Australia

The acquisition of shares or assets in Australia that have the effect or likely effect of substantially lessening competition is prohibited under Sections 50 and 50A of the Competition and Consumer Act 2010 (Cth) (CCA). There is no mandatory notification or filing regime in Australia. Parties can seek a statement from the Australian Competition and Consumer Commission (ACCC) that it will not take steps to oppose a merger under the informal merger clearance regime. Alternatively, parties can seek a formal merger clearance or exemption from the ACCC under the CCA. The vast majority of mergers in Australia are assessed under the informal merger clearance process, which remains the most flexible, convenient and relatively effective process for obtaining merger approval. ACCC merger statistics indicate that in 2019–2020, the ACCC considered 288 mergers, of which 257 were pre-assessed by the ACCC in terms of its confidential informal merger clearance process and required no public review; only 31 mergers were subject to public review.[2]

The ACCC has the power to accept court enforceable undertakings under Section 87B of the CCA (87B Undertaking) as a means of remedying competition concerns that may arise from mergers. Although there are no formal restrictions on the types of remedies the ACCC can accept under an 87B Undertaking, the ACCC has a stated preference and record of preferring structural remedies over behavioural remedies. All four of the transactions approved by the ACCC subject to undertakings in 2019–2020 involved structural undertakings, one of which had both behavioural and structural undertakings.[3] Similarly, in 2018–2019, the ACCC accepted merger undertakings in five transactions, and only one trans­action was subject to behavioural undertakings.[4]

This chapter provides practical guidance for navigating complex merger review in Australia. After a brief overview of the merger review framework, we discuss the types of remedies typically accepted by the ACCC. We then consider strategies for remedy negotiations, followed by a discussion of how remedies are modified or enforced. Finally, we consider how the ACCC interacts and cooperates with other regulators.

Overview of merger review process

The merger control regime in Australia is administered and enforced by the ACCC. Section 50 of the CCA prohibits the acquisition of shares or assets that would have the effect, or likely effect, of substantially lessening competition in a market. Unlike some other jurisdictions, there is no mandatory notification regime for mergers in Australia. However, a practice has developed of seeking informal merger clearance from the ACCC. The ACCC’s Informal Merger Review Process Guidelines (Informal Merger Clearance Guidelines) provide some indication as to when the ACCC may expect to be notified of a merger. These Guidelines state that the ACCC will expect to be notified of transactions in which the post-transaction firm would have a share of any market greater than 20 per cent. The ACCC has also identified industries or sectors of specific focus where it would expect to be notified of a merger and more likely to seek to review – including the digital, financial, agriculture, fuel and energy sectors.

Merger parties are not legally required to notify the ACCC of a merger. It is open to parties to choose to proceed with the transaction without receiving informal clearance and assume the risk of defending any court action for a contravention of Section 50. If the parties proceed without obtaining merger clearance and the ACCC considers that Section 50 has been contravened, it must apply to the Federal Court, which can impose a range of remedies, including an interim injunction preventing the transaction from completing, ordering divestiture, or applying for pecuniary penalties (up to A$10 million per contravention for companies, and A$500,000 for individuals). The ACCC has no independent powers to seek to prevent mergers without a court order.[5]

The ACCC may receive requests for informal merger clearance or may commence an independent review of mergers it becomes aware of.

An outline of the three available avenues and the relevant process and timing for each is set out below. Noting that although the ACCC does have regard to commercial timing pressures, it has publicly stated that parties in contentious mergers should expect longer timelines for review.[6]

Pre-assessment and confidential review

When the ACCC is notified of a potential transaction, the ACCC will determine whether it is capable of pre-assessing the transaction (review on the papers) or if a public review is required. The ACCC’s Informal Merger Clearance Guidelines state that the typical duration of a pre-assessment is two weeks; however, in practice, it is common for the pre-assessment process to take longer. The ACCC does not provide any public reporting on the timing of pre-assessments. Statistics maintained by Gilbert + Tobin suggest that the typical length of a pre-assessment is around four to six weeks.

Parties can also seek a confidential review from the ACCC, although this is relatively rare.[7]

Informal merger clearance

The informal merger review process allows the ACCC to analyse a merger and provide a statement of executive intention that it will either oppose or not oppose the merger should the parties proceed to complete.[8] An informal clearance decision by the ACCC under the informal review process is not underpinned by legislation and is a statement of intention by the ACCC, and is expressly subject to the accuracy of the information provided to the ACCC by the parties.

A public review involves the ACCC undertaking market inquiries with interested parties, or seeking further information from the merger parties themselves. As a result of these inquiries, the ACCC may publish a ‘statement of issues’ (SOI), detailing its competition concerns and whether it considers the transaction is likely to substantially lessen competition. Following a SOI, the ACCC conducts a second phase of review, after which it makes a final decision.

As detailed below, merger remedies in the form of 87B Undertakings may be offered at any time during a merger review. Generally, the ACCC has in place a process for public consultation of any offered 87B Undertakings, which may add additional time to a review.

The average length of various types of informal review based on Gilbert + Tobin’s analysis of public information is shown in the table below.

Type of reviewAverage calendar days (2011–2020)
Phase I (no SOI), no undertakings68 (~2.5 months)
Phase I with undertakings161 (~6 months)
Phase II (with SOI), no undertakings162 (~6 months)
Phase II with undertakings192 (~7 months)

Merger authorisation

The merger authorisation process is the statutory and formal avenue for obtaining ACCC merger approval. The process in its current form was introduced in late 2017 following the Harper Reforms.[9] Two merger authorisation applications have been considered by the ACCC under this process, both of which resulted in the transaction being authorised. There is a third authorisation application currently under consideration.[10]

The advantage of the formal merger authorisation process over the informal clearance process is that merger parties have certainty of the merger review periods and benefit from statutory protection against actions by the ACCC or third parties for a contravention of Section 50 while the authorisation is in force.[11]

The ACCC has the power to authorise a merger when it is not likely to substantially lessen competition, or if the public benefit from the merger would outweigh any detriments (including detriments from any lessening of competition).[12] The public benefit limb of the authorisation test has not yet formed the basis of a merger authorisation decision by the ACCC; the ACCC authorised both of the applications it has considered on the basis of it being satisfied that no substantial lessening of competition would arise.[13]

Merger parties may offer undertakings as merger conditions to address concerns identified by the ACCC at any stage of the merger authorisation process. Whether a merger will be subject to conditions is dependent on the ACCC’s discretion to exercise its powers to impose conditions. The exercise of this discretion involves a determination based on the nature and circumstances of the proposed acquisition, including the likelihood of a substantial lessening of competition resulting from the transaction, and the likely benefits and detriments of the transaction.[14]

Mergers in Australia are generally cleared by the ACCC under the informal merger review process, owing to the flexibility of the process, and it is likely to remain so in the future. Some transactions are more suited to the formal merger authorisation process, including if there are specific public benefits that cannot be taken into account under the informal merger review process or if the parties seek the certainty of a legislated timeline.

Interaction of FIRB process and ACCC review

Some transactions involving foreign ownership require approval by the Foreign Investment Review Board (FIRB). Although the FIRB process is formally separate from the ACCC’s review process, one of the matters taken into account by FIRB in assessing whether a notifiable transaction is contrary to the national interest is whether the transaction would have an adverse effect on competition in Australia. It is typical for FIRB to seek input from the ACCC as part of assessing this aspect of the national criteria.[15] As such, merger parties should be aware that if a transaction involves notification to FIRB, it is likely that it will also involve de facto notification to the ACCC.

Merger remedies

ACCC approach to merger undertakings

If the ACCC has determined that a transaction is likely to result in a substantial lessening of competition, the merger parties may consider whether they are willing to address the ACCC’s concerns by offering a remedy in the form of a court enforceable undertaking. These undertakings are voluntary; the CCA does not give the ACCC the power to require merger parties to provide undertakings. Section 87B of the CCA enables the ACCC to accept enforceable undertakings as a remedy for potential breaches of the CCA, including breaches of Section 50 or 50A. Merger parties can propose an 87B Undertaking in both the informal clearance process and the formal merger authorisation process, and at any stage of these review processes. Outside the ACCC process, it is also possible for parties to offer commitments directly to the Federal Court during court proceedings;[16] if such undertakings are accepted by the Court, the ACCC may also accept an 87B Undertaking to assist in the monitoring and enforcement of the under­takings accepted by the Court.[17]

The merger remedies process under Section 87B of the CCA is flexible and allows parties to be proactive in considering when it would be appropriate to offer undertakings to the ACCC. For example, if timing is particularly critical and competition concerns are readily apparent, it may be appropriate to offer an undertaking at the same time as seeking informal clearance.

Like its counterparts, the ACCC’s Merger Guidelines allow merger parties to offer structural or behavioural undertakings (or both). However, the ACCC prefers structural undertakings (especially divestiture) over behavioural undertakings, as it considers that structural remedies tend to be more straightforward to administer, monitor and enforce. Since 2018, the ACCC has accepted 10 merger undertakings, eight of which include divestiture, with only two involving behavioural remedies. In a joint statement with the UK’s Competition and Markets Authority (CMA) and Germany’s Federal Cartel Office (Bundeskartellamt), the ACCC reiterated its preference for structural remedies, stating as its reason for this that behavioural remedies create continuing economic dependencies that are unlikely to recreate pre-merger competition and may distort the natural development of the market. Behavioural remedies also raise circumvention risks and necessitate extensive post-merger monitoring. The ACCC also noted that increasing complexity of markets and the need for forward-looking assessments is likely to require competition authorities to continue to favour structural remedies.[18]

The ACCC’s preference for structural undertakings and reluctance to accept behavioural undertakings is based on its view that the latter are difficult to monitor and enforce. However, the Federal Court in Australian Competition and Consumer Commission v. Pacific National Pty Limited (No. 2)[19] rejected submissions that behavioural undertakings should not be accepted because they are onerous to enforce, and considered that the ACCC would not be monitoring the undertaking; rather, Pacific National’s behaviour would be monitored by the independent auditor appointed under the undertaking and by market participants who would seek to enforce any breach of the undertaking.

In relation to divestiture undertakings, the chair of the ACCC has in the past made a number of public comments that the ACCC prefers divestitures to occur before the completion of a merger (i.e., as a fix-it first type of remedy).[20]

The ACCC’s objective in accepting an 87B Undertaking is to resolve a potential competition concern. In relation to divestiture undertakings, the ACCC will assess the proposed divestiture undertaking to determine whether it is adequate to address competition concerns raised by the potential transaction and to address the following types of risks:

  • composition risk: Is the scope of the divestiture package sufficient to attract a suitable purchaser and to allow that purchaser to operate effectively?
  • purchaser risk: Is a suitable purchaser available and capable of operating the business?
  • asset deterioration risk: Will the divestiture package deteriorate in competitive value prior to completion of the divestment?

Depending on the timing of the sale and the nature of the assets to be divested, other key considerations that may be relevant in the divestiture undertaking include (1) the preservation of the assets making up the divestiture package (including ring-fencing measures), (2) the appointment of an independent manager to maintain the value of the divestiture business, (3) hold separate arrangements (including operational and financial separation, separation of management, decision-making and books and records) and (4) access arrangements, especially when the divestiture business is vertically integrated into the merged entity.

Although the ACCC’s view is that behavioural undertakings will rarely be sufficient to address its competition concerns,[21] it may accept a behavioural undertaking if structural remedies are not suitable. The ACCC’s general view is that behavioural undertakings can often be inflexible and unresponsive to market changes over time and also require monitoring for longer, which increases both compliance and monitoring costs. In certain circumstances, the ACCC will consider both structural and behavioural undertakings.

This perspective is reflected in the ACCC merger data, with only two behavioural undertakings accepted in the past five years. A behavioural undertaking was accepted in conjunction with a structural undertaking in 2019 in respect of ANZ Terminal Property Ltd’s proposed acquisition of GrainCorp Liquid Terminals Australia Property Ltd.[22] The last accepted behavioural undertaking that was not associated with a structural undertaking was in 2018 in the Sydney Transport Partners Consortium merger.[23] In 2021, the ACCC has called for public comments on proposed behavioural remedies in relation to the amalgamation of Australia’s payment services providers: BPAY Group Holding Property Ltd and its subsidiaries (together, BPAY), eftpos Payments Australia Ltd (eftpos) and New Payments Platform Australia Ltd (NPPA).[24]

ACCC process for merger undertakings

The ACCC expects the relevant merger party (usually the purchaser) to offer an 87B Undertaking based on its standard form and does not accept changes to the majority of the operational provisions. The ACCC routinely requires a submission explaining why any amendments to the standard form of ACCC wording are necessary.

Once an 87B Undertaking is offered, the ACCC typically conducts public market inquiries (which can be targeted) with interested parties to test whether the proposed remedy is adequate to address competition concerns raised by the potential transaction and the level of composition, purchaser and asset deterioration risk associated with the proposed divestiture package. If there is feedback from interested parties, it is often raised with the merger parties and the ACCC might suggest amendments to the proposed 87B Undertaking to address any issues. The ACCC typically allows two to three weeks to conduct these inquiries.

When an undertaking is offered during a merger review, the ACCC’s indicative timeline will generally be adjusted to allow for market inquiries and further internal analysis.

If the merger is being considered in more than one jurisdiction, the ACCC will generally consult with the relevant overseas competition agencies. The ACCC is a party to a series of cooperation agreements with other competition agencies, and it actively engages with its counterparts when assessing theories of harm and appropriate remedies in multi-jurisdictional mergers.

In assessing an 87B Undertaking, the ACCC tends to consider the following:

  • efficacy in dealing with competition concerns: the ACCC will consider whether the undertaking appropriately addresses its competition concerns. The ACCC will also take into account relevant practical matters, such as a consideration of the risks that the undertaking poses and whether the level of risks involved are acceptable;[25]
  • least burdensome remedy: the ACCC will seek to implement a remedy that addresses the competition concerns but does not go further;[26]
  • conceptual simplicity: the ACCC considers whether the design of the undertaking is as simple as possible, but this must be balanced with enough detail to deal with the practical complexities and to ensure it is legally enforceable;[27]
  • cost of monitoring, enforcement and implementation: if the costs of a remedy outweigh the benefits of a merger, this does not influence the ACCC’s decision to oppose or not oppose a proposed merger. However, these issues are relevant to the ACCC’s consideration of an undertaking;[28]
  • timeliness: the ACCC generally accommodates tight commercial time frames in exchange for merger parties negotiating in good faith to fully address the ACCC’s competition concerns;[29] and
  • impact on third parties: in addition to considering the effects of the merger and proposed undertakings in the relevant markets, the ACCC will consider whether third parties are affected (for example, an undertaking should not be inconsistent with existing contractual obligations between a merger party and a third party). Market inquiries are relevant to considering this issue.[30]

Variation of merger undertakings that have already been accepted

A merger party may vary or withdraw an 87B Undertaking, but only with the consent of the ACCC.[31] This will involve writing to the ACCC with the specific request to vary or withdraw the 87B Undertaking with reasons for the ACCC to consider. The reasons for the request could be that market circumstances have changed or that compliance with the 87B Undertaking is found to be too difficult or impractical. For example, in Qube Holdings Limited’s (Qube) proposed acquisition of a 50 per cent shareholding in Amalgamated Terminals Property Ltd (AAT), the parties gave an 87B Undertaking to allow open access for AAT’s Appleton Dock general cargo facility at the Port of Melbourne. The ACCC consented to vary this for three years since changing conditions at Appleton Dock meant that Qube competed with the Port of Geelong for general cargo.[32]

Any variation is made publicly available on the ACCC website. When making a variation decision, the ACCC will consider whether the variation remains in alignment with the purpose of the original 87B Undertaking, along with other information available to it, including any market feedback on competition in the relevant markets.[33] In the example above, Qube’s variation request had received mixed market feedback on the competition between Appleton Dock and the Port of Geelong. As such, the ACCC weighed this against the limited timing and the audit and compliance provisions in place.

The ACCC may also waive the need to comply with an 87B Undertaking. In the example above, AAT undertook not to allow an employee conducting specific functions to simultaneously be engaged by Qube. A limited waiver to allow one AAT employee to be engaged by Qube was granted, noting certain reporting and compliance requirements.[34] Waiver decisions are also made publicly available on the ACCC website.

A decision to amend an 87B Undertaking is open to review by the court.[35]

Monitoring of merger undertakings

The ACCC will only accept an 87B Undertaking that has an effective mechanism that allows for the merger parties’ conduct to be monitored for potential breaches of the 87B Undertaking.

The ACCC’s monitoring activity varies depending on the 87B Undertaking, but generally involves an ACCC-approved independent auditor and periodic reporting by the auditor. Recent examples include the following:

  • in Mylan NV’s proposed merger with Pfizer Inc’s Upjohn division to create Viatris, in which the merger parties undertook to divest the brand, assets and rights associated with pharmaceutical products based on certain molecules, to address the ACCC’s competition concerns in relation to the supply of pharmaceutical products based on these molecules.[36] The purchaser of the divestiture business was approved at the time the 87B Undertaking was accepted by the ACCC. The 87B Undertaking provided for a process under which compliance with the undertaking was subject to periodic auditing and reporting by an ACCC-approved independent auditor; and
  • in the acquisition by Sydney Transport Partners (led by Transurban) of a majority interest in the WestConnex project, the ACCC accepted an 87B Undertaking for Transurban to publish traffic data quarterly to alleviate the ACCC’s concerns that Transurban had an advantage in bidding for WestConnex because of exclusive traffic data it derived from its interests in other existing toll roads.[37] The merger parties were required to appoint an ACCC-approved independent auditor, who was responsible for providing the ACCC with a full audit of the merger parties’ compliance with the undertaking.

If an independent auditor identifies a failure to comply with the obligations of an 87B Undertaking, it may cause the ACCC to commence court action to enforce the undertaking. In Toll Holdings Ltd v. ACCC,[38] questions about Toll’s compliance with its undertaking were first raised in the independent auditor’s reports.

Enforcement of merger undertakings

If the ACCC considers that the merger parties have breached an 87B Undertaking, it may make an application to the Federal Court seeking orders to enforce the undertaking. The Court has the power to make any orders it considers appropriate, which may include:

  • directing compliance with the 87B Undertaking;
  • directing that the Commonwealth be paid in the amount of the financial benefit reasonably attributable to the breach; and
  • compensation for other parties who have suffered damage as a result of the breach.[39]

The ACCC has, and will seek, to enforce 87B Undertakings in relation to mergers if a party has allegedly breached the undertaking, as illustrated by the following two examples:

  • In 2006, the ACCC accepted an 87B Undertaking by Alinta in relation to its acquisition of Australian Pipe Trust. The 87B Undertaking contained an obligation to structurally separate the merger parties’ interests in the Dampier to Bunbury Natural Gas Pipeline (DBNGP Holdings) and that no member of staff of Alinta be involved in commercial negotiations between the Pipeline and other shippers. The ACCC commenced proceedings when an Alinta employee was seconded to DBNGP Holdings. The parties agreed to settle. The court declared that Alinta had breached its undertaking and ordered Alinta to pay the ACCC’s costs of the proceedings, fixed at A$250,000.[40]
  • In Toll v. ACCC, the court found that Toll had breached its undertaking.[41] Toll was obliged not to share management or employees with Asciano Limited. A Toll subsidiary entered into a labour hire contract with Asciano whereby casual employees of the Toll subsidiary would be instructed to supply labour to Asciano. On the interpretation of the undertaking, the court concluded that the arrangement would be a breach of the undertaking and ordered Toll to pay the ACCC’s costs.

A third party does not have the right to enforce an 87B Undertaking under the CCA, although a breach of an undertaking could be regarded as unlawful for the purposes of tort law.[42]

In the cross-border merger context, the ACCC’s jurisdiction under the CCA is limited to whether the parties are either incorporated or carrying on a business in Australia, unless the parties voluntarily submit to the ACCC’s jurisdiction.[43]

Cooperation with other regulators

The ACCC is a party to a series of cooperation agreements with other agencies that allow sharing of intelligence, case theories and investigative techniques.[44] Given the close geographical relationship, the ACCC often coordinates with the New Zealand Commerce Commission (NZCC), with which it has a protocol in place for the review of trans-Tasman mergers.[45] There is additionally a cross-appointment arrangement between the ACCC and NZCC that permits members of a regulator to have full access to all confidential information held by the other regulator.[46]

The ACCC also has cooperation arrangements with agencies such as the Competition Bureau of the Government of Canada, the UK’s CMA, the European Commission, the US Department of Justice (Antitrust Division) and the US Federal Trade Commission.[47]

The ACCC is also often notified of proposed mergers by other Australian regulators, such as the FIRB.[48] Proposals are assessed by FIRB to ensure they are not contrary to the national interest. FIRB may refer a transaction to the ACCC to seek its views, as competition is a relevant factor in considering the national interest test.[49] As such, in mergers where parties are required to obtain FIRB approval, it is prudent for the parties to proactively notify the ACCC, even if there are no obvious competition issues.

In the context of a merger review, when the transaction is also being considered by international agencies, the ACCC may consult with those agencies to inform its own review.[50] If those discussions do not involve protected information,[51] the ACCC can coordinate with other agencies without permission from the merger parties. However, if the ACCC wishes to exchange confidential information with international agencies, it will generally seek a confidentiality waiver from relevant parties.[52] The ACCC has a standard form waiver that it will provide to the merger parties when appropriate.[53]

Remedies in multi-jurisdictional transactions

In cross-border transactions, the ACCC’s approach to remedies can be shaped by the remedies obtained by an international regulator.[54] In some cases, the ACCC may elect not to require a remedy in Australia if commitments have already been made to another regulator and its competition concerns can be satisfied by those commitments. For example:

  • in relation to Bayer AG’s acquisition of Monsanto Company in 2018, the ACCC considered that a number of divestment commitments had already been made to the European Commission. The commitments were sufficient to remove the overlap in the ACCC’s markets of concern (being the supply of weed management systems for canola and the supply of vegetable seeds) so that an additional remedy was not required;[55] and
  • in relation to GlaxoSmithKline plc’s proposed acquisition of the human vaccines business of Novartis AG in 2015, the ACCC accepted an undertaking incorporating divestment commitments provided to the European Commission. The ACCC was satisfied that these commitments would remedy its competition concerns for the supply of Meningococcal ACWY vaccine products in Australia.[56]

However, the ACCC does not follow the approach of other regulators in all cases. If the ACCC is not satisfied that a remedy from a foreign jurisdiction would resolve competition concerns in Australia, it may impose its own. For example, in relation to Elanco Animal Health Incorporated’s acquisition of Bayer Aktiengesellschaft’s animal health business in 2020, the ACCC accepted an 87B Undertaking that included a different product for divestment as compared with other jurisdictions involved in the transaction owing to competition concerns that were specific to Australia.[57]

In 2020, the ACCC did not accept a behavioural undertaking offered by Google in relation to its acquisition of Fitbit, despite a similar undertaking being accepted by the European Commission.

In its joint statement with the CMA and Bundeskartellamt, the ACCC highlighted the need for a common understanding across competition agencies about the need for rigorous and effective merger enforcement. In particular, the regulators specify the need for effective remedies given the high levels of concentration across various markets in the United Kingdom, Germany and Australia and the fast-paced development of the digital world.[58] It may be that greater international cooperation between these regulators and in these markets is to be expected in the future.

Conclusion

The offer and acceptance of 87B Undertakings to address theories of harm in mergers is an established practice in Australia.

Although there has been a consistent preference for structural undertakings, as we have seen in Google/Fitbit, the ACCC is likely to continue to face questions as to whether this preference remains fit for purpose in addressing emerging theories of harm in the digital space concerning access and use of data as well as interoperability, in particular since the European Commission has signalled a willingness to accept commitments relating to the treatment of data.

Only a minority of transactions notified to the ACCC involve the offer and acceptance of 87B Undertakings. Experienced counsel can provide invaluable insight to merging parties in Australia in relation to the types of remedies the ACCC generally accepts and help the engagement with the ACCC on the remedies proposal to run as smoothly and efficiently as possible.


Notes

1 Luke Woodward and Susan Jones are partners and Andrew Low and Jeremy Jose are special counsel at Gilbert + Tobin. The authors wish to thank consultant Betty Mkatshwa and lawyers Joy Kim, Erin Kirker and Chris Goutama for their assistance with the chapter.

2 Australian Competition and Consumer Commission [ACCC] and Australian Energy Regulator [AER], Annual Report 2019-20 (October 2020) [Annual Report], 57, available at https://www.accc.gov.au/system/files/ACCC%20and%20AER%20Annual%20Report%202019-20.pdf.

3 ibid; ACCC, ‘ANZ Terminals Pty Ltd proposed acquisition of GrainCorp Liquid Terminals Australia Pty Ltd’ (15 November 2019), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/anz-terminals-pty-ltd-proposed-acquisition-of-graincorp-liquid-terminals-australia-pty-ltd.

4 Annual Report (see footnote 2, above), 53; ACCC, Sydney Transport Partners Consortium (including Transurban) – proposed acquisition of WestConnex interest (30 August 2018), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/sydney-transport-partners-consortium-including-transurban-proposed-acquisition-of-westconnex-interest.

5 See, e.g., Competition and Consumer Act 2010 (Cth) ss 76, 80 and 81 [CCA].

6 Sarah-Jane Tasker, ‘ACCC gets more demanding in merger crackdown’, The Australian (5 August 2017), available at https://www.theaustralian.com.au/business/accc-gets-more-demanding-in-merger-crackdown/news-story/10d1fe8ec91a5129feb5e009ce7a42a8.

7 The ACCC will not conduct a confidential review for mergers that are public knowledge, purely speculative or hypothetical. As the ACCC’s view is formed without the benefit of information from market enquiries, the level of comfort provided by the confidential clearance is not as high as that provided under a public clearance. The process typically takes between two and four weeks but may be longer for complex mergers.

8 ACCC, Merger Guidelines (November 2017) [Merger Guidelines], at 3, available at https://www.accc.gov.au/system/files/Merger%20guidelines%20-%20Final.PDF.

9 Gilbert + Tobin, ‘Update on the 2017 Harper Reforms’ (18 October 2017), available at https://www.gtlaw.com.au/insights/harper-changes-competition-law-pass-through-parliament.

10 See ACCC, ‘Merger authorisations register’, available at https://www.accc.gov.au/public-registers/mergers-registers/merger-authorisations-register.

11 ACCC, Merger Authorisation Guidelines (October 2018) [Authorisation Guidelines], at 6, available at https://www.accc.gov.au/system/files/Merger%20Authorisation%20Guidelines%20-%20October%202018.pdf.

12 CCA (see footnote 5, above), s 90(7).

13 Gilbert + Tobin, ‘Sailing steady in rough seas: Mergers in 2020’, available at https://www.gtlaw.com.au/insights/sailing-steady-rough-seas-mergers-2020.

14 Authorisation Guidelines (see footnote 11, above), 39.

15 Foreign Investment Review Board [FIRB], Guidance 11: Protecting the national interest: guiding principles for developing conditions (Guidance Note, 17 December 2020), at 9, available at https://firb.gov.au/sites/firb.gov.au/files/guidance-notes/G11Principlesfordevelopingconditions_0.pdf; ACCC, Informal Merger Review Process Guidelines (November 2017), at 9, available at https://www.accc.gov.au/system/files/D17-156292%20Informal%20Merger%20Review%20Process%20Guidelines%20-%20updated%20November%202017_0.PDF.

16 ACCC v. Pacific National [2019] FCA 699.

17 See for example, Undertaking to the Australian Competition and Consumer Commission for the purposes of section 87B by The Australian Gas Light Company and GEAC Operations Pty Ltd (3 March 2004), available at https://www.accc.gov.au/system/files/public-registers/undertaking/558105-1-d04_33457.pdf.

18 Competition and Markets Authority, Australian Competition and Consumer Commission and Bundeskartellamt, Joint statement on merger control enforcement (20 April 2021), at 4, available at https://www.accc.gov.au/system/files/Joint%20statement%20-%20merger%20control%20enforcement.pdf.

19 [2019] FCA 669, [1433].

20 Merger Guidelines (see footnote 8, above), at 64. For example, in Bingo’s acquisition of Dial-a-Dump in 2019, the ACCC accepted an undertaking that required Bingo to divest its Banksmeadow waste processing facility as a condition precedent to the authorisation: ACCC, ‘Bingo’s acquisition of Dial-a-Dump not opposed, subject to divestiture undertaking’ (28 February 2019), available at https://www.accc.gov.au/media-release/bingo%E2%80%99s-acquisition-of-dial-a-dump-not-opposed-subject-to-divestiture-undertaking.

21 ibid., 59.

22 ACCC, ‘ANZ Terminals Pty Ltd proposed acquisition of GrainCorp Liquid Terminals Australia Pty Ltd’ (15 November 2019), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/anz-terminals-pty-ltd-proposed-acquisition-of-graincorp-liquid-terminals-australia-pty-ltd.

23 ACCC, ‘Sydney Transport Partners Consortium (including Transurban) – proposed acquisition of WestConnex interest’ (30 August 2018), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/sydney-transport-partners-consortium-including-transurban-proposed-acquisition-of-westconnex-interest.

24 ACCC, ‘Proposed amalgamation of BPAY, eftpos and NPPA’ (22 March 2021), available at https://www.accc.gov.au/public-registers/mergers-registers/merger-authorisations-register/proposed-amalgamation-of-bpay-eftpos-and-nppa.

25 Merger Guidelines (see footnote 8, above), at 59.

26 ibid., 58.

27 ibid., 59.

28 ibid., 58.

29 Tim Grimwade, ‘How to Obtain Approval for Difficult Mergers & Acquisitions – And How You Won’t’ (Speech, Lexis Nexis Trade Practices Law Conference, 18 October 2006), at 7, available at https://www.accc.gov.au/system/files/How%20to%20obtain%20approval%20for%20difficult%20mergers%20and%20acquisitions.pdf.

30 Merger Guidelines (see footnote 8, above), at 59.

31 CCA (see footnote 5, above), s 87B(2).

32 ACCC, ‘ACCC allows variations to access undertaking for AAT terminals’ (Media release 120/18, ACCC, 28 June 2018), available at https://www.accc.gov.au/media-release/accc-allows-variations-to-access-undertaking-for-aat-terminals.

33 ACCC, ‘Section 87B of the Competition and Consumer Act: Guidelines on the use of enforceable undertakings by the Australian Competition and Consumer Commission’ (April 2014), at 7, available at https://www.accc.gov.au/system/files/Guide%20to%20Section%2087B.pdf.

34 ACCC, Letter to ATT re Qube/AAT s87B undertaking – limited waiver request for ring fenced personnel provisions (26 March 2018), available at https://www.accc.gov.au/system/files/public-registers/documents/MER18%2B3263.pdf>;.

35 Australian Petroleum Pty Ltd v. ACCC (1997) 73 FCR 75.

36 ACCC, ‘Mylan N.V. and Upjohn Inc. – proposed merger’ (10 September 2020), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/mylan-nv-and-upjohn-inc-proposed-merger.

37 ACCC, ‘ACCC will not oppose Transurban consortium WestConnex bid following undertaking’ (Media Release MR170/18, ACCC, 30 August 2018), available at https://www.accc.gov.au/media-release/accc-will-not-oppose-transurban-consortium-westconnex-bid-following-undertaking.

38 (2009) 256 ALR 631 ]Toll v. ACCC].

39 CCA (see footnote 5, above), ss 87B(3)–(4).

40 ACCC, ‘Federal Court declares Alinta breached s87B undertakings’ (Media release MR 235/07, ACCC, 29 August 2007), available at https://www.accc.gov.au/media-release/federal-court-declares-alinta-breached-s87b-undertakings; Federal Court of Australia, Orders of Justice Weinberg VID1014/2006 (29 August 2007), available at https://www.comcourts.gov.au/file/Federal/P/VID1014/2006/3498353/event/25234684/document/111115.

41 This case is peculiar in that the proceeding was commenced by Toll and not the ACCC. Toll made an application to the court to declare that its conduct was not in breach of its Section 87B undertaking. Nevertheless, it is an example of the court enforcing a Section 87B undertaking.

42 Dresna Pty Ltd v. Misu Nominees Pty Ltd [2004] FCAFC 169, [19] (Kiefel and Jacobson JJ).

43 Organisation for Economic Co-operation and Development [OECD], ‘Remedies in cross-border merger cases’ (2013), at 24, available at https://www.oecd.org/daf/competition/Remedies_Merger_Cases_2013.pdf.

44 ACCC, ‘Competition agencies to coordinate on cross-border investigations’ (3 September 2020), available at https://www.accc.gov.au/media-release/competition-agencies-to-coordinate-on-cross-border-investigations-0.

45 ACCC, ‘ACCC/NZCC in-principle agreement to cooperative trans-Tasman mergers review protocol’ (24 July 2006), available at https://www.accc.gov.au/media-release/accc/nzcc-in-principle-agreement-to-cooperative-trans-tasman-mergers-review-protocol.

46 OECD (see footnote 43, above), at 20.

47 ACCC, ‘Treaties and agreements’, available at https://www.accc.gov.au/about-us/international-relations/treaties-agreements.

48 ACCC, ‘Informal Merger Review Process Guidelines’ (November 2017) [Informal Review Guidelines], at 6, available at https://www.accc.gov.au/system/files/D17-156292%20Informal%20Merger%20Review%20Process%20Guidelines%20-%20updated%20November%202017_0.PDF.

49 FIRB, Guidance 11: Protecting the national interest: guiding principles for developing conditions (17 December 2020), at 2, available at https://firb.gov.au/sites/firb.gov.au/files/guidance-notes/G11Principlesfordevelopingconditions_0.pdf.

50 Informal Review Guidelines (see footnote 48, above), at 19.

51 ‘Protected information’ is defined under s 155AAA of the CCA. It includes information given in confidence to the ACCC relating to its investigation, obtained using its information gathering powers under s 155 or given in confidence to the ACCC by a foreign government body under its merger control laws.

52 Informal Review Guidelines (see footnote 48, above), at 19. S 155AAA of the CCA does contemplate a process by which the ACCC can disclose confidential information of the parties with consent or as authorised by regulations. However, obtaining consent by confidentiality waiver is the preferred approach as it is simpler and aligns with the procedures of most international agencies.

53 Informal Review Guidelines (see footnote 48, above), at 19. Note that in transactions with multiple jurisdictions, what is acceptable in a jurisdiction outside Australia may not be acceptable to the ACCC. The ACCC generally does not accept restrictions on internal uses of confidential information consistent with the ACCC’s statutory functions. OECD (see footnote 43, above), at 19.

54 OECD (see footnote 43, above), at 19.

55 ACCC, ‘Bayer AG – proposed acquisition of Monsanto Company’ (22 March 2018), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/bayer-ag-proposed-acquisition-of-monsanto-company.

56 ACCC, ‘GlaxoSmithKline plc – proposed acquisition of human vaccines business of Novartis AG’ (29 January 2015), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/glaxosmithkline-plc-proposed-acquisition-of-human-vaccines-business-of-novartis-ag.

57 ACCC, ‘Elanco Animal Health Incorporated - Bayer Aktiengesellschaft’s animal health business’ (9 July 2020), available at https://www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/elanco-animal-health-incorporated-bayer-aktiengesellschaft%E2%80%99s-animal-health-business. The other relevant jurisdictions included United States, European Union and New Zealand.

58 Competition and Markets Authority, Australian Competition and Consumer Commission and Bundeskartellamt, Joint statement on merger control enforcement (20 April 2021), at 1, available at https://www.accc.gov.au/system/files/Joint%20statement%20-%20merger%20control%20enforcement.pdf>;.

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