Australian Amalgamated Terminals Pty Ltd - s.87B undertaking

On 23 April 2015, the ACCC announced it had accepted an undertaking from Australian Amalgamated Terminals Pty Ltd (AAT) in relation to its proposed acquisition of a long term lease for the automotive and RoRo terminal at the Port of Fremantle (the proposed acquisition).

AAT intends to submit a bid to the Fremantle Port Authority for the right to develop and operate a new automotive and RoRo terminal at Victoria Quay within the Port of Fremantle for an anticipated 20 year period, commencing in 2015.

The ACCC was concerned that if the proposed acquisition proceeds, AAT would have an increased ability and incentive to:

1. foreclose the entry and expansion of third party stevedores or pre-delivery inspection (PDI) operators which compete with entities associated with each of AAT’s two shareholders, by setting high prices for access services for those third party terminal users
2. frustrate or restrict access to the terminal by third party stevedores or PDI operators which compete with entities associated with each of AAT’s two shareholders through non-price terms of supply
3. gain access to commercially sensitive information of terminal users, shipping lines and car manufacturers and potentially use or disclose such commercially sensitive information in order to benefit the downstream entities associated with its shareholders.

The objective of the undertaking is to address the ACCC's competition concerns which would otherwise arise as a consequence of the proposed acquisition. The undertaking aims to achieve this objective by:

1. requiring AAT to comply with open access conditions (Schedule 1) that prevent AAT from discriminating between terminal users, or engaging in conduct for the purposes of preventing or hindering access services to terminal users or prospective terminal users
2. requiring AAT to ring fence terminal users’ confidential information, and maintain controls to ensure confidential information is only disclosed to AAT personnel and for specific permitted purposes
3. requiring AAT to comply with a price dispute resolution process (Schedule 4, which includes the appointment of an ACCC-approved independent price expert), and a non-price dispute resolution process (Schedule 5)
4. providing for the effective oversight of AAT’s compliance with the undertaking, including to provide for a compliance audit by an ACCC-approved independent auditor at the request of a terminal user at any time
5. providing for regular reviews of the undertaking to ensure that the undertaking continues to meet its objectives.