Overview

 
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Australia's competition laws prohibit acquisitions which have, or would be likely to have, the effect of substantially lessening competition in any market. There is no requirement that a controlling interest be acquired and asset acquisitions alone are sufficient where they will produce an anti-competitive effect. Consequently, for example, acquisitions of land, intellectual property rights or other non-controlling interests which produce the necessary anti-competitive result may be caught.

Mergers or acquisitions which would otherwise be prohibited may be 'authorised' in advance where the parties can demonstrate a public benefit which would outweigh the likely anti-competitive detriment associated with the merger or where it can be shown the merger would not substantially lessen competition.

There are no mandatory pre-merger notification requirements in Australia's competition laws. However, in practice, parties are encouraged to - and do - notify the Australian Competition and Consumer Commission (ACCC) about proposed mergers which may raise competition concerns. This process is informal and ACCC approval does not provide assurances against subsequent third party litigation.

Proposals for reform

The ACCC has recently proposed reforms to the merger review process, claiming that the current laws and processes are no longer fit for purpose.

In a speech to the National Press Club in April 2023, ACCC Chair, Gina Cass-Gottlieb, proposed significant changes:

Process

  • move from a voluntary enforcement model to formal suspensory clearance model, including mandatory notification of mergers above specified thresholds and a call-in option for mergers that do not meet the threshold but raise competition concerns (conversely parties could apply for notification waivers in cases of non-contentious merger proposals);

  • parties would be required to demonstrate to the ACCC (or the Tribunal on appeal) that their transaction would not be likely to substantially lessen competition before the merger would be cleared;

  • if a merger is not cleared on competition grounds parties could subsequently apply for clearance on public benefit grounds;

  • the Australian Competition Tribunal would be the review body for ACCC clearance and public benefit authorisation decisions; the Federal Cour would consider applications for declaration and judicial review and in cases involving transactions that do not trigger notification thresholds.

Law

  • legislation to explicitly provide that substantial lessening of competition includes ‘entrenching, materially increasing or materially extending a position of substantial market power’

  • adding new ‘merger factors’ that must be taken into account when assessing mergers, including:

    • impacts on the height of barriers to enry;

    • loss or actual or potential competitive rivalry

    • increased access to, or control of data, technology or other significant assets;

    • whether the acquisition is part of a series of relevant acquisitions; and

    • whether the acquisition entrenches or extends a position of substantial market power.

Legislation

 

Prohibited conduct

 

The prohibition

Section 50 of the Competition and Consumer Act 2010 prohibits the direct or indirect acquisition of shares or assets where the acquisition would have, or be likely to have, the effect of substantially lessening competition in any market.

In addition, section 50A deals with mergers occurring outside Australia; however, because section 50 is broad enough to cover most anti-competitive mergers producing anti-competitive effects in Australia, this provision has not been used in practice.

Acquisition of shares or assets

There is no requirement that a controlling interest be acquired and asset acquisitions alone are sufficient where it will produce an anti-competitive effect. Consequently, for example, acquisitions of land, intellectual property rights or other non-controlling interests which produce the necessary anti-competitive result may be caught.

Substantial lessening of competition

The current substantial lessening of competition test has applied since 1992. There have, however, only been two Federal Court decisions applying the provision and there is no High Court authority. The necessary level of proof required to demonstrate a proposed merger would substantially lessen competition is unclear following the Full Federal Court's decision in Metcash.

Before an assessment can be made about whether a merger is likely to substantially lessen competition, it is necessary to assess what is likely to happen in the future both with and without the merger (the counterfactual or “future without” and “future with” tests). At trial in Metcash Justice Emmett considered that it was necessary for the ACCC to establish 'on the balance of probabilities' what the 'future state of the market will be, both with and without the proposed acquisition' (para 145), but that if this can be established then it is sufficient to demonstrate that there is a 'real chance' that the proposed acquisition would result in a substantial lessening of competition (para 146). Relying on the decision in AGL at [348] Justice Emmett noted that (at para 136) 'does not encompass mere possibility' but requires assessment 'at a level that is commercially relevant or meaningful'. In Metcash the ACCC had argued multiple counterfactuals and Justice Emmett concluded they were not entitled to succeed unless the Court finds (para 146):

  • that it is more probable than not that one of the Commission’s counterfactuals will come to pass if the proposed acquisition does not proceed; and

  • that there is a real chance that, if the proposed acquisition does proceed, that would result in a substantial lessening of competition compared to the scenario in which one of those counterfactuals comes to pass.

On appeal to the Full Federal Court, Justice Buchanan disagreed with the trial judge, noting that, in his view, the 'real chance' test should not be applied at all to the application of s 50 [at para 25], instead expressing the view that it is necessary to establish likely substantial lessening of competition 'on the balance of probabilities' (para's 35 and 40). In separate judgments, the two other Federal Court judges did not reach a concluded view on the matter.

Substantial lessening of competition: matters to consider (s 50(3))

When assessing whether or not competition would be substantially lessened as a result of the merger or acquisition, the Court must consider the following factors (section 50(3)):

(a) the actual and potential level of import competition in the market;

(b) the height of barriers to entry to the market;

(c) the level of concentration in the market;

(d) the degree of countervailing power in the market;

(e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;

(f) the extent to which substitutes are available in the market or are likely to be available in the market;

(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;

(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;

(i) the nature and extent of vertical integration in the market.

This list is non-exhaustive with the result the Court may consider other relevant factors.

Relevant market

Subsection 50(6) provides that:

market means a market for goods or services in:

(a) Australia; or

(b) a State; or

(c) a Territory; or

(d) a region of Australia.

In addition, section 4E states:

For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.

Although territorially defined, there is case law in relation to other competition law provisions that suggests a global or regional market may be a market for purposes of section 4E: Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136 (2 October 2009). Given the existence of s 50(6) it is unclear whether or not such a broad market may be defined for purposes of the merger provision. However, even if a global market is artificially contained to Australia, the competition analysis will enable this to be assessed in the broader global context.

The Courts have recently emphasised the need for market definition to 'reflect commercial reality, rather than be driven by economic theory' (Justice Buchanan in Metcash para 10)

International mergers

Section 50A applies where the acquiring corporation is foreign and does not carry on business in Australia. However, asthe extraterritorial breadth of s 50 is wide enough to capture more mergers involving foreign corporations. s 50A is not used in practice.

Merger notification and authorisation (and gun jumping)

 

Informal notification and clearance

Parties to mergers having the potential to raise competition concerns generally 'informally' notify the ACCC of the merger and usually will not close during this time. The ACCC may

  • indicate it will not challenge the merger

  • indicate it will oppose the merger

  • indicate it will provide clearance subject to the provision of court enforceable undertakings designed to alleviate competition concerns.

Parties are assisted by the ACCC's Merger Guidelines, both for substantive analysis and procedure. The ACCC publishes public competition assessments for mergers which are opposed or are otherwise of public interest (see merger cases page).

In August 2017 the Chairman of the ACCC, Rod Sims announced that the ACCC would be taking a more documentary-heavy approach to evidence gathering in contentious merger cases, including more s 155 notices which would push out timelines in those cases. See further:

Authorisation

Parties may seek authorisation from the ACCC for an acquisition pursuant to s 88 of the CCA. This must occur before the acquisition takes place.

The ACCC will be able to grant authorisation if either they are satisfied the proposed merger will not substantially lessen competition or it will produce a benefit to the public that would outweigh any public detriment. This test is contained in s 90 of the Act.

The first authorisation application since the ACCC gained this new power was successful in 2019:

AP Eagers Limited proposed acquisition of Automotive Holdings Limited
Granted conditional authorisation
(conditioned on certain divestitures agreed pursuant to court enforceable undertaking)

Note: between 2007-2017 the Australian Competition Tribunal had original jurisdiction to hear merger authorisations; now it is the ACCC that hears authorisation claims at first instance with the possibility of appeal to the Tribunal. During the 10 year period three mergers were authorised; the Tribunal did not refuse authorisation in any case.

During the 10 year period in which the Tribunal had this power there three successful and no unsuccessful applications for authorisation:

  1. Application by Murray Goulburn Co-Operative Co Limited for Merger Authorisation (withdrawn in 2013 before being heard).

  2. Application by AGL Energy Limited for merger authorisation (proposed acquisition of Macquarie Generation) (24 March 2014). On 25 June 2014 the Tribunal granted authorisation for the proposed acquisition.

  3. Application by Sea Swift Pty Limited for merger authorisation (proposed acquisition of certain Toll Marine Logistics assets) (made and withdrawn in 2015; new application 2016). On 1 July 2016 the Tribunal granted authorisation (subject to conditions)

  4. Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017) (authorised subject to condition that Tabcorp divest Odyssey Gaming business in Queensland (20 June 2017)) (note original application was subject to successful judicial review; the matter was returned to the Tribunal for reconsideration and authorisation granted (again) on 17 November 2017)

Section 4 now defines merger authorisation in the following terms

merger authorisation means an authorisation that:

(a) is an authorisation for a person to engage in conduct to which section 50 or 50A would or might apply; but

(b) is not an authorisation for a person to engage in conduct to which any provision of Part IV other than section 50 or 50A would or might apply.

overseas merger authorisation means a merger authorisation that is not an authorisation for a person to engage in conduct to which section 50 would or might apply.

Gun jumping

Notification is not-compulsory in Australia and the voluntary informal clearance process is non-suspensory. However:

Merger guidelines

 
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Although there is no mandatory reporting obligation for proposed mergers in Australia, parties proposing to merge generally do notify the ACCC when proposing to merge and rely upon both the analytical and process guidelines produced by the ACCC to inform this process.

The current applicable guidelines for mergers in Australia are:

Merger Guidelines (2008) (analytical)

ACCC Merger Guidelines (November 2008) (analytical) ➤
Final Guidelines released 21 November 2008 and replace the 1999 Guidelines ➤

Notification

Notification remains voluntary in Australia, but the ACCC encourages parties to notify the ACCC in advance of completing a merger where (a) 'the products of the merger parties are either substitutes or complements' and (b) 'the merged form will have a post-merger market share of greater than 20 per cent in the relevant market/s' (p 9 Guidelines). 

Competition

The Guidelines note, at 3.1, that competition is 'a state of ongong rivalry between firms'. Only mergers which substantially lessen competition are prohibited by s 50. The Guidelines (at 3.14) note that section 50 requires 'forward-looking' analysis into effect or likely effect of a merger and the ACCC will focus on the 'foreseeable future' - normally one to two years - when considering market definition and the factors set out in s 50(3). The future 'with and without' test used to assess likely the impact of a merger on competition is discussed on page 13 of the guidelines. The ACCC's treatment of failing firm arguments is dealt with on page 14 of the Guidelines. 

Market definition

Chapter 4 of the Guidelines discusses the ACCC's approach to market definition, noting that the ACCC's starting point will be to identify 'the products and geographic regions actually or potentially supplied by the merger parties' and then focusing on 'defining markets in areas of activity where competitive harm could occur' (page 16). Substitutes are then considered. The ACCC will apply the hypothetical monopolist test (HMT) to help define the relevant markets (see pages 17-18) - although it will not apply it strictly, but rather as an 'intellectual aid'. Page 19 of the Guidelines sets out somr of the information the ACCC will rely on to assess substitution possibilities.

The relevant market must be a 'substantial market in Australia, a state, territoru or region of Australia' (s 50(6)). The ACCC notes that it considers that it is possible for a 'small' market to nevertheless still be 'substantial' (at 4.29). In particular, it is noted that a market might be geographically small but nevertheless 'substantial within the region in which it is located' (at 4.30).

The Guidelines consider issues that might arise in market definition (such as product differentiation and indirect substitution) at pages 20-23.

Unilateral effects

Chapter 5 is devoted to unilateral effects. Para 5.4 acknowledges that vertical and conglomerate mergs will normally be less likely to raise competition concerns than horizontal mergers; the chapter is, therefore, divided in to sections on horizontal mergers and non-horizontal mergers. In relation to non-horizontal mergers, the Guidelines note that the ACCC will only be concerned with non-horizontal mergers 'where the merged firm has the ability and incentive to use its position in one market to anti-competitively foreclose rivals in another market in a way that lessens competition' (para 5.22) and, in determining whether foreclosure would be likely to increase unilateral power of the merged firm the ACCC will consider (1) 'the merged firm's ability to foreclose', (2) any incentive the merged firm may have to foreclose' and (3) 'the likely effect of any such foreclosure'. 

Coordinated effects

Chapter 6 deals with the potential for mergers to lessen competition through coordinarted effects.

 Merger factors

Chapter 7 deals with each of the factors set out in s 50(3) which must be considered in determining whether a merger would substantially lessen competition.

The first section discusses concentration and market share. The 1999 Guidelines applied a test based solely on market share; the new Guidelines take into account the Herfindahl-Hirschman Index (HHI) in assessing market concentration (see para 7.9 and 7.12-7.16). The ACCC is 'less likely to identify horizontal competition concerns when the post-merger HHI is: * less than 2000, or * greater than 2000 with a delta less than 100. (para 7.14; calculating HHI and delta is set out at 7.13).

Other sections discuss barriers to entry, actual and potential import competition, availability of substitutes, countervailing power,dynamic characteristics of the market, removal of a vigorous and effective competitor, vertical integration, ability to increase prices or profit margins and other factors. Othe factors include efficiencies which are discussed at p 51-52. The Guidelines note, at 7.65, that "The ACCC generally only considers merger-related efficiencies to be relevant to s 50 merger analyses where it involves a significant reduction in the marginal production cost of th merged firm and there is clear and compelling evidence that the resulting efficiencies directly affect the level of competition in a market and these efficiencies will not be dissipated post-merger".

Undertakings

Appendix 3 sets out the circumstances in which it might accept undertakings to alleviate competitive concerns raised by a merger.

Merger Review Process Guidelines (2013)

ACCC Informal Merger Review Process Guidelines 2013 ➤
(Updated 2017 to reflect Harper reforms)

See also Peter Campbell, 'New ACCC Merger Process Guidelines' (July 2013) ➤

Merger authorisation Guidelines (2017-2018)

Merger authorisation guidelines 2018
On 31 October 2017 the ACCC released Guidelines on merger authorisations for consultation. These were replaced with new Merger Authorisation Guidelines published on 24 October 2018.

The Guidelines follow the reforms to the merger provisions that came into operation on 6 November 2017 following recommendations in the Harper Report. ☞ As part of those reforms the power to grant authorisation reverted to the ACCC (previously it was with the Tribunal).

Media Mergers Guidelines (2017)

Media merger guidelines 2017 ➤
(replaced the 2006 Media Merger Guidelines)

Penalties for contravention and private remedies

 

Application may be made to the Federal Court for the following:

  • Injunction (section 80) (only the ACCC or Minister)

  • Pecuniary penalties for breach (section 76)

  • Divestiture (section 81)

  • Damages (by persons who suffer loss and damage as a result) (six year limitation period) (section 82)

  • Disqualification from directorship (section 86E)

  • Non-punitive orders (such as community service order) (section 86C)

  • Other orders (Court may make 'such orders as it thinks appropriate' (section 87)

View penalties page for details.

In addition, the ACCC may accept enforceable undertakings pursuant to s 87B. These are utilized by the ACCC to alleviate competition concerns in some merger cases.

Note that the ACCC has no power to block a merger; this power resides solely with the Federal Court of Australia.

Cases

 

History

 

History in brief

There have been several reviews into Australian merger law and regulation.

The original 1974 Act prohibited the acquisition of assets and shares, which resulted in a substantial lessening of competition in a market for goods or services. Only three years later, this test was replaced with a market dominance test; mergers were only prohibited where they resulted in or substantially strengthened a ‘position to control or dominate a market’.

In 1989 the Griffiths Committee recommended retaining the dominance test; shortly thereafter, in 1991, the Cooney Committee recommended a substantially lessen competition test. The Cooney Committee recommendation resulted in legislative change in 1992, returning the test to one of 'substantial lessening of competition' and introducing a non-exhaustive list of matters the Court must consider in making this assessment (s 50(3))

In 2002, numerous submissions were made to the Dawson Committee recommending that the substantive test for mergers change back to one of dominance, incorporate an ‘efficiency’ test or incorporate a public benefit test. The Dawson Committee recommended that the substantive test of ‘substantial lessening of competition’ be retained and this was accepted by the government; there has been no change to the substantive test since 1992 other than the following changes, which have had no demonstrable impact on the provision, in 2011:

  • changing the reference to 'a market' in section 50(1) with 'any market'

  • removing the requirement in subsection 50(6) that a market (for purposes of mergers) must be a 'substantial' market

Procedurally, the Dawson Committee made recommendations relating to merger clearance and authorisation processes which came into effect in 2007. In particular, the power to hear merger authorisation claims at first instance moved from the ACCC to the Tribunal and a formal merger clearance process was introduced, to operate in parallel with the successful informal process.

In 2014-2015 an independent review of Australia's competition law and policy (the Harper Review) recommended that the current substantive test for mergers be retained. However, it made significant recommendations in relation to process; in particular, it recommended combining the formal clearance process and the authorisation process (retaining the informal process) and giving the power back to the ACCC to make a determination on formal applications at first instance.

The Government accepted these recommendations in 2015 and, in 2017, legislation was passed to give effect to the changes and they came into operation on 6 November 2017.

Original prohibition (1974)

Section 50

(1) A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate where the acquisition is likely to have the effect of substantially lessening competition in a market for goods or services.

(2) This section does not apply to an acquisition of assets of a body corporate in the ordinary course of business.

(3) Where-

(a) a corporation has entered into a contract to acquire shares in the capital, or assets, of a body corporate;

(b)  the contract is subject to a condition that the contract will not come into force unless and until-

(i)  the corporation is granted an authorization to acquire the shares or assets; or

(ii)  sub-section 94 (3) applies in relation to the acquisition of the shares or assets; and

(c)  the corporation applied for the grant of such an authorization, or gave a notice of the proposed acquisition to the Commission under sub-section 94 (1), before the expiration of 7 days after the contract was entered into or the expiration of 14 days after the commencing date, whichever was the later,an acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before-

(d)  in a case where the corporation applied for the grant of an authorization-the application for the authorization is disposed of;

(e)  in a case where the corporation gave a notice to the Commission under sub-section 94 (1)-

(i)  the Commission gives notice to the corporation as mentioned in paragraph 94 (3) (a); or

(ii)  a period of 30 days elapses after the corporation gave the notice to the Commission; or

(f)  the contract ceases to be subject to the condition, whichever first happens.

(4) For the purposes of sub-section (3), an application for an authorization shall be taken to be disposed of-

(a)  in a case to which paragraph (b) of this sub-section does not apply-at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or

(b)  if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization-at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.

Following 1977 amendments

Section 50 Mergers

(1) A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate if-

(a) as a result of the acquisition, the corporation would be, or be likely to be, in a position to control or dominate a market for goods or services; or

(b) in a case where the corporation is in a position to control or dominate a market for goods or services-

(i) the body corporate or another body corporate that is related to that body corporate is, or is likely to be, a competitor of the corporation or of a body corporate that is related to the corporation; and

(ii) the acquisition would, or would be likely to, substantially strengthen the power of the corporation to control or dominate that market.

(2) If-

(a) a body corporate that is related to a corporation is, or two or more bodies corporate each of which is related to the one corporation together are, in a position to control or dominate a market for goods or services; or

(b) a corporation, and a body corporate that is, or two or more bodies corporate each of which is, related to that corporation, together are in a position to control or dominate a market for goods or services,

the corporation shall be deemed for the purposes of this section to be in a position to control or dominate that market.

(3) In this section-

(a) a reference to a market for goods or services shall be construed as a reference to a substantial market for goods or services in Australia or in a State; and

(b) a reference to controlling or dominating a market for goods or services shall be construed as a reference to controlling or dominating such a market either as a supplier or as an acquirer of goods or services in that market.

(4) Where-

(a) a corporation has entered into a contract to acquire shares in the capital, or assets, of a body corporate;

(b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the corporation has been granted an authorization to acquire the shares or assets; and

(c) the corporation applied for the grant of such an authorization before the expiration of 14 days after the contract was entered into, the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before-

(d) the application for the authorization is disposed of; or

(e) the contract ceases to be subject to the condition, whichever first happens.

(5) For the purposes of sub-section (4), an application for an authorization shall be taken to be disposed of-

(a) in a case to which paragraph (b) of this sub-section does not apply-at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or

(b) if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization-at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.

Following 1992 amendments

Trade Practices Legislation Amendment Act 1992 (Section 6)

Prohibition of acquisitions that would result in a substantial lessening of competition

Section 50 of the Principal Act is amended:

(a) by omitting subsections (1) to (3) (inclusive) and substituting the following subsections:

"(1) A corporation must not directly or indirectly:

(a) acquire shares in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.

"(2) A person must not directly or indirectly:

(a) acquire shares in the capital of a corporation; or
(b) acquire any assets of a corporation;

if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.

"(3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:

(a) the actual and potential level of import competition in the market;

(b) the height of barriers to entry to the market;

(c) the level of concentration in the market;

(d) the degree of countervailing power in the market;

(e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;

(f) the extent to which substitutes are available in the market or are likely to be available in the market;

(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;

(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;

(i) the nature and extent of vertical integration in the market.";

(b) by omitting from paragraph (4)(a) "capital, or assets, of a body corporate" and substituting "capital of a body corporate or assets of a person";

(c) by adding at the end of the following subsection:

"(6) In this section:
'market' means a substantial market for goods or services in Australia, in a State or in a Territory.".

 

Harper reforms (2017)

No substantive change

  • Authorisation power resides with ACCC at first instance (appeal to Tribunal)

  • Authorisation can be granted either on competition or public benefit grounds (same test as for other provisions; no separate considerations for mergers)

  • No 'formal clearance' process

Reports

 

See merger reports page for details of each of the Australian reports discussing section 50 (mergers) and for key international/foreign reports.

Swanson Committee 1976

The Swanson Committee considered that the merger law, as originally enacted, was too 'sweeping' in its application. It recommended a threshold test for application of the provision (to be initially set at $3m). Although this change was not brought in, the Act was amended in 1977 and converted the original

Griffiths Committee 1989

In 1989, the House of Representative Standing Committee on Legal and Constitutional Affairs (the Griffiths Committee) recommended retaining the dominance test in its report ‘Mergers, Takeovers and Monopolies: Profiting From Competition?’. However, no such change was introduced.

Cooney Committee 1991

In 1991, the Cooney Committee recommended a substantially lessen competition test. The Cooney Committee recommendation resulted in legislative change in 1992, returning the test to one of 'substantial lessening of competition' and introducing a non-exhaustive list of matters the Court must consider in making this assessment (s 50(3))

Review of draft merger guidelines 1998

Ahead of the publication of the 1998 Merger Guidelines (now replaced by 2008 Guidelines) a review was conducted by the Industry Commission. See:

Merger Regulation: A review of the draft merger guidelines administered by the Australian Competition and Consumer Commission (1996)
Report of the Industry Commission

Dawson Committee 2003

In 2002, numerous submissions were made to the Dawson Committee recommending that the substantive test for mergers change back to one of dominance, incorporate an ‘efficiency’ test or incorporate a public benefit test. The Dawson Committee recommended that the substantive test of ‘substantial lessening of competition’ be retained and this was accepted by the government.

Procedurally, the Dawson Committee made recommendations relating to merger clearance and authorisation processes which came into effect in 2007. In particular, the power to hear merger authorisation claims at first instance moved from the ACCC to the Tribunal and a formal merger clearance process was introduced, to operate in parallel with the successful informal process.

See Dawson Committee Report - Chapter on Mergers (2003)

Harper Report 2015

In 2014-2015 an independent review of Australia's competition law and policy (the Harper Review) recommended that the current substantive test for mergers be retained. However, it made significant recommendations in relation to process; in particular, it recommended combining the formal clearance process and the authorisation process (retaining the informal process) and giving the power back to the ACCC to make a determination on formal applications at first instance. The Government accepted these recommendations in 2015 and in 2017 legislation was passed to give effect to the changes in 2017.

ACCC Ex post review of ACCC merger decisions 2022

Report reviewing select mergers that were not opposed by the ACCC between 2017-2019.

The report was released on 25 February 2022.

See Ex post review of ACCC merger decisions

International and Supranational Reports and Guidance (select)

Europe

DG Comp, EC, Merger Remedies Study (October 2005)

International Competition Network

Recommendations

ICN Guiding Principles for Merger Notification and Review ➤
Adopted at 2002 Annual Conference (First Annual Conference, Naples, Italy, 28-29 Sept 2002)

ICN Recommended Practices for Merger Notification and Review Procedures ➤
Adopted at First Annual Conference, Naples, Italy (September 28-29, 2002). Revised and/or comments added: Second Annual Conference, Mérida, Mexico (June 23-25, 2003); Third Annual Conference, Seoul, Korea (April 21-22, 2004); Fourth Annual Conference, Bonn, Germany (June 5-8, 2005); Fifth Annual Conference, Cape Town, South Africa (May 3-5, 2006)

ICN Recommended Practices for Merger Analysis ➤
Adopted at Seventh Annual Conference, Kyoto, Japan (April 14-16, 2008). Revised Eighth Annual Conference, Zurich, Switzerland (June 3-5, 2009) and Ninth Annual Conference, Istanbul, Turkey (April 27-29,2010)

Reports

ICN Merger Working Group Interim Report on the Status of the International Merger Enforcement Cooperation Project  ➤(13th Annual Conference, Marrakech, April 2014)

Merger Working Group Comprehensive Assessment 2010-2011 ➤
The Merger Working Group, 10th Annual Conference of the ICN, The Hague, Netherlands, May 2011

ICN Information Requirements for Merger Notification (June 2009) ➤
Prepared by the Notification & Procedures Subgroup and presented at the 8th Annual Conference, Zurich, Switzerland, June 2009

Setting Notification Thresholds for Merger Review ➤
Seventh Annual Conference,Kyoto, Japan, 14-16 April 2008

Defining Merger Transactions for Purposes of Merger Review (2007) ➤
Presented at Sixth Annual Conference, Moscow, Russia (May-June 2007)

Merger Remedies Review Report ➤
From the Fourth Annual Conference, Bonn, Germany (June 2005)

ICN Implementation of the ICN Recommended Practices for Merger Notification (April 2005) ➤

ICN Merger Notification Filing Fees (April 2005) ➤
Developed by Merger Notification & Procedures subgroup - report (27 pages) discusses the various types of filing fee regimes.

ICN Merger Remedies Review Report (June 2005) ➤
Developed by ICN Merger Working Group: Analytical Framework Subgroup for the fourth ICN annual conference, Bonn (59 pages)

ICN Report on the Costs and Burdens of Multijurisdictional Merger Review (November 2004) ➤
Prepared by Mergers Working Group: Notification and Procedures Subgroup (26 pages)

ICN Report on Merger Guidelines (April 2004) ➤
This links to the overview chapter of the Project on Merger Guidelines prepared by the ICN Merger Working Group: Analytical Framework Subgroup for the third ICN annual conference in Seoul. Other chapters are: Market Definition, Unilateral effects, Coordinated Effects, Barriers to entry and expansion and Efficiencies. ➤

ICN Merger Investigative Techniques Compendium of Investigative Tools ➤
Report setting out results from a 2002 questionnaire submitted to ICN members - second annual conference, Merida, Mexico (June 2003)

NGA Report on Implementation of ICN Recommended Practices for Merger Notification Procedures ➤
Analyses from a survey of agencies and private practices how recommended practices on notification procedures are implemented.

NGA Survey - Jurisdictional Matrix of Merger Laws ➤

ICN The Analytical Framework for Merger Control 2002 ➤
Discussion paper produced for First Annual Conference, Naples, Italy (28-29 September 2002). Related the this, the following country exemplars were produced:

Australia Exemplar - Allan Fels, Merger Law in Australia (11 September 2002) ➤

Germany Exemplar (Bundeskartellamt) ➤

South Africa Exemplar ➤

United States Exemplar ➤

ICN Framework for Merger Review Cooperation ➤
Document undated, but uploaded to ICN site 12 June 2012

ICN Model Confidentiality Waiver (Mergers) (Discussion Paper) ➤
Developed by Merger Notification & Procedures subgroup. Illustrative agency waiver forms.

 

OECD

Reports

OECD 2013 Report on the OECD/ICN Survey on International Enforcement Cooperation ➤
DAF/COMP/WP3(2013)2, Working Party No 3 on Co-operation and Enforcement. 26 February 2013. See also Executive Summary of the Report. ➤

OECD 1999 Report on Positive Comity ➤

OECD 1999 Report on Notification of Transnational Mergers ➤

The Wood-Whish Report - Merger Cases in the Real World: A Study of Merger Control Procedures (OECD, 1994) ➤

Policy Roundtables ➤

OECD Competition Policy Roundtables

OECD, 'Jurisdictional nexus in merger control regimes' (Rountable to be held in June 2016)

OECD, 'Investigations of consummated and non-notifiable mergers' (2014) (Executive summary: DAF/COMP/WP3/M(2014)1/ANN3/FINAL 11 March 2015)

OECD, 'Definition of Transaction for the Puprose of Merger Control Review' (DAF/COMP(2013)25 (24 Jan 2014))

OECD Policy Roundtables: The Role of Efficiency Claims in Antitrust Proceedings DAF/COMP(2012)23 (2 May 2013)

OECD Policy Rountables: Market Definition (2012) DAF/COMP(2012)24 (11 October 2012)

OECD Policy Rountables: Impact of Evaluation of Merger Decisions (June 2011) DAF/COMP(2011)24 (18 September 2012)

OECD Policy Roundtables: Economic Evidence in Merger Analysis DAF/COMP(2011)23 (27 July 2012)

OECD Policy Roundtables: Remedies in Merger Cases DAF/COMP(2011)13 (30 July 2012) (Roundtable No 125)

OECD Policy Roundtables: Cross-Border Merger Control: Challenges for Developing and Emerging Economies DAF/COMP/GF(2011)13 (2011) (Roundtable No 122)

OECD Policy Roundtables: Failing Firm Defence (DAF/COMP(2009)38) (2009) (Roundtable No 103)

OECD Policy Roundtables: The Standard for Merger Review, with a Particular Emphasis on Country Experience with the change of Merger Review Standard from the Dominance Test to the SLC/SIEC Test (DAF/COMP(2009)21) (2009) (Roundtable No 102)

OECD Policy Roundtables: Competition Policy, Industrial Policy and National Champions (DAF/COMP/GF(2009)9) (2009) (Roundtable No 96)

OECD Policy Roundtables: Managing Complex Mergers (DAF/COMP(2007)44) (2007) (Roundtable No 83)

OECD Policy Roundtables: Dynamic Efficiencies in Merger Analysis (DAF/COMP(2007)41) (2007) (Roundtable No 77)

OECD Policy Roundtables: Vertical Mergers (DAF/COMP(2007)21) (2007) (Roundtable No 68)

OECD Policy Roundtables: Merger Remedies (DAF/COMP(2004)21) (2004) (Roundtable No 48)

OECD Policy Roundtables: Media Mergers (DAFFE/COMP(2003)16) (2003) (Roundtable No 44)

OECD Policy Roundtables: Substantive Criteria Used for the Assessment of Mergers (DAFFE/COMP(2003)5) (2003) (Roundtable No 42)

OECD Policy Roundtables: Merger Review in Emerging High Innovation Markets (DAFFE/COMP(2002)20) (2002) (Roundtable No 20)

OECD Policy Roundtables: Portfolio Effects in Conglomerate Mergers (DAFFE/COMP(2002)5) (2001) (Roundtable No 37)

OECD Policy Roundtables: Mergers in Financial Services (DAFFE/CLP(2000)17) (2000) (Roundtable No 29)

OECD Policy Roundtables: Airline Mergers and Alliances (DAFFE/CLP(2000)1) (2000) (Roundtable No 26)

OECD Policy Roundtables: Efficiency Claims in Mergers and Other Horizontal Arrangements (OCDE/GD(96)65) (1995) (Roundtable No 4)

OECD Policy Roundtables: Failing Firm Defence (OCDE/GD(96)23) (1995) (Roundtable No 2)

Other national reports (select)

Canada: Innovation and Dynamic Efficiencies in Merger Review (April 2007)

New Zealand: A Best Practice Review of the New Zealand Merger Clearance Regime (August 2007)

United Kingdom: OFT/CC Review of Merger Guidelines (initiated 2008; includes links to Guidelines)

United States: Pre-Merger/Hart-Scott-Rodino Act (resources from FTC)

Reading

 

Last updated: 7 June 2022