The Australian Competition and Consumer Commission has announced that it will not oppose the proposed acquisition by Australian Amalgamated Terminals Pty Ltd (AAT) of a long-term lease to develop and operate the automotive and RoRo Terminal at the Port of Fremantle, after accepting a court-enforceable undertaking. AAT is one of two bidders shortlisted by Fremantle Ports to acquire a long-term lease for what will be the sole automotive and RoRo Terminal at the Port of Fremantle. The undertaking seeks to address the vertical competition concerns that arise should AAT be successful in its bid. AAT is equally owned by P&O Wharf Management Pty Ltd, a wholly owned subsidiary of Qube Holdings Ltd, and Plzen Pty Ltd, a wholly owned subsidiary of Asciano Ltd. Qube and Asciano have interests in the provision of automotive stevedoring and vehicle pre-delivery inspection (PDI) services at the Port of Fremantle. In particular:
• Qube and Patrick Stevedoring Pty Ltd (a wholly owned subsidiary of Asciano) have automotive stevedoring operations at the Port of Fremantle; and
• Prixcar Services Pty Limited (in which Qube has an indirect 25% shareholding) and Patrick Autocare Pty Limited (in which Asciano has an 80% interest) provide PDI services for motor vehicles at the Port of Fremantle.
“The ACCC was concerned that if the proposed acquisition proceeds, AAT would have the ability and incentive to discriminate against rival and potential new stevedores and PDI service providers through pricing or non-price terms of supply,” ACCC Chairman Rod Sims said. “This could potentially lead to a substantial lessening of competition in the markets for the supply of automotive stevedoring and vehicle PDI services at the Port of Fremantle.”
The undertaking addresses these vertical competition concerns by:
• requiring AAT to comply with a number of non-discrimination, open access, ring-fencing of confidential information and self-reporting obligations;
• providing mechanisms for the independent resolution of price and non-price related disputes if parties consider that they have been discriminated against or have other concerns relating to the supply of terminal services by AAT;
• providing for independent auditing of AAT’s compliance with its obligations in the undertaking;  and
• providing the ACCC with the power to publicly review the undertaking two years after its commencement and every five years thereafter.