The Australian Merger Process: Challenges to ACCC Views on Mergers by Litigation and in an Administrative Context

Abstract

Australia has a voluntary premerger notification regime, administered by a well-resourced and proactive antitrust authority, the Australian Competition and Consumer Commission (the ACCC). The Merger Guidelines recommend that business should seek clearance from the ACCC in the event that the postmerger market share of the merged entity is greater than twenty percent. After appropriate investigation and market inquiries, the ACCC can clear a transaction relatively promptly. If it has concerns with a proposal, it has extensive investigatory powers, which can result in a lengthy second phase process that has no statutory time limit. Ultimately, if the ACCC has concerns with a merger, it will commence proceedings in court to restrain its completion or seek divestiture of the acquired shares or assets.