Reforming Australia’s Merger Regime
Julie Clarke, ‘Reforming Australia’s Merger Regime’
(2021) 29(4) Australian Journal of Competition and Consumer Law 285-296
First paragraph
Australia’s merger control regime has returned to the spotlight following recent statements by Rod Sims, Chair of Australia’s Competition and Consumer Commission (ACCC), that Australia’s current merger laws are “‘failing to adequately protect competition”’.[1] Concern about the effectiveness of merger laws in preventing anti-competitive structural changes is not new, nor is it confined to Australia. There has been a flurry of international statements,[2] reviews[3] and legislative measures[4] directed toward addressing increases in market concentration and highlighting the challenges of predictive tests involving the acquisition of nascent competitors in dynamic markets.[5]
Publisher page
Footnotes
[1] Rod Sims, “‘Protecting and promoting competition in Australia”’ (Speech, Competition Law Workshop, 27 August 2021) <https://www.accc.gov.au/speech/protecting-and-promoting-competition-in-australia>.
[2] See, eg, ACCC, CMA and Bundeskartellamt, ‘Joint Statement on Merger Control Enforcement’ (20 April 2021) <https://www.accc.gov.au/publications/joint-statement-on-merger-control-enforcement>. See also Rob Nicholls, “‘Merger mMovements: International cCo-ordination of mMerger cClearance pPolicy”’ (2021) 49 ABLR 145.
[3] For example, Jacques Crémer, Yves-Alexandre de Montjoye, and Heike Schweitzer, “Competition pPolicy for the dDigital eEra” (European Commission, Directorate-General for Competition, 2019) (Crémer Report); Jason Furman et al, Diane Coyle, Amelia Fletcher, Philip Marsden and Derek McAuley, “Unlocking Digital Competition” (Report of the Digital Competition Expert Panel, United Kingdom, March 2019) (Furman Report), Stigler Committee on Digital Platforms, Final Report (2019) (Stigler Report).
[4] For example, in the United Kingdom a series of reforms have been proposed: see Department for Business, Energy & Industrial Strategy, Reforming competition and consumer policy (July 2021) and Department for Digital, Culture, Media & Sport and Department for Business, Energy & Industrial Strategy, A new pro-competition regime for digital markets (July 2021), including a proposal for a bespoke merger regime administered by the Competition and Markets Authority.
[5] See generally ACCC, Digital Platforms Inquiry – Final Report (2019) at 106 (‘Digital Platforms Report’) and Joshua Sinn, “‘Managing Nascent Digital Competition: An Assessment of Australian Merger Law under Conditions of Radical Uncertainty”’ (2021) 44(3) UNSW Law Journal 919.