An introduction to Australia's merger control regime
Australia's merger control regime is contained in the Competition and Consumer Act 2010 (Cth) (the CCA), and is primarily administered by the Australian Competition and Consumer Commission (ACCC) through an informal process. The Australian Competition Tribunal has a limited role to play in the regime.
The regime is voluntary and non-suspensory. It is not subject to turnover thresholds and does not contain a mandatory notification procedure.
In practice, the ACCC's extensive investigatory powers and ability to apply to the Federal Court of Australia for urgent interlocutory relief, including for orders to delay completion of mergers, and the Australian Foreign Investment Review Board's practice of contacting the ACCC to ask it if it has any competition concerns with acquisitions notified to the Australian Federal Treasurer under Australia's foreign investment rules, mean that the Australian regime usually functions as if it is mandatory and suspensory.
The ACCC co-operates with other competition law agencies, as a result of MOUs, bilaterals and other arrangements. The extent and frequency of the co-operation appears to be increasing and, in some cases, may mean that the ACCC delays making a decision on a transaction notified in other jurisdictions until other agencies (such as the DoJ or the EC) have made their decision.
The ACCC's policy is to further investigate proposed acquisitions:
- that would result in the acquirer having a market share of 20% or more; and
- where the products of the parties are either economic substitutes or complements.
The basis for the policy is that where an acquisition of shares or assets meets these requirements, it may have the potential to raise concerns under section 50 of the CCA. Section 50 of the CCA prohibits acquisitions of shares or assets that would have the effect, or be likely to have the effect, of substantially lessening competition in a market in Australia.
For more information on Australia's merger control regime, visit Global Legal Insights or download the Australia chapter below.
- Key features of Australia's merger control regime
- Overview of merger control activity during the last 12 months under the informal merger review process
- New developments in jurisdictional assessment or procedure
- Priority sectors
- Key economic appraisal techniques applied e.g. as regards unilateral effects and co-ordinated effects, and the assessment of vertical conglomerate mergers
- Approach to remedies and impact on process and timing
- Key policy developments
- Reform proposals.