The ACCC can authorise a proposed acquisition when it is satisfied that the statutory test has been met. Merger authorisation provides protection from legal action under section 50 of the Competition and Consumer Act.
Merger parties may seek statutory protection from legal action under section 50 of the Act by lodging an application for merger authorisation. While the merger authorisation is in force, the authorised parties will be able to acquire the relevant shares or assets without risk of the ACCC or third parties taking legal action for a contravention of section 50 of the Act.
The ACCC may not grant authorisation unless it is satisfied that either:
- the proposed acquisition would not be likely to substantially lessen competition or
- the likely public benefit from the proposed acquisition outweighs the likely public detriment, including any lessening of competition.
Merger authorisation cannot be granted to acquisitions that have been completed.
The ACCC encourages merger parties to contact the ACCC for a pre-lodgement discussion to clarify what information and evidence may be needed to assess the application.
A valid application for merger authorisation requires:
- a public version of your application for publication on the public register containing sufficient information to enable public consultation on your application
- payment of the lodgement fee of $25 000
- a signed declaration by the applicant that the application is true, correct and complete
- a signed section 87B undertaking not to proceed with the proposed acquisition while the ACCC is considering the application.
The ACCC prefers applications to be lodged electronically, at firstname.lastname@example.org. Applications lodged by email should be accompanied by a covering letter that includes details of how and when the lodgement fee will be paid. Applications can also be lodged by mail or in person at an ACCC office.
Merger parties should provide all relevant information and evidence, including any expert reports intended to be relied on. The ACCC may give less weight to a statement or submission that is not supported with corroborating evidence.
The steps involved in the merger authorisation review process include:
- Pre-lodgment discussion between the applicant and the ACCC to outline the merger proposal and discuss the information that is likely to be needed to assess the application.
- The authorisation process begins once a valid application is received, which includes receipt of a public version of the application, payment of the lodgement fee, a signed declaration that the application is true, correct and complete, and a section 87B undertaking not to proceed with the proposed acquisition while the ACCC is considering the application.
- The ACCC will invite submissions on the application from interested parties, conduct other market inquiries and research while consulting with interested parties, and seek further information from the applicant as needed. The applicant will be invited to provide a response to the issues raised in submissions.
- While the ACCC is not required to publish a draft determination in the merger authorisation process, the ACCC expects to engage with the applicant prior to the final determination to provide feedback in relation to the application.
The ACCC then makes a final determination, which may be to grant authorisation, grant authorisation subject to conditions or undertakings under section 87B, or deny authorisation.
The merger authorisation process is public and the application for merger authorisation, all related submissions by the applicant and interested parties, and the ACCC’s determination, are placed on the merger authorisations public register.
Applicants and interested parties providing information to the ACCC regarding an authorisation may make a claim for confidentiality and ask that the information, or parts of it, be excluded from the public register. All confidentiality claims must be substantiated.
A public version of your application must contain sufficient information to enable consultation.
The ACCC must make a determination either granting or denying merger authorisation within 90 days of receiving a valid application. Its ability to do so will depend on the information and evidence provided as part of the application, along with the complexity of the matter under review. The 90-day statutory time period also applies to applications for revocation, revocation and substitution, or minor variation of a merger authorisation.
Once the 90-day time period has begun, the ACCC is limited in its ability to accept amendments to an application. Consultation with interested parties will take place according to strict timeframes for the submission of information. Submissions or information received after the specified date may, but need not, be taken into account.
The 90-day time limit can be extended by any additional period provided the applicant agrees, in writing, before the expiration of the time period.
If the ACCC does not determine an application for a merger authorisation within the 90-day period, the ACCC is taken to have refused to grant authorisation.
See also: Merger authorisation guidelines
See: Forms & fees
If you have any questions about lodging an application for merger authorisation, please contact us at email@example.com