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NYK slapped with $20m fine by Australia for its cartel conduct

Japan’s Nippon Yusen Kaisha (NYK) has been slapped with a AUD25m ($20m) fine by the Australian Federal Court for its criminal cartel conduct, imposed by the Australian Competition & Consumer Commission (ACCC).

Following an extensive investigation by the ACCC and the Commonwealth Director of Public Prosecutions (CDPP), NYK has been charged with giving effect to cartel provisions in an arrangement or understanding with other shipping lines relating to the transportation of motor vehicles to Australia between 2009 and 2012.

The cartel operated from at least February 1997 and affected vehicles transported to Australia by NYK and other shipping lines from locations in Asia, the US and Europe on behalf of major car manufacturers including Nissan, Suzuki, Honda, Toyota and Mazda.

“The Australian community relies heavily on imported vehicles, so a longstanding cartel in relation to the transportation of those vehicles to Australia was of significant concern,” said Rod Sim, chairman of ACCC.

“The NYK fine is also the second largest ever imposed under the Competition and Consumer Act, and incorporated a significant discount for NYK’s plea and cooperation,” Sim said.

The ACCC quoted Justice Wigney as saying that the fine “incorporates a global discount of 50% for NYK’s early plea of guilty and past and future assistance and cooperation, together with the contrition inherent in the early plea and cooperation: meaning that but for the early plea and past and future cooperation, the fine would have been AUD50m”.

In this case, the maximum penalty was calculated on the basis of 10% of NYK’s annual turnover in connection with Australia, in the 12 months prior to the commencement of the offence. On that basis, NYK’s conduct attracted a maximum penalty of AUD100m.

Sim welcomed the Federal Court’s decision and said the judgement sends a strong warning to the industry and the business community at large, and highlighted that parties who engage early and cooperate with the authorities may be shown leniency.

NYK entered a guilty plea on 18 July 2016 and has been cooperative throughout the ACCC’s investigation.

On 20 November 2016, the CDPP laid charges against another alleged participant in the cartel, Kawasaki Kisen Kaisha (K Line), another Japanese shipping company.

The ACCC said its investigation in relation to other alleged cartel participants is continuing.

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