Draft merger review process guidelines

Overview

The Australian Consumer and Competition Commission has issued draft Merger Review Process Guidelines 2013 (Process Guidelines) for public comment.

The ACCC publishes Process Guidelines to provide businesses and legal practitioners with guidance on the ACCC’s approach to informal reviews of mergers and acquisitions pursuant to section 50 of the Competition and Consumer Act 2010.

The informal review process enables merger parties to seek the ACCC’s view on whether an acquisition is likely to have the effect of substantially lessening competition.

Why your views matter

The Process Guidelines were first published in 2004 and were last subject to significant revision in 2006. The draft Process Guidelines make a number of changes to the 2006 version (see below) which the ACCC considers will result in improved transparency and efficiency of ACCC informal merger reviews. The ACCC is seeking feedback from interested parties on these changes.

Summary of proposed changes

Since 2006, the ACCC’s approach to reviewing mergers has evolved. The draft Process Guidelines provide an update on the ACCC’s current practices, including:

• The relatively new process the ACCC has developed for dealing expeditiously with the large number of non-contentious mergers notified to it.
• The process by which merger parties are provided with feedback on issues and concerns raised by the market.
• The process for releasing Public Competition Assessments – the published summaries of the ACCC’s reasons for its decisions in complex or contentious merger matters.
• Clarifying the ACCC’s approach to review timelines, including the setting of more realistic timelines and the use of ‘provisional’ decision dates.
• Publishing more detail about the stages involved in each merger review on the ACCC’s mergers register.
• In some cases where a merger is being reviewed by overseas competition regulators, the ACCC will suspend its review pending discussions with those agencies, or the outcome of their reviews.

This consultation has now closed.