Unidentified firm or persons triggered NZ Commerce Commission’s pre-Xmas blitz
- Magazine Stories January Issue 2009
- Thursday, 28 January 2016
NEW Zealand’s Commerce Commission grabbed the headlines in a pre-Christmas court prosecution of a large number of carriers for alleged air cargo price-fixing and other cartel-type behaviour, writes Kelvin King.
For the airlines it was a worrying reprise of the anti-cartel mania experienced in the US, UK, Australia and elsewhere.
For shippers and forwarders, it has raised the possibility of higher rates, less-than-seamless delivery pathways and extra documentation as airlines shy away from integration of services and seek to further differentiate their product offerings.
As AirCargo Asia-Pacific has reported in the past 18 months, the blitz has already induced a degree of paranoia in the aviation and freight industry, with some executives suggesting that the inability to consult with peers might lead not only to higher prices but also to safety and environmental efficiency issues.
While the Commerce Commission’s move in New Zealand has drawn some criticism for its apparent ‘wannabe’ emulation of overseas jurisdictions, there are few doubts that it means business and intends to follow through on prosecutions.
Paula Rebstock, the Commission’s chairwoman, is respected - and even feared - for her regulatory zeal, which is backed by strong legal powers.
She has warned that the Commission is hot on the heels of other alleged cartels, including one which she recently referred to as ‘affecting more commerce’ that the airline case; a decision on prosecutions in this case is not likely until late 2009.
Not unexpected
While the pre-Christmas timing of the airline prosecutions drew some industry sniffs, the move was far from unexpected.
The Commission had been working on the case since December 2005, with the matter widely publicised after it issued notices requiring several airlines to provide information.
When announcing the prosecutions, Rebstock noted that three airlines had not complied with the terms of these notices. “As a result, the commission filed summary proceedings for non-compliance against Cathay Pacific Airways, Singapore Airlines Cargo and Aerolineas Argentinas earlier this year,” she said.
“The District Court in Auckland will next consider this case in January 2009. The penalties for not responding to a request for information fully can be summary conviction and fines of up to NZ$30,000 for companies.”
Extensive cartel activity
While the Commerce Commission refers to the matter as “extensive and long-term cartel activity in the air cargo matter” and consumer media exposure has largely presented in that way, the reality is that at this stage the prosecutions are based only on allegations.
Evidence will be heard in the High Court, with hearings in Auckland. A date has not yet been set.
The Commission alleges that airlines have “colluded to raise the price of freighting cargo by imposing fuel surcharges for more than seven years”. This has, it claims, “affected the price of cargo both into and out of New Zealand”.
The allegations are that “airlines first entered into an illegal global agreement in 1999/2000 under the auspices of the trade organisation International Air Transport Association (IATA). The airlines imposed the fuel surcharges between 2000 and 2006”.
And, says the Commission, the allegations “also involve a series of regional price fixing agreements”. Further, it says “a large number of airlines conspired to price fix through the imposition of a security surcharge immediately following the 9/11 terrorist attacks”.
IATA has already denied that an anti-competitive agreement was effected.
‘Grandstanding’ claimed
Although Air New Zealand is but one of several parties to the case, it has been the loudest in denouncing the move.
Some other carriers have commented in milder terms, although all of these have said they will defend themselves against the allegations.
John Blair, Air New Zealand’s general counsel, came out swinging almost immediately after Rebstock held a press conference to announce the prosecutions.
He said that the airline had never condoned anti-competitive conduct and had co-operated fully with the Commerce Commission throughout its investigation, providing hundreds of thousands of documents and making current and former employees available for interview from around the world.
This had cost several million dollars, Blair pointed out.
“Despite extensive reviews of our own files and interviews with key staff, Air New Zealand has not been able to identify any evidence of price-fixing or cartel behaviour. We have repeatedly asked the Commerce Commission to present us with any evidence to indicate that Air New Zealand has breached any laws.
“To date they have been either unwilling or unable to do so.”
Blair suggested that the Commission’s announcement of court proceedings “is clearly an approach designed to justify their existence and seems more about grandstanding than about getting to the bottom of the allegations and facilitating a co-operative approach from the airlines”.
These comments were, AirCargo Asia-Pacific has been told, backed up by Air New Zealand’s chief executive, Rob Fyfe, in communications to airline staff.
There appears to be a strong feeling throughout Air New Zealand that the company has been targeted unjustly.
Firing line
Rebstock said that while as many as 60 airlines could be involved in the alleged cartel, along with “a great number of individuals throughout the world,” the Commission had decided to focus on those airlines that had the greatest impact on New Zealand “as well as the most culpable individuals”.
Those listed on the High Court proceedings papers are Air New Zealand, British Airways, Cargolux, Cathay Pacific, Emirates, Garuda Indonesia, Japan Airlines, Korean Airlines, Malaysia Airlines, Qantas Airways, Singapore Airlines Cargo and Singapore Airlines, Thai Airways and United Airlines.
Several current and former airline staff are named as defendants. The commission’s statement of proceedings described them as “managers holding positions of responsibility” who were “allegedly actively involved in promoting the conspiracy and/or were allegedly in a position to stop the conduct and deliberately refrained from doing so”.
Unidentified trigger
Rebstock said the case was triggered in 2005 by a leniency application.
It is not known exactly where this came from, but Qantas and British Airways are said to be co-operating with the Commission.
The Commission has a leniency program which can deliver immunity from prosecution for the first company or individual to bring an alleged cartel to Commission attention. Those who admit liability and co-operate once an investigation is under way can win “a lower level of enforcement in the form of discounts on penalties, subject to the endorsement of the High Court”.
As is well known, both Qantas and British Airways have been hit by price-fixing prosecutions in other parts of the world.
Recently, as the results of proceedings instituted by the Australian Competition & Consumer Commission (ACCC), the Federal Court in Sydney imposed A$20 million in penalties on Qantas and A$5 million on British Airways, along with A$200,000 each toward ACCC’s costs. Both also were the subject of restraining orders.