Contested Mergers and the ACCC'S Proposed Merger Reforms

Holly Cao, Stephen King and Graeme Samuel

Australian Business Law Review

Holly Cao, Stephen King and Graeme Samuel , ‘Contested Mergers and the ACCC'S Proposed Merger Reforms’ (2022) 50(1) Australian Business Law Review 34

Abstract

The Australian Competition and Consumer Commission (ACCC) has recommended extensive legislative reforms to the merger provisions in s 50 of the Competition and Consumer Act 2010 (Cth), arguing that current legal interpretation and regulatory requirements are skewed towards clearance. However, a review of the merger case history suggests that the ACCC's problems are self-imposed, relying on economic theories that are not backed up by factual evidence or commercial realities. The proposed reforms' focus on structural conditions draws consideration away from the end purpose of s 50, which is to prevent mergers that substantially lessen competition. The core issue is that the ACCC's merger analysis and litigation strategy fails to identify mergers that meet the requisite legal and economic standard as being likely to be substantially anti-competitive. As such, the ACCC should review its litigation strategy and its review processes and guidelines in its application of the existing legal test.