The ACCC’s conflicting interests as regulator and as monitor of competition policy
In accepting agreed outcomes as to findings and penalty with the ACCC in respect of bait and switch conduct by a power company, Sumo, the Federal Court noted that the prospect of insolvency or difficulty in paying a penalty should not subvert the primary objective of achieving deterrence, including general deterrence.
Hence, in this case, Sumo’s financial circumstances did not justify a reduction in penalty that would defeat that public interest in deterring other energy retailers from engaging in similar conduct. But its cash flow problems could and were taken into account in an agreement that the penalty – of $1.2m – be paid over 3 years; the fact that Sumo had new management, committed to a program designed to ensure that there would be no repetition of its past offending was also relevant.???
In that context, the Judge made these comments about the perhaps somewhat conflicting interests of the ACCC:
领英推荐
?“19. I think it fair to observe that notwithstanding the parties in oral argument disavowing the relevance of potential insolvency or difficulty in Sumo paying an appropriate penalty, the parties accepted that at least some attention had been given to shaping the penalty in a manner that might permit Sumo to survive. I do not think it possible to avoid the inference that the amount of the penalty proposed and allowing payment by instalment was at least in part influenced by that consideration. I mean no disrespect to the ACCC by observing that the ACCC did not seek to disavow that it perhaps had somewhat conflicting interests in the present circumstances: in its role as a regulator it was required to be satisfied that the penalties it was proposing to the Court reflected the seriousness of Sumo’s conduct and provided sufficiently to serve the purpose for both general and specific deterrence: whereas in its role of monitoring competition policy it would not regard Sumo’s loss as a (albeit small) competitor in the electricity market as other than unfortunate”.
?Australian Competition and Consumer Commission v Sumo Power Pty Ltd?[2021] FCA 712
?