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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
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  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
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  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
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  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
AUSTRALIA

Peter Armitage
Practice Group Head

Peter.armitage@ashurst.com

Tel: +61 2 9258 6119

Alyssa Phillips
Partner

Alyssa.phillips@ashurst.com

Tel: +61 7 3259 7352

Ross Zaurrini
Partner

Ross.zaurrini@ashurst.com

Tel: +61 2 9258 6840

John McKellar
Senior Associate

john.mckellar@ashurst.com

Tel: +61 2 9258 5694

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes.  

2) Which authorities enforce the merger control regulation?

The Australian Competition and Consumer Commission (ACCC) enforces the Competition and Consumer Act 2010 (Cth) (CCA) which includes merger control provisions. Civil enforcement action can be brought by the ACCC in the Federal Court of Australia. 

Appeals from merger authorisation decisions made by the ACCC are heard by the Australian Competition Tribunal.

3) Relevant regulations and guidelines with links:

Section 50 of the CCA prohibits acquisitions of shares or assets that have the effect or likely effect of substantially lessening competition in a market in Australia.  

Section 50A of the CCA deals with acquisitions that occur outside of Australia which have an effect on a market for goods or services in Australia, however this section has never been relied on.  

Links to the relevant legislation, guidelines and forms are listed here:

Official English version

Competition and Consumer Act 2010 (Cth)

Foreign Acquisitions and Takeovers Act 1975 (Cth)

Merger Guidelines 2008

Informal Merger Review Process Guidelines 2013

Merger Authorisation Guidelines 2018

Application for merger authorisation

Guidelines on gun jumping risks for merger transactions

Guidelines for excluding confidential information from the public register for authorisation (merger and non-merger) and notification processes

Competition and Consumer Regulations 2010 (Cth) 

4) Does general competition regulation apply to mergers or ancillary restrictions?

Section 45(7) of the CCA provides that the general prohibition on anticompetitive contracts, arrangements or understandings contained in section 45 of the CCA will not apply in relation to contracts, arrangements or understandings that would constitute an acquisition of shares or assets.  Accordingly, this provision ensures that the section 50 prohibition is the provision that takes priority in circumstances where other prohibitions on anti-competitive contracts, arrangements or understandings may otherwise apply.  This is commonly referred to as an "anti-overlap" provision.  

The CCA also contains an exception to the cartel and anticompetitive contracts prohibitions for provisions of a sale contract that are solely for the protection of the purchaser in respect of the goodwill of the business (section 51(2)(e)).  

It should be noted, however, that the anti-overlap provision does not shield from liability all provisions of a merger agreement; only those "in so far as" they provide for the acquisition, and the goodwill exception is narrowly drafted.  Accordingly, ancilliary provisions of a merger agreement, such as non-compete clauses, may still raise issues under other sections of the CCA such as section 45 or the cartel laws. 

Moreover, anticompetitive conduct that takes place in connection with a merger may be captured by section 45 and other prohibitions in the CCA.  In particular, merger parties must be careful not to share competitively sensitive information or start integration (e.g. by imposing price or supply conditions on the other party) prior to completion of the merger. The ACCC may consider such conduct "gun-jumping" in contravention of the prohibitions on concerted practices, anticompetitive agreements, and/or the per se prohibition of cartel conduct.  

5) May an authority order a split-up of a business irrespective of a merger?

The CCA does not confer any right on the ACCC to order a "split-up" of a business irrespective of a merger.  However, the ACCC can apply to the Federal Court seeking an order that an acquirer divests the shares or assets acquired in contravention of section 50.  

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Foreign persons must notify the Australian Government, through the Foreign Investment Review Board, and obtain approval from the Federal Treasurer for any significant investment in land, a 20% interest in an Australian entity, or any "direct interest" in an Australian agribusiness, in each case if certain value thresholds are triggered. A "direct interest" in an Australian agribusiness is an interest of at least 10% but may include lower levels of interest if accompanied by other control or commercial rights.

All foreign governments and their related entities, including sovereign wealth funds, must also notify the Australian Government (through the Foreign Investment Review Board) and obtain approval from the Federal Treasurer for any direct investment in assets or land in Australia, regardless of the value of that investment.  There are limited exceptions for low level investments which can be explored on a case-by-case basis.

Even if notification is not compulsory, the Federal Treasurer may have power to intervene in an action which causes a change of control (including because two or more un-associated foreign investors hold an aggregate interest of 40% or more).  Accordingly, notification can also be made on a voluntary basis.

The Government may refuse approval where an investment is "contrary to the national interest".  Issues which will be considered closely in assessing the acquisition against the "national interest" include national security, competition, government policies and tax revenues, impact on the community, economy and employment and the character of the investor. The Foreign Investment Review Board's regular practice is to consult with Commonwealth, State and Territory Government departments and agencies, including the ACCC and the Australian Taxation Office, in making its decision.  

7) Are any parts of the territory exempted or covered by particular regulation?

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Australia has a voluntary merger review regime covering all sectors of the economy.  It is not unlawful to complete a merger without notifying the ACCC. A contravention only arises where the merger otherwise breaches section 50 of the CCA.

However, the ACCC expects to be made aware of mergers well in advance of completion where:

  1. the products of the merger parties are either substitutes or complements; and
  2. the merged firm will have a post-merger market share greater than 20% in the relevant markets. 

If merger parties do not notify the ACCC of mergers that the ACCC would expect to be told about in advance of completion and give the ACCC sufficient time to review the merger, the ACCC can investigate the completed merger and apply to the Federal Court for orders in relation to a breach of section 50 of the CCA including penalties and divestiture orders. 

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Section 50 of the CCA applies to any acquisition of shares in the capital of a body corporate or any acquisition of assets. Assets need not constitute a business to be caught by section 50. 

10) Is "change of control" of a business required?

No, a "change of control" is not required for a merger to be captured by section 50.

However, note that section 50A of the CCA (which has never been applied) concerning acquisitions that occur outside of Australia but which have an effect on a market for goods or services in Australia, does refer to the acquisition of a controlling interest). 

11) How is “control” defined?

"Control" is not defined in relation to the section 50 prohibition.  The ACCC may review an acquisition for its effect or likely effect on competition, irrespective of whether the acquiring party will obtain control over the target or whether the target will become a subsidiary. 

12) Acquisition of a minority interest

Acquisitions of minority interests may be captured by the substantive prohibition on anticompetitive mergers and the ACCC can commence an investigation into acquisitions of minority interests that it believes may have the effect of substantially lessening competition, even where a notification has not been made. 

13) Joint ventures/joint control – which transactions constitute mergers?

Joint ventures involving the acquisition of shares or assets, and transactions involving the acquisition of joint control over shares or assets, are subject to section 50 of the CCA in the same way as other types of mergers. 

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

N/A

b) Market share thresholds

As noted in topic 8, Australia has a voluntary merger control regime and there are no requirements to file a merger notification.  Nevertheless,  the ACCC expects to be given the opportunity to review certain mergers that meet the thresholds outlined below.

  1. the products of the merger parties are either substitutes or complements; and
  2. the merged firm will have a post-merger market share greater than 20% in the relevant markets. 

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

Not applicable, although the ACCC will consider whether a series of previous transactions by the same acquirer over a period of time constitute "creeping acquisitions" that ought to be taken into account in its substantive assessment of the current merger.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

N/A

20) Special industries, owners or types of transactions

N/A

21) Transactions involving only foreign businesses (foreign-to-foreign)

Transactions will be captured by section 50 where one or more of the merger parties is  incorporated, or carrying on a business, in Australia and the merger affects one or more markets in Australia.  Global transactions are regularly notified in Australia on this basis.

There is a further prohibition in relation to foreign-to-foreign transactions beyond the reach of section 50 – see section 50A – but this provision has never been invoked.  

22) No overlap of activities of the parties

Section 50 of the CCA prohibits any acquisition of shares or assets which would have or would be likely to have the effect of substantially lessening competition in a market in Australia.  Accordingly, it can, in theory,  capture mergers where the merger parties' activities do not overlap.  However, as a practical matter, if the parties have little or no overlapping activities (whether horizontal or vertical), then the merger will be unlikely to have the effect of substantially lessening competition. 

23) Other exemptions from notification duty even if thresholds ARE met?

N/A

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes.  The Australian merger notification regime is entirely voluntary and a merger party can notify the ACCC even if the merger is below the thresholds for mergers that the ACCC would ordinarily like to be informed about (i.e. a 20% or more combined share in overlapping or vertically related markets).  Merger parties will typically notify the ACCC when they are required to seek the Foreign Investment Review Board approval as the Foreign Investment Review Board will consult with the ACCC in any event, and will not approve a transaction until it is comfortable that the ACCC does not have concerns.  

It is also common for merger parties to notify the ACCC of a merger as a matter of courtesy without formally seeking ACCC clearance where they consider the transaction is highly unlikely to cause competition concerns, but they expect the ACCC to become aware of the deal and wish to anticipate questions the ACCC may ask. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes.  The ACCC is entitled to investigate and enforce section 50 regardless of whether the merger exceeds the ACCC's voluntary thresholds. 

Referral to and from other authorities

26) Referral within the jurisdiction

The ACCC may be notified of proposed acquisitions or mergers by other Australian regulators. In particular, the Foreign Investment Review Board will consult with the ACCC on deals that have been notified to the Foreign Investment Review Board since competition is a factor of national interest.  The Foreign Investment Review Board will also consider any decision made by the ACCC to approve or oppose a transaction when determining whether to approve the foreign investment. 

The ACCC's Informal Merger Review Process Guidelines  also state that where the ACCC becomes aware of a possible merger without any referral or notification, it may undertake a period of "monitoring" the transaction.  This generally occurs where there are public reports of a potential merger which may raise competition concerns.  In such cases, the ACCC will place an entry on its public register that the transaction is being monitored. 

27) Referral from another jurisdiction

The ACCC may work with overseas regulators in relation to multi-jurisdictional merger matters and has cooperation agreements with many regulators around the world. 

The ACCC has a protocol to share information with the New Zealand Commerce Commission in relation to trans-Tasman mergers. The ACCC has two treaties with the United States, enabling cooperation with the Federal Trade Commission and the Department of Justice. 

Further, the ACCC has cooperation agreements with each of: the Ministry of Commerce and the NDRC (China), the Fair Trade Commission (Japan), the Commissioner of Competition (Canada), the European Commission (European Union), the Competition and Markets Authority (UK), the Korea Fair Trade Commission (Korea), the Taiwan Fair Trade Commission and the Taipei Economic and Cultural Office (Taiwan), the Fijian Competition & Consumer Commission, the Consumer Affairs Council of Papua New Guinea, the State Administration for Industry and Commerce (China), the Department of Justice (Philippines), the KPPU (Indonesia) and the Competition Commission (India).

Such cooperation agreements can be located on the ACCC's website here

The ACCC is also involved in the International Competition Network through which it collaborates with other international agencies. 

28) Referral to another jurisdiction

See topic 27. 

29) May the merging parties request or oppose a referral decision?

Whether parties can request or oppose a referral decision may depend on the type of information that is proposed to be shared with the relevant overseas regulator.  If the information is not "protected information", as defined in section 155AAA of the CCA (e.g. publicly available information), then discussions between the ACCC and the other agencies may occur without seeking the merger parties' consent.  However, the exchange of commercially sensitive information can only occur if the ACCC follows the disclosure procedures set out in section 155AAA, or seeks and obtains confidentiality waivers from the parties. 

Filing requirements and fees

30) Stage of transaction when notification must be filed

As noted in topic 8, Australia has a voluntary merger review regime – mergers do not have to be notified to the ACCC. Where merger parties determine that they will notify a merger, the most common approach is to seek informal clearance of the merger from the ACCC well in advance of completion.  If the ACCC is not given enough time to complete its review of the merger, it may seek an undertaking from the parties to the effect that they will not complete the merger until the ACCC finalises its review and failing that the ACCC may apply to the Federal Court seeking an injunction preventing the merger.  

Merger parties can also seek authorisation of a merger from the ACCC as an alternative to the informal clearance process.  An authorisation cannot be granted for past conduct, so it is necessary for a merger party seeking authorisation to apply for and obtain authorisation prior to completion.  Authorisations are granted where the proposed acquisition is not likely to have the effect of substantially lessening competition, or where the likely public benefit derived from the acquisition outweighs any potential detriment. Accordingly, the authorisation process may be preferable to the informal clearance process for merger parties when they wish the ACCC to have regard to factors beyond the effect of the merger on competition.

31) Pre-notification consultations

Informal clearance process

There is no requirement for parties to engage in pre-notification discussions with the ACCC prior to submitting an application for informal merger clearance, although in some cases a courtesy call will be placed, or an initial briefing meeting held, prior to the filing being submitted to the ACCC.

When a notification is received, the ACCC makes an initial assessment of a merger to determine whether a public review is required.  Both public and confidential mergers may be "pre-assessed" before being subject to market inquiries.  This occurs where the ACCC has made an initial assessment, from the information available, that there is a low risk of the proposed merger substantially lessening competition and that a public review will therefore not be required.  Details of mergers that are pre-assessed are not published on the ACCC's public register. 

If a merger cannot be pre-assessed, a review will be conducted. A public review will be undertaken for mergers that are already in the public domain, which ordinarily involves market consultation and requests for information from the merger parties. Parties to a confidential merger may request that the review is undertaken confidentially, but may also choose to allow a public review.  

Parties may choose to undertake a confidential review since the details about or outcome of the confidential review will not be published on the ACCC's register.  Confidential reviews cannot be undertaken for completed or purely speculative mergers.  The ACCC may either:

  1. Take a preliminary view that the proposed acquisition does not raise competition concerns;
  2. Conclude that it is not in a position to determine whether there are competition concerns without conducting market inquiries; or
  3. Decide that the transaction may or is likely to substantially lessen competition, and that it is necessary to conduct a public review once the transaction is announced. 

A variation on the pre-assessment process above occurs where the ACCC considers it may be capable of clearing the transaction based on confidential "targeted" market inquiries.  This involves the ACCC consulting with certain market participants on a confidential basis, without commencing a public review.

Authorisation process

The ACCC strongly encourages any potential applicant to contact the ACCC for informal discussions before lodging an application for merger authorisation.  This is best to ensure that the application will be valid as lodged, and that sufficient information and documents will be provided for the ACCC to conduct its review.  The ACCC recommends that a draft application be submitted before the pre-lodgment meeting; this will be kept confidential and will not be published on the online register. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules about the timing of notifications (whether for the informal clearance process or the authorisation process) in the case of public takeover bids or acquisitions on stock exchanges.  

33) Forms available for completing a notification

Informal clearance process

There are no forms for an informal merger clearance application.  The ACCC takes a scaled approach to information requirements for its reviews and allows merger parties to determine how much information they provide up-front.  The ACCC can request additional information throughout its review. 

As a general matter, the ACCC considers the following level of information to be required initially to undertake an informal merger review:

  • Information about the parties to the transaction including the relevant bodies corporate, trade names and ownership details;
  • Details about the transaction including a description of the shares/assets being acquired, whether the transaction is public or confidential, the expected completion date, any key information about the sale agreement (i.e. the value of the transaction) and the rationale.
  • Details about the Australian business operations, interests and assets of both the acquirer and the target including: (i) a description of their business activities and the nature of the products or services they supply; (ii) Which functional levels of the market they operate in (i.e. retail, wholesale); (iii) the geographic locations of any relevant sites such as manufacturing or distribution centres, retail operations and/or the areas where the products or services are supplied; (iv) actual or estimated revenues; and (v) any significant industry contractual arrangements such as long term or exclusive supply contracts or distribution agreements.
  • Information about any markets in which both merger parties currently supply goods or services or in which they have a supply relationship with one another, including: (i) market shares (based on the market definition) of the suppliers for each market; (ii) the extent of imports to the market(s); and (iii) evidence of any recent or potential new entry or expansion and whether there are any barriers to entry.
  • In mergers subject to a public review, a list of the key customers and suppliers of the merger parties and their contact details.

More information can be found in the ACCC's Informal Merger Review Process Guidelines

Authorisation process

There is only one form for completing an Application for merger authorisation

34) Languages that may be applied in notifications and communication

English.

35) Documents that must be supplied with notification

Informal clearance process

There are no documents that are required to be supplied with an application for informal clearance. See topic 33 for the types of information that the ACCC would generally expect to see. 

Authorisation process

As noted in response to topic 33, the ACCC has published a form to be completed by merger parties.  The form requires that the proposed acquisition be described in a sufficiently precise manner to allow the ACCC to conduct market inquiries.  In particular, the following details should be provided:

  • A description of the assets/shares proposed to be acquired and the structure of the transaction;
  • Diagrams showing the change in ownership structure;
  • The rationale of the acquisition; 
  • The expected completion date;
  • Executed or most recent versions of the transaction documents (i.e. sale and purchase agreement, heads of agreement, offer documents etc.);
  • Final or most recent versions of documents that particularise the sale process (e.g. information memoranda, or documents prepared for the schemes of arrangement, takeover bids or trust schemes); and
  • Documents submitted to the board or senior management that sets out the business case for the proposed acquisition. 

An applicant for a merger authorisation must also include:

  • A public version of the application, to be placed on the ACCC's public register (online);
  • A signed declaration (signed by the applicant or an authorised person) that the information in the application is true, correct and complete; 
  • A section 87B undertaking not to complete the proposed acquisition while the ACCC is conducting its review of the application; and

A list of overseas competition agencies that have been or will be notified of the proposed acquisition and the dates on which those agencies were or will be notified. 

36) Filing fees

36) Filing fees

Informal clearance process

There is no filing fee to lodge an application for informal merger clearance. 

Authorisation process

The fee for a merger authorisation is currently AUD 25,000, as prescribed by Schedule 1B of the Competition and Consumer Regulations 2010.  

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Completion of a merger before ACCC approval is not prohibited by the CCA.  However, implementation of a merger, in the absence of completion, (such as the sharing of competitively sensitive information between the merger parties, or the acquirer directing the competitive conduct of the target) may constitute "gun-jumping" conduct and risk breaching the prohibitions on cartel conduct, anticompetitive agreements and/or concerted practices.  If the ACCC believes gun jumping conduct has occurred, it may significantly delay its consideration of the proposed merger while it investigates.

As regards the specific clearance processes:

Informal clearance process

It is customary for merger parties seeking clearance from the ACCC to wait until the outcome of the ACCC process, since the ACCC may otherwise seek an injunction to prevent the parties from completing, or orders to unwind a transaction that it has determined will substantially lessen competition in a market.  However, there is no specific requirement for merger parties to do so and merger parties that are confident that their merger will not breach section 50 of the CCA could legally (in the absence of an injunction from a Court or a Foreign Investment Review Board review process (as to which see below)) proceed to close the merger before ACCC approval is granted.

Authorisation process

Applicants are required to give the ACCC an undertaking pursuant to section 87B of the CCA that they will not complete the proposed merger to which the authorisation relates while the ACCC is considering the application.  The ACCC can take merger parties to Court seeking orders, including financial penalties, for any breach of such an undertaking.   

If the merger parties have notified the Foreign Investment Review Board, completion before the Foreign Investment Review Board approval is a criminal offence. 

38) May the parties get permission to implement before approval?

There is no formal mechanism by which the parties can get permission to implement the transaction in Australia prior to approval. 

39) Due diligence and other preparatory steps

If appropriate controls are in place around the exchange of commercially sensitive information, parties can safely conduct the due diligence required to complete the transaction.  Normally, such controls might involve a competition protocol, and a small centralised team with whom information can be shared on a controlled basis. 

As noted above in response to topic 37, merger parties that are competitors should not proceed to take steps to integrate the businesses until after completion. 

Parties should also be mindful that any documents or communications prepared may later be obtained by the ACCC through its investigative powers to compel information under section 155 of the CCA.  

40) Veto rights before closing and "Ordinary course of business" clauses

The general prohibitions on anticompetitive conduct in the CCA will apply to the conduct of merger parties before completion, even after signing. Merger parties must therefore continue to operate their business independently, and an acquirer that competes with the target should not interfere in the competitive activities of the target.  

Clauses in merger agreements that seek to prevent the target from making independent decisions may raise competition concerns and should be reviewed carefully. Any consultation between the acquirer and the target about making business decisions could be deemed "gun-jumping" conduct by the ACCC. Not all restraints on business activities prior to completion will contravene competition laws, but legal advice should first be sought before parties sign the merger agreement and proceed to consult on such matters. 

41) Implementation outside the jurisdiction before approval – "Carve out"

Technically the ACCC may accept a "carve out" where the transaction is international or multi-jurisdictional.  The parties will need to "carve out" the acquisition of shares or assets that relate to any Australian market from completion of the transaction overseas, so that the Australian aspects of the transaction do not complete until after approval is obtained.  This is, however, very rare and is unlikely to be viewed favourably by the ACCC, particularly where global assets outside of Australia are used to supply goods or services to customers within Australia.  

42) Consequences of implementing without approval/permission

Implementation of a merger prior to completion risks breaching provisions of the CCA on anticompetitive conduct.  Moreover, completing a merger that is likely to substantially lessen competition in contravention of section 50 of the CCA can result in the Federal Court imposing penalties (among other consequences). 

Generally, the maximum penalty for a breach of section 50 and other provisions of the CCA concerning anticompetitive conduct is the greater of:

  1. AUD10 million;
  2. three times the value of the benefit of the contravention to the corporate group, if the Court can determine that value; or
  3. if the Court cannot determine that value, 10% of the annual turnover of the corporate group (excluding turnover "not connected with Australia") during the 12 months leading up to contravention (inclusive).

The maximum penalty for an individual is AUD 500,000.

Other orders that can be made by the Court if it finds a contravention include an injunction in such terms as the Court determines to be appropriate and a range of remedial orders including declaring the whole or part of a contract void, varying contracts, ordering payment of compensation, terminating leases and mortgages or requiring land to be transferred.

The process – phases and deadlines

43) Phases and deadlines

Informal clearance process

As filing is voluntary, there is no statutory deadline.  It is customary to seek informal clearance pre-completion.  The ACCC's indicative timeline is set out below. 

Phase

Duration/deadline

Pre-assessment

During this stage, the ACCC is notified or becomes aware of a proposed merger. The ACCC will likely make requests for information from the merger parties.

The ACCC will either decide to subject the merger to public review, or will pre-assess the notification without any market consultation. 

Around 2-4 weeks

Confidential review

If the ACCC determines that it cannot clear a merger in the pre-assessment phase, and the merger is confidential (and cannot be subject to public market inquiries), the ACCC may conduct a confidential review at the parties' request. 

Around 2-4 weeks

Public Review – Phase I

During this phase, the ACCC will engage in market inquiries and set an indicative timeline for its decision making process. The merger parties will have an opportunity to make submissions to the ACCC and to respond to any market feedback that the ACCC receives. 

The ACCC will either make a determination to approve the merger or to initiate a phase II investigation of the merger.

Mergers that are complex or raise several competition concerns will often lead to a Phase II review. 

Around 6-12 weeks

Public Review – Phase II

If the ACCC has determined that it cannot make a final determination in Phase I, it will publish a Statement of Issues which outlines the ACCC's preliminary competition concerns. A new timeline and decision date will be set for the review. 

The ACCC will then undertake further consultation and may work with the parties to determine whether appropriate remedies such as divestments may alleviate the concerns. The parties will be given an opportunity to respond to any of the ACCC's concerns. 

The merger is then either approved, approved conditionally or with undertakings from the merger parties, or opposed. 

Around 6-12 weeks. 

 

Authorisation process

An authorisation cannot be granted for past conduct, so it is necessary for a party seeking authorisation to apply for and obtain authorisation prior to completion. The CCA requires the ACCC to consider a merger authorisation application within 90 days of the application being lodged.  The applicant may agree to extend the timeframe. The ACCC must make a determination either granting authorisation, granting authorisation subject to conditions or denying authorisation.  If the ACCC does not make a determination within 90 days (or within the extended time period as agreed), the application is taken to be refused. 

The general steps in the merger authorisation process are as follows:

  1. Proposed acquirer usually consults with the ACCC prior to lodgement.
  2. Proposed acquirer lodges application, including relevant documents.
  3. ACCC assesses validity of application.
  4. ACCC conducts market inquiries, invites submissions from interested third parties and seeks further information from the applicant.
  5. ACCC provides market feedback to the applicant.
  6. ACCC consults with such persons as it considers reasonable and appropriate.
  7. ACCC issues determination or the ACCC is taken to have refused authorisation (determination to be reached no later than day 90 unless extended by agreement).
Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The ACCC will assess whether a merger is likely to "substantially lessen competition" in any market through an "effect on competition" test.  A counterfactual approach is used, which involves a comparison of the likely state of competition in the future if the merger did not proceed, with the likely state of competition if the merger did proceed as proposed. The ACCC refers to this test in its Merger Guidelines as the "future with and without" test. 

As noted in response to topic 3 above, section 50 of the CCA prohibits any acquisition of shares or assets which would have or would be likely to have the effect of substantially lessening competition in a market in Australia.  The following (non-exhaustive) matters must be taken into account when assessing whether a merger will breach section 50:

  • the actual and potential level of import competition in the market;
  • the height of barriers to entry to the market;
  • the level of concentration in the market;
  • the degree of countervailing power in the market;
  • the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
  • the extent to which substitutes are available in the market or are likely to be available in the market;
  • the dynamic characteristics of the market, including growth, innovation and product differentiation;
  • the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor; and 
  • the nature and extent of vertical integration in the market.

45) May any non-competition issues be considered?

A merger or acquisition that has the likely effect of substantially lessening competition will generally be prohibited regardless of any efficiencies or other non-competition benefits that may flow from the transaction.

However, under the authorisation process, the ACCC may authorise a merger if it considers that the public benefits arising from the transaction outweigh its detrimental effect on competition.  When assessing public benefits, the ACCC focuses primarily on efficiencies, but other benefits unrelated to competition have previously been taken into account, including environmental benefits or improved safety standards.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures involving the acquisitions of shares or assets is the same as for other mergers.

47) Decisions and remedies/commitments available

Parties are able to offer the ACCC a court enforceable undertaking under section 87B of the CCA to address competition concerns arising from a proposed merger.  A common form of undertaking in the merger context is an undertaking that one of the parties will divest part of its or the target's business or assets to preserve competition in a market where the parties' activities overlap.  The ACCC has also previously accepted behavioural undertakings before clearing a merger, although less frequently.

A public register of section 87B undertakings is available on the ACCC's website.

Publicity and access to the file

48) How and when will details about the merger be published?

Informal clearance process

The ACCC will not typically give any indication it is reviewing a merger during the pre-assessment phase of its informal clearance process (although it may do so when it is "monitoring" a merger that has been publicly announced).  If a merger is cleared during pre-assessment, the ACCC would not typically publish any information indicating that it has pre-assessed the merger. Normally, only the merger parties will be notified of the decision. 

If the ACCC cannot clear the merger during pre-assessment, the ACCC would ordinarily open a case page on its website upon the commencement of a Phase 1 review and publish, at the same time or shortly thereafter, a market inquiries letter.  

If the merger is not cleared following the Phase 1 review, the ACCC will publish a Statement of Issues, outlining its preliminary competition concerns, which will seek further market feedback. It would usually also publish a media statement at the same time. 

The ACCC will then ultimately publish its final decision to either approve or oppose the merger upon completion of the Phase 2 review.  

Neither the parties' submissions nor any feedback received from third parties are made public at any stage during the pre-assessment, Phase1 or Phase 2 processes.

Authorisation process

The CCA requires that the ACCC record certain information on its public register. For authorisations, this includes:

  • the application (even where it has been withdrawn or abandoned);
  • any variations, revocations or substitutions, documents and submissions provided to the ACCC; 
  • particulars of any oral submissions; and
  • the final determination.  

Parties may request that confidential documents or submissions be excluded from the register in whole or part at the time that the document or submission is provided to the ACCC.  Any such request will need to comply with the Competition and Consumer Regulations 2010, including that reasons are provided for the request, and that the documents are appropriately marked with the words 'Restriction of Publication of Part Claimed'. 

Any materials that are subject to a request for exclusion will not be placed on the register while the claim is being assessed.  Where a request is refused, parties will be granted one or two business days to respond and if the information is not withdrawn, the ACCC will publish it on the register.  Any public submissions received by the ACCC will be placed on the register as soon as possible, 

More information is available in the ACCC's Guidelines for excluding confidential information from the public register for authorisation (merger and non-merger) and notification processes

49) Access to the file for the merging parties and third parties

The merging parties:

Informal clearance process

There is no process available to merger parties to access the ACCC's "file" as of right, but if litigation results from the ACCC's review then documents may be produced to the merger parties pursuant to section 157 of the CCA or Court discovery processes.

Authorisation process

The ACCC allows applicants to request, pursuant to section 157 of the CCA, that the ACCC provide a copy of all the documents provided to or obtained by the ACCC, or in the possession of the ACCC, that has come to its attention in connection with the application and which support the applicant's case.  There are several exceptions to this, for example, where the documents were prepared by the ACCC or were provided to the ACCC by the applicant. 

Further, pursuant to section 89(4) of the CCA, the ACCC is required to keep a public register of: 

  • applications for authorisations, minor variations, revocations and substitutions of applications;
  • documents and submissions provided to the ACCC in connection with an application;
  • the particulars of any oral submissions made; and

the determinations and statement of reasons provided by the ACCC. The register is available on the ACCC's website.

Third parties:

Informal clearance process

Third parties do not have a right to access the ACCC's "file" in the informal clearance process.

Authorisation process

The ACCC allows third parties to request, pursuant to section 157 of the CCA, that the ACCC provide a copy of all the documents provided to or obtained by the ACCC, or in the possession of the ACCC, that has come to its attention in connection with the application and which support the third party's case.  There are several exceptions to this, for example, where the documents were prepared by the ACCC or were provided to the ACCC by the applicant.

Judicial review

50) Who can appeal and what may be appealed?

Where the ACCC has issued a decision to oppose a merger in an informal merger clearance, the merger parties (or a person with an interest in the merger) may seek a declaration from the Federal Court of Australia that the proposed transaction does not have the effect or likely effect of substantially lessening competition in a market in Australia. There is no right of appeal from the ACCC's decision itself, since it is an informal decision rather than a decision made pursuant to statute.

In terms of merits review, the merging parties can appeal any administrative decisions made by the ACCC to the Australian Competition Tribunal. The Tribunal may also review on its merits any determination made by the ACCC in a merger authorisation decision. Thereafter, any substantive questions of law arising from the Tribunal's decision can be appealed to the Full Federal Court. 


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