertakings also stipulate that the independent adviser must certify that the proposed anti-dumping application is made bona fide and not frivolously or vexatiously. The independent adviser must be approved by the ACCC and consult with the ACCC in forming their opinion.

Nufarm has additionally undertaken:

• not to supply Roundup or other glyphosate products on the condition that its customers not acquire glyphosate from Nufarm's competitors; and
• not to withhold supply of Roundup or other glyphosate products for the reason that its customers acquire glyphosate from Nufarm's competitors.

Monsanto has additionally undertaken:

• not to supply its Roundup Ready crop seeds, or allocate licences for their use on condition that customers acquire Roundup or other glyphosate suplied by Monsanto or Nufarm;
• not to supply its Roundup Ready crop seeds, or allocate licences for their use on condition that customers not acquire glyphosate from a competitor of Monsanto or Nufarm;
• not to withhold supply of its Roundup Ready crop seeds, or withhold allocation of licences for their use, on condition that customers did not acquire Roundup or other glyphosate supplied by Monsanto or Nufarm; and
• not to withhold supply of its Roundup Ready crop seeds, or withhold allocation of licences for their use, on condition that customers acquired glyphosate from a competitor of Monsanto or Nufarm.

Further, Monsanto and Nufarm have also undertaken to develop compliance programs with the aim of training relevant sales, marketing and management staff on adherence to their respective Undertakings.

Please refer to Monsanto undertaking of 28.05.2002.