9Exemption relating to certain contracts

9 Exemption relating to certain contracts

(1) If: (a) an infrastructure operator proposes to enter into a contract in writing for the provision of infrastructure services to a customer that specifies the infrastructure charges that will apply (whether directly or by specifying a formula by which they will be determined); and (b) either: (i) the customer believes, on reasonable grounds, that disclosure of the details of those charges would result in a material financial loss for, or material detriment to, the customer; or (ii) the operator believes, on reasonable grounds, that disclosure of the details of those charges would result in a material financial loss for, or material detriment to, the operator; the operator or the customer, or both the operator and customer, may apply in writing to the ACCC for an exemption from the requirement under rule 11 that the operator include the charges in its schedule of charges. (2) An application must: (a) be made before the contract is entered into; and (b) include the reasons for the belief referred to in subparagraph (1)(b)(i) or (ii), as applicable. (3) Where: (a) the infrastructure operator proposes to enter into contracts in identical terms with more than one customer; and (b) subparagraph (1)(b)(i) or (ii) applies in relation to each customer; the applications may be combined in a single application.

Note: The combined application will need to specify each customer in relation to whom the exemption is applied for, and provide reasons for the belief referred to in subparagraph (1)(b)(i) or (ii) in relation to each customer.

(5) Before the ACCC makes a decision in relation to an application under this rule, the ACCC may, in writing, request the infrastructure operator or the customer to give the ACCC further information relating to the application within a period specified by the ACCC. (6) The ACCC must, within 30 business days after receiving an application, grant, or refuse to grant, the exemption. (7) In calculating the period of 30 business days referred to in subrule (6), disregard, if the ACCC has requested further information under subrule (5)—a day during any part of which the request, or any part of the request, remains unfulfilled. (8) If the ACCC: (a) is unable to make a decision within the period of 30 business days referred to in subrule (6) or, if that period is extended or further extended, that period as extended; and (b) within that period, gives written notice to the applicants, or applicant, explaining why the ACCC has been unable to make the decision within that period: that period is extended, or further extended, by a period of 10 business days. (9) The ACCC must refuse to grant the exemption if it is not satisfied that disclosure of details of the infrastructure charges under the proposed contract would have a material financial loss for, or material detriment to, the infrastructure operator or the customer. (10) The ACCC must give notice in writing of its decision on an application under this rule to the customer and infrastructure operator and, if it refuses to grant the exemption, must include in the notice the reasons for its refusal. (11) If the ACCC has not either granted, or refused to grant, an exemption sought in an application under this rule within the period of 30 business days, or within that period as extended or further extended under subrule (8), after receipt of the application, the exemption is to be taken to have been granted at the expiration of that period. (12) If the ACCC grants an exemption under this rule, the ACCC must, subject to rule 55, publish on the ACCC’s website a notice to the effect that the exemption has been granted. (13) If, under this rule, an exemption is granted in respect of a contract, or proposed contract: