i INTRODUCTION

The Australian merger control regime appears, superficially, to have many similarities with merger control regimes in other countries. It is, however, materially different from many of the mandatory notification regimes in other countries, because the first question to be addressed in the Australian context is not whether certain filing thresholds are triggered but, rather, whether the transaction is likely to give rise to competition concerns in Australia.

The core of Australia's merger control regime is contained in Section 50 of the Competition and Consumer Act (Cth) 2010 (CCA) (previously known as the Trade Practices Act), which prohibits any direct or indirect acquisition of shares or assets if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market in Australia.2 The authority responsible for enforcing the CCA's merger control regime is the Australian Competition and Consumer Commission (ACCC). The ACCC may investigate any transaction to ascertain whether it involves an anticompetitive acquisition of shares or assets, and it may seek an injunction from the Federal Court of Australia (the Federal Court)3 blocking a proposed acquisition.4 Post-closing, the ACCC (or any other interested person) can apply to the Federal Court for a divestiture order.5 In addition, the ACCC may also seek a court order imposing a pecuniary penalty on the merger parties if a completed merger has the effect, or is likely to have the effect, of substantially lessening competition.6

In considering a transaction, the ACCC can use its wide-ranging compulsory information-gathering powers to obtain the information and market data that it considers necessary to assess the competitive effects of that transaction in Australia.

The ability of the ACCC to investigate any transaction and the risks of court action to prevent a transaction from closing (or post-closing court action for divestiture, declaration that a transaction is void or penalties) have resulted in the practice in Australia of seeking 'informal clearance' from the ACCC where a proposed merger may raise competition concerns in Australia.

In its Merger Guidelines of November 2008 (updated in November 2017), the ACCC provides guidance as to when it would be prudent for the merger parties to seek clearance. It 'encourages' merger parties to notify a proposed merger in advance of completing it where the products of the merger parties are either substitutes or complements; and the merged entity will have a post-merger market share of greater than 20 per cent in the relevant market or markets. The ACCC adds that, as market shares are an imprecise indicator of likely competition effects, a proposed merger that does not meet these thresholds may still raise competition concerns and be subject to an investigation.

The ACCC can investigate transactions, even if informal clearance is not sought. The circumstances in which there is a heightened risk that the ACCC may commence an investigation on its own initiative include, in particular, where there are substantial complaints by industry participants; the parties are required to notify the Foreign Investment Review Board (FIRB) under the Foreign Acquisitions and Takeovers Act (the FIRB, as a matter of course, seeks the ACCC's views as part of its consultation process); or, in global merger cases, where the proposed merger raises competition concerns in other jurisdictions, particularly where it is subject to a second-phase investigation in the European Union or the United States. The ACCC may also investigate closed transactions where it has concerns but the parties did not request informal clearance.7

ii YEAR IN REVIEW

The ACCC has considered, in recent years, around 300 merger proposals each year. As the following table from the ACCC indicates,8 the vast majority of transactions either did not require a public review, or were reviewed and cleared.9

2013 FY
(to 30 June)
2014 FY
(to 30 June)
2015 FY
(to 30 June)
2016 FY
(to 30 June)
2017 FY (to 30 June)
(to 30 June)
2018 FY (to 30 June)
(to 30 June)
Matters (pre-)assessed – no review required 213 242 278 287 253 252
Reviews undertaken 76 55 44 32 35 29
Not opposed 55 36 35 17 21 17
Finished – no decision (including withdrawn)
Post-SOI - - - 5 8 3
Other 4 2 1 1 2 4
Publicly opposed outright 6 4 0 2 0 1
Confidential review – opposed or ACCC concerns expressed 5 2 0 1 2 1
Resolved through undertakings 2 10 7 5 2 1
Variation to remedy accepted 4 1 1 1 0 2
Variation to remedy rejected 0 0 0 0 0 0
Total matters (pre-)assessed and reviews undertaken 289 297 322 319 288 281

The overwhelming majority of mergers notified to the ACCC are dealt with in the 'pre-assessment' process, which is outlined further below. This process is designed to provide faster clearance for 'non-contentious mergers', without referring the transaction to public market inquiries (hence why it is described in the table above as 'no review required'). Details of those mergers that have been pre-assessed are not made public by the ACCC, nor is the basis for the ACCC's pre-assessment decision. Even the parties are provided with limited information regarding the pre-assessment analysis. As a result, it is sometimes difficult to predict whether a transaction will be pre-assessed or publicly reviewed. This uncertainty can be challenging for parties to manage, particularly when the timing of clearance is important.

In the past 12 months (approximately),10 the ACCC has publicly opposed only two mergers – Pacific National's proposed acquisition of intermodal assets from Aurizon11 and the proposed merger between TPG Telecom and Vodafone Hutchison Australia.12 However, this statistic is slightly misleading as it excludes those transactions where the parties withdrew their request for informal clearance following the ACCC publishing a statement of issues outlining serious competition concerns with the transaction (see, for example, MYOB's proposed acquisition of Reckon's Accountants Group13 and Siemens' proposal to combine its rail mobility business with Alstom14).

We have observed a number of developments in the past 12 months that are outlined below.

i ACCC's losing record in litigation opposing mergers continues

In the past 12 months the ACCC commenced its first court proceedings challenging a merger since 2011. In July 2018 it opposed Pacific National Pty Limited's (PN) proposed acquisition of Aurizon Holdings Limited's intermodal assets and commenced proceedings against the parties alleging that PN's proposed acquisition of the Acacia Ridge Intermodal Terminal would have the likely effect of substantially lessening competition.15

However, the ACCC's case was not restricted to the merger. It also alleged that the parties entered into two anticompetitive agreements in the course of pre-merger negotiations. First, the ACCC alleged that an agreement for PN to provide some terminal services at the interstate side of the Acacia Ridge Terminal under a sub-contract if it could not acquire the whole terminal would result in a substantial lessening competition in the interstate and Queensland intermodal rail markets in contravention of Section 45 of the CCA. Secondly, the ACCC alleged that the parties reached an anticompetitive understanding that would lead to Aurizon exiting its intermodal business through a combination of closure and the transactions with PN. This second allegation was abandoned by the ACCC during the course of the trial.

In making its case against the parties broader than simply whether the merger would have the effect or likely effect of substantially lessening competition, the ACCC has indicated its willingness to scrutinise subsidiary arrangements between merger parties and to take on complex cases, even where its track record of opposing mergers in Court has not been good. Once again in this case, the ACCC was unsuccessful in Court.16 Litigation has also commenced in response to the ACCC's decision to oppose the merger of TPG Telecom and Vodafone Hutchison Australia, another very difficult case for the ACCC.

The chairman of the ACCC, Rod Sims, has noted that the PN/Aurizon case 'illustrates the significant hurdles faced by the ACCC in opposing mergers in Court' and has said 'we need a real re-think of how merger issues are dealt with in Australia.'

ii 'Gun-jumping': a new ACCC target

Continuing the theme of scrutinising conduct surrounding mergers in addition to the transaction itself, the ACCC brought its first 'gun-jumping' case this year. In July 2018 it instituted proceedings against Cryosite Limited for alleged cartel conduct in relation to its entry into an asset sale agreement with Cell Care Australia Pty Limited. Before the agreement, Cryosite and Cell Care Australia were the only private suppliers of cord blood and tissue banking services in Australia. The asset sale agreement required Cryosite to refer all customer enquiries to Cell Care after the agreement was signed but before the acquisition was completed. Cryosite gave effect to this requirement by referring a small number of customers to Cell Care.

While this was referred to by the ACCC as 'gun-jumping', it differs from the more commonly understood 'procedural' form of gun-jumping in other jurisdictions, namely parties exercising control over a (non-overlapping) target before a compulsory waiting period has expired. Cryosite's 'gun-jumping' conduct was substantive cartel conduct in the form of market sharing, which took place in the period between signing and completion.

Cryosite was fined A$1.05 million for its conduct, which was a substantial amount when taking into account its small size and financial position. Much higher maximum penalties may apply for other companies engaging in similar conduct.

iii More documents and data required in contentious merger reviews

In recent years, the courts have been critical of the theoretical nature of the evidence relied on by the ACCC in cases where it has opposed a merger.17 As a result, in August 2017 the ACCC announced changes to its merger review process for contentious mergers that were designed to ensure that it is armed with sufficiently probative evidence should it oppose a merger.18 In practice this means that in a small number of contentious mergers the ACCC will use its compulsory information-gathering powers to require the merger parties to produce more documents and data and to submit their executives to examination under oath. This, in turn, will result in considerably longer time frames for the informal merger clearance process in those cases. In some mergers, it may be a factor in parties offering remedies earlier in the process, to avoid having to respond to time-consuming and burdensome document and information requests.19

iv ACCC's theories of harm continue to focus on concentrated markets

The ACCC has long been concerned about mergers that result in highly concentrated markets because of the potential for such mergers to result in increased prices and reduced service levels, and in the past 12 months the ACCC seems to have further cemented its views. In his speech to launch the ACCC's Compliance and Enforcement priorities for 2019, Rod Sims highlighted what he called a 'current bias to excessive consolidation'. He suggested that the ACCC will continue to be sceptical of arguments proposed by self-interested merging parties where those arguments defy commercial logic. Sims said 'The ACCC will continue to argue that, overwhelmingly, company behaviour will most benefit consumers and the community if it occurs within a framework of those companies facing strong competition from a sufficient number of competitors.'

In the vast majority of the mergers publicly reviewed by the ACCC in the past 12 months20 in which the ACCC published a statement of issues (i.e., Phase II) or accepted undertakings, the ACCC expressed horizontal concerns regarding the level of concentration in the market and the closeness of competition between the parties (with the potential that the merger would result in increased prices, reduced service levels or reduced innovation).

For example, in its review of the proposed merger between TPG Telecom and Vodafone Hutchison Australia,21 the high level of concentration of the mobile services market and fixed broadband market, with only three competitors in the respective markets having an 87 per cent and 85 per cent market share, was a key factor in the ACCC's decision to oppose the merger, even though the parties' operations in these markets appeared largely complementary. This decision has been challenged by the parties in the Federal Court. A central issue will be the ACCC's counterfactual that, in the absence of the merger, TPG would enter the market as a fourth mobile network operator. TPG has stated categorically that the banning of Huawei's telecom equipment in Australia and the delay caused by the merger review mean that it will not construct its own mobile network.

While high levels of market concentration and close competition between merger participants will raise the ACCC's concerns, they are not necessarily fatal to all transactions. The ACCC cleared Platinum Equity's proposed acquisition of OfficeMax Australia in November 2017, despite the transaction raising these types of concerns, as it was satisfied that the remaining market participants would provide sufficient competitive constraint on the merged entity.22 The transaction was effectively a 'four into three', but involved combining the two largest competitors. Unfortunately, no public competition assessment (PCA) was published, so it is difficult to understand precisely the factors on which the ACCC relied in providing clearance for this transaction. Similarly, the ACCC cleared the payment hardware security module aspect of Thales SA's acquisition of Gemalto NV without remedies relating to that part of the transaction, even though the parties supplied the 'vast majority' of payment hardware security modules to Australian customers.23 In that case, the ACCC took into account the small Australian market, global competition from homogenous products, declining barriers to entry and countervailing power of customers.

v Vertical effects

The ACCC continues to focus on the vertical effects of transactions, notwithstanding statements in its Merger Guidelines to the effect that 'it is often the case that vertical mergers will promote efficiency' and that 'in the majority of cases [vertical] mergers will raise no competition concerns'. This focus is perhaps because of the weight the ACCC places on the third-party views that it obtains through its public market inquiry process. Third parties will frequently articulate vertical concerns, even if they are not economically rational.

The Merger Guidelines indicate that the ACCC will focus on the merged firm's ability and incentive to foreclose rivals in the market and the likely effect of any such foreclosure. The ACCC has adhered to this focus on foreclosure in some recent transactions, including its statement of issues and ultimate opposition to Pacific National's proposed acquisition of intermodal assets from Aurizon.24 The ACCC expressed concerns that ownership of the Acacia Ridge Terminal would give Pacific National, the major user of that terminal, the ability and incentive to increase barriers to entry into intermodal rail linehaul markets in Queensland and interstate in the future by discriminating against or otherwise frustrating access at the Acacia Ridge Terminal. It was not satisfied that these issues were resolved by a proposed 87B (behavioural) undertaking offered by Pacific National regarding access to the Terminal. The case was decided by the Federal Court in May 2019, with the judge relying on the undertaking to dismiss the ACCC's case. The ACCC lodged its appeal on 27 June 2019, and is seeking to argue that the court made an error in accepting the undertaking.

vi Conglomerate effects

In the past 12 months the ACCC has investigated conglomerate effects in a number of its public reviews, but in each case was satisfied that the potential conglomerate effects would not give rise to a substantial lessening of competition. For example, in Arrow Pharmaceuticals Pty Ltd's proposed merger with Apotex Pharmaceuticals Pty Ltd,25 the ACCC considered whether the merged entity would have an enhanced ability to bundle generic prescription and over-the-counter pharmaceuticals, but found that pharmacies did not acquire these products in the one tender process. Similarly, in Nine Entertainment Co Holdings' proposed acquisition of Fairfax Media Limited,26 the ACCC considered conglomerate effects when examining the effect of the proposed merger on supply of advertising opportunities to advertisers, but concluded it was unlikely that the merged entity would engage in anticompetitive bundling because advertisers did not consider Nine or Fairfax 'must-haves'.

iii THE MERGER CONTROL REGIME

The Australian merger control regime has a number of distinctive features that result, directly or indirectly, from the fact that there is no mandatory notification requirement and no statutory suspension of closing of transactions. As previously discussed, a process of informal clearance by the ACCC evolved as a result of, on the one hand, the desire of merger parties to manage the risk of contravening the prohibition on anticompetitive acquisitions and, on the other, the desire of the ACCC to engage with merger parties in relation to transactions rather than in litigation.

There are two processes available for parties who wish to seek clearance for a proposed merger: the informal clearance process, and the authorisation process. These are outlined below.

i Informal clearance

The informal clearance process is a merger review process that concludes with an informal decision by the ACCC as to whether it considers that a particular merger proposal is likely to contravene Section 50 of the CCA. If it considers that a proposed merger is likely to result in anticompetitive effects in Australia, the ACCC will 'oppose' it by giving the merger parties notice in writing of its informal view and (in the case of a public merger review) by issuing a media release (sometimes followed by a more comprehensive public competition assessment explaining its reasons in more detail). Otherwise, it will inform the merger parties in writing that it does not propose to intervene in the proposed merger. The ACCC's decision is 'informal' – it is effectively the exercise of the regulator's discretion. A decision opposing a merger (or clearing a merger only subject to remedies) cannot be appealed by the merger parties, and a clearance decision does not afford protection from third-party court action challenging the merger.

The process is usually commenced by the purchaser providing the ACCC with submissions that outline the nature and structure of the transaction, provide information on the relevant markets and assess the likely competitive impact of the transaction on those markets. The ACCC will also request information about customers, suppliers and competitors in those markets.

On receipt of the submissions, the ACCC will conduct its own brief internal review known as a 'pre-assessment', over approximately two to four weeks. For straightforward transactions, the ACCC may 'clear' the transaction at this point. In some cases, the ACCC may request the merger parties to agree to limited or targeted enquiries of particular market participants. In these transactions, the review may take four to six weeks.

Those transactions that are not cleared will then undergo a full public review process where the ACCC seeks the views of market participants in relation to the transaction. This public process will commence only once the transaction has been announced.

There are no statutory time periods for the informal review process. According to ACCC practice, the public review typically takes six to 12 weeks. At the conclusion of this process, it will decide whether to clear the proposed merger or enter into a second stage investigation by releasing a statement of issues, which is a public document setting out the ACCC's competition concerns and inviting interested parties to comment on the concerns raised in it.

The ACCC will commence a second-stage review where, following conclusion of the initial public market inquiries, it considers that the proposed merger raises substantial competition concerns that are incapable of being resolved without further information from the marketplace. There is no standard timeline for the second stage process. The duration of the review depends on, in particular, the complexity of the competition issues and whether merger remedies are necessary to resolve the competition concerns. The second stage review will generally be completed six to 12 weeks after the statement of issues is published. In some cases (for instance, where the merger is opposed), the ACCC may issue a public competition assessment setting out the reasons for its decision, though it is not required to do so and there is often a delay in issuing this if litigation is anticipated.27

Merger parties may request the ACCC to consider a merger proposal confidentially. The ACCC will first decide whether it is prepared to conduct a confidential merger review. If it is prepared to do so, it will endeavour to provide the parties with an interim view within four weeks as to whether the proposal is likely to raise competition concerns. Unless it is obvious that a confidential merger proposal will not raise any competition concerns, the ACCC will not provide an unqualified final view until the proposal is public and market inquiries have been conducted. Approaching the ACCC on a confidential basis may have some utility in transactions in which the parties do not wish to make a public announcement unless they have received an indication from the ACCC that obtaining clearance for the proposal may be a real possibility.

ii Authorisation

There is an alternative, more formal merger clearance route under which parties may seek that the ACCC 'authorise' the transaction. The ACCC has the power to authorise an acquisition where either (1) it forms the view that the transaction would not (and is not likely to) have the effect of substantially lessening competition in a market; or (2) the likely benefit of the transaction would outweigh the likely detriment of the transaction. The ACCC has 90 days in which to decide an application for authorisation, which can be extended by any additional period with agreement by the parties.28 Following the ACCC's decision, the parties (or third parties with sufficient interest) may seek limited merits review of the ACCC's decision by the Australian Competition Tribunal. The Tribunal has an additional 90 days to make its decision (with the potential to extend further if it receives further information or there are special circumstances).

Merger authorisation is a public process and the application and any submissions by interested parties are made available on the ACCC's website, subject to limited confidentiality claims. Merger authorisation, in this form, is a new power for the ACCC, coming into effect in November 2017. Previously the Australian Competition Tribunal (a separate body) had power to authorise mergers.

Some of the previously perceived advantages of the merger authorisation process no longer exist because the initial decision-making power is now held by the ACCC rather than the Tribunal. On the other hand, the disadvantages of the process remain potentially significant and few transactions can withstand the extended timetable and the opportunities for opponents to attack the transaction on a wide range of grounds (not just competition grounds).

In May 2019, the ACCC announced that it had received its first application for authorisation since the new process was introduced.29 The application involves the two largest automotive retailers in Australia, with AP Eagers Limited seeking authorisation to acquire Automotive Holding Group Limited.

iv OTHER STRATEGIC CONSIDERATIONS

Aspects of the Australian merger control regime that can take on particular significance in the context of global or multi-jurisdictional transactions include the interaction of the ACCC's information-gathering powers with its desire to exchange information and documents with overseas regulators; the absence of any minimum threshold for identifying share acquisitions that may be of concern; and ambiguity about the consequences of not obtaining informal clearance.

i Information gathering and exchange

The number of international mergers that are being reported to the ACCC has increased significantly over the past few years. The ACCC appreciates that parties to international mergers will often have to deal with multiple competition authorities around the world, and that it can be a challenging task to coordinate multi-jurisdictional filings with a view to ensuring that all regulatory processes are completed in time for the global closing of the deal. For these reasons, the ACCC is increasingly involved in discourse and cooperation with overseas competition authorities. Merger parties should endeavour to ensure that the ACCC clearance application is lodged simultaneously with the merger notifications in other jurisdictions (in particular, the EU and the US). The ACCC expects to be given the same notice of proposed mergers as other authorities.

The ACCC may share information of a non-confidential nature and discuss with other regulators the competition issues that are raised by a proposed merger. In controversial or complex international mergers, it will almost invariably request a confidentiality waiver from the merger parties, allowing it to exchange and discuss confidential information about a particular merger with overseas competition authorities. A refusal to grant a confidentiality waiver may cause delays in the review process.

In theory, the ACCC does not require a confidentiality waiver because Section 155AAA of the CCA allows it to disclose information provided to it in confidence to a 'foreign government body' (which includes antitrust authorities) if the ACCC chairperson is satisfied that particular confidential information will 'enable or assist' the foreign government body to 'perform or exercise any of its functions or powers'. Although it has this broad power to disclose confidential information to overseas regulators, the ACCC's practice to date has been to request the parties' consent in the form of a confidentiality waiver prior to such disclosure so that it can be confident that the overseas regulators are permitted to disclose confidential information to it.

The ACCC has the power to compel merger parties and non-merger parties to produce documents, provide information and make individuals available for interview. It is increasingly prepared to exercise these far-reaching powers when considering transactions, even if the transaction is subject to an 'ACCC clearance' condition precedent. In exercising these powers it may obtain information that concerns other jurisdictions. For example, the ACCC commonly requests merger parties to provide (voluntarily or compulsorily) copies of all documents disclosing the rationale for the transaction or consideration of its effects on competition, namely, studies, surveys and reports prepared by or for directors and other senior executives for the purposes of analysing the proposed transaction (such as board papers and presentations). This locally gathered information is likely to be of significance in global transactions, because the ACCC is statutorily entitled to disclose such information to overseas regulators.

ii Acquisitions of minority interests

Australia's merger control regime applies to any acquisition of shares in a corporation, irrespective of the level of shareholding involved. That is, even an acquisition of a minority interest (e.g., of less than 20 per cent) would be prohibited if it is likely to result in a substantial lessening of competition in a market in Australia. There is also no particular shareholding level at which it is customary to seek clearance from the ACCC. Whether it may be advisable to seek clearance from the ACCC for an acquisition of a minority interest depends on the circumstances of each individual case and, in particular, on the substantive competition effects the acquisition is likely to have in Australia. In determining the appropriate strategy, merger parties should note that there have been a number of cases in recent years where the ACCC has challenged proposed acquisitions that involved minority shareholdings of 20 or 30 per cent on the basis that the minority shareholding would give the acquirer the ability to 'exert a high degree of influence' over the target company.30

The Merger Guidelines of November 2008 (updated 2017) provide some guidance on how the ACCC analyses acquisitions of partial shareholdings:

  1. an acquisition of a controlling interest will be treated in the same way as an acquisition of all of the shares in the target company. While an acquisition of a majority interest will typically ensure control, an acquisition of a 'much lower' level of shareholding may suffice to confer control over the target company; and
  2. a level of shareholding that is less than a controlling interest may give rise to competition concerns where it alters the commercial incentives of the parties involved.

In horizontal mergers, the ACCC's main concern is the resulting interdependence between the rivals that may result in muted competition or coordinated effects. In vertical and conglomerate mergers, it is particularly concerned about foreclosure effects. A further significant concern that may arise in any of the three types of mergers is gaining access to commercially sensitive confidential information of competitors.

The ACCC has publicly reviewed two minority shareholding acquisitions in the past 12 months. Both transactions raised horizontal issues from the acquisition of the minority stake. In March 2019, IPH Limited sought informal clearance from the ACCC of its proposed acquisition of a 19.9 per cent stake in Xenith IP Group Limited.31 IPH and Xenith were the largest and second-largest suppliers of patent services in Australia. The ACCC cleared the acquisition on the basis of the competitive constraint that would continue to be imposed post-acquisition by the other suppliers of patent services, including QANTM. The ACCC is also currently investigating the completed acquisition by Qantas Airways Limited of a 19.9 per cent interest in Alliance Aviation Services Limited.32 In this case, the parties did not seek prior informal clearance from the ACCC and the ACCC initiated its own review.

iii Merger remedies

The ACCC has a strong preference for 'fix-it-first' remedies. In its Merger Guidelines of November 2008 (updated 2017), it states that 'wherever practicable, divestiture should occur on or before the completion date of the merger, particularly in cases where there are risks in identifying a (suitable) purchaser or asset-deterioration risks'. It will usually seek to require:

  1. the vendor to divest overlapping assets to a third party prior to, or simultaneously with, completion of the merger;
  2. the purchaser to divest a package of assets to an identified (and ACCC-approved) purchaser simultaneously with the completion of the merger; or
  3. a combination of both approaches.

In circumstances where none of the options is commercially viable, merger parties will need to devote significant time and resources to persuading the ACCC of their difficulties. A mere commercial preference for divestiture after consummation is unlikely to be sufficient to change the ACCC's mind.

Despite the ACCC's stated preference for fix-it-first remedies, it has accepted post-closing divestiture undertakings in a number of instances. In cases where the ACCC allows divestiture after completion, the merger parties will be required to agree to detailed and stringent 'hold-separate' obligations until divestiture to an ACCC-approved purchaser has occurred; a short period in which the sale process for the divestiture business can take place; 'fire-sale' provisions by a third-party agent if the divestiture business is not sold within the divestiture period (including a 'no minimum price' clause); and in some cases, a requirement to include 'crown jewels' in the fire sale to put more pressure on the parties to perfect the sale process within the allocated time and to make the divestiture business more attractive to third-party purchasers.

A corollary of the fact that the ACCC has accepted post-closing divestitures is that it typically inserts itself more deeply into the divestiture process. Where the divestiture will take place post-completion, the ACCC will now commonly require parties to seek its approval of the following aspects of the divestiture:

  1. any technical assistance or interim supply agreements proposed with the purchaser of the divestiture business (as part of the ACCC's approval of the proposed purchaser);
  2. the separation and management plan (as part of the ACCC's approval of the independent manager of the divestiture business); and
  3. the marketing and sale plan (as part of the ACCC's approval of the divestiture agent who will conduct the fire sale of the divestiture business if it is not sold within the time specified).33

A recent example of a case in which the ACCC accepted post-closing divestitures is CK Consortium's proposed acquisition of APA Group Limited.34 In that case, the ACCC required that the divestment (of the Parmelia Gas Pipeline, the Goldfields Gas Pipeline, the Kalgoorlie to Kambalda Pipeline and the Mondarra gas storage facility) be completed within a prescribed time frame to a purchaser approved by the ACCC. CK Consoritum was required to appoint an independent manager to manage the divestiture assets until the completion of the divestment. In the event the assets were not divested in the prescribed time frame, the undertaking required 'fire sale' of those assets by a divestiture agent at no minimum price.

Notwithstanding the ACCC's preference for divestiture remedies it will, in some circumstances, clear transactions on the basis of behavioural remedies. For example, in Metcash's acquisition of Home Timber and Hardware Group in 2016, the ACCC cleared the proposed acquisition on the basis of an undertaking from Metcash that it would not restrict independent hardware stores from acquiring products from non-Metcash sources, and it would not favour its own hardware stores over nearby independent stores. As part of the undertaking, the ACCC required the appointment of an independent auditor who will report to the ACCC and ensure that Metcash is meeting its obligations. This is a common feature of such behavioural undertakings.35

iv Options if the ACCC does not clear the transaction

There is no appeal avenue against an informal clearance decision by the ACCC. If the ACCC opposes a proposed merger, the choices for the merger parties are to seek a court declaration to the effect that the transaction will not have the likely effect of substantially lessening competition or to 'threaten' to complete the merger, thereby forcing the ACCC to seek an injunction from the court blocking the merger. (A third option, seeking authorisation of the merger from the Tribunal no longer exists as the power to authorise mergers now rests with the ACCC, as described above. Hypothetically, parties could seek authorisation from the ACCC on public benefit grounds after the ACCC opposed informal clearance, but this has not yet happened and seems unlikely.)

The pathway of merger parties seeking a court declaration that the proposed transaction does not contravene the CCA had been used only once before the application in May 2019 by Vodafone Hutchison Australia for a declaration that its merger with TPG would not contravene the CCA.36 The ACCC's preferred practice has been to seek an injunction to prevent a transaction proceeding, rather than permit a merger party to seek a declaration of non-contravention. In four merger cases that have been commenced in the Federal Court, this was the ACCC's approach.37

Court adjudication of mergers and acquisitions in Australia has been rare. There has been a total of five proceedings brought before the Federal Court and three before the Tribunal (under the previous authorisation process that no longer exists).38 The ACCC's track record of (litigation) opposing mergers has been described by the ACCC's Chairman as 'not good', and its latest case against Pacific National and Aurizon is no exception, with the Court dismissing the ACCC's case.39

v OUTLOOK and CONCLUSIONS

In recent years, the ACCC has repeatedly stated that it will approach mergers in already concentrated industries with a substantial amount of scepticism and a belief that competition benefits from a sufficient number of competitors. Parties contemplating acquisitions in concentrated markets will need to devote significant resources to moving the ACCC from this increasingly firmly held position. Where this is not successful, the ACCC has shown its willingness to oppose such acquisitions, including by commencing legal proceedings that (to date) it has found difficult to win.

In light of its most recent loss in the Pacific National/Aurizon case, we expect the ACCC to increase its lobbying for legislative change in relation to merger litigation in Australia. The likely form of that change is as yet unknown.


Footnotes

1 Peter Armitage is a senior partner, Ross Zaurrini is a partner and Amanda Tesvic is a senior associate at Ashurst.

2 In addition, Section 50A of the CCA applies to acquisitions that occur outside Australia that result in a controlling interest in a corporation and that would have the effect, or be likely to have the effect, of substantially lessening competition in a market in Australia.

3 The Federal Court may grant injunctions on such terms as it determines to be appropriate. In merger cases where closing of a proposed transaction is imminent, the ACCC may seek an interlocutory injunction restraining the merger parties from consummating the proposed transaction pending a hearing of the case on a final basis. The Federal Court has wide discretion in relation to the granting of interlocutory injunctions. The Federal Court must be satisfied that there is a serious question to be tried, and that the balance of convenience favours granting an interlocutory injunction. The Federal Court will then make its decision about the granting of a final injunction after a full trial.

4 Third parties cannot seek an injunction from the Federal Court to prevent a proposed transaction from closing.

5 To date, however, a divestiture order has never been made in Australia for breach of Section 50 of the CCA. Where the vendor is involved in the contravention, the ACCC may apply for a declaration that the transaction is void and order that the shares or assets be deemed not to have been disposed of by the vendor, and that the vendor refund payment made to it (CCA, Section 81(1A)).

6 The maximum penalty for corporations per contravention is the greater of A$10 million; three times the total value of the benefits that have been obtained by the contravention; or, if the court cannot determine the total value of those benefits, 10 per cent of the annual group turnover referable to activities in Australia. Penalties totalling A$4.8 million were imposed in 1996 on Pioneer International Limited and others for contravening Section 50.

7 For example, the ACCC investigated Primary Health Care's completed acquisition of Healthscope's pathology assets in Queensland in 2015, Qube Logistics' acquisition of Maritime Container Services in 2018 and Qantas Airways Limited's acquisition of 19.9 per cent stake in Alliance Aviation Services Limited in 2019.

8 ACCC, ACCCount, 1 July to 30 September 2018. See: www.accc.gov.au/system/files/ACCCount-July-
to-Sept-2018-quarter.pdf, p. 9, Table 2.

9 Final figures for the 2019 FY were not available at the time of publishing.

10 1 May 2018 to 8 May 2019.

15 The case also initially included an allegation that PN's proposed acquisition of Aurizon's Queensland intermodal business would be likely to have the effect of substantially lessening competition, but this was removed following Linfox's purchase of this part of the business.

16 The ACCC appealed the decision on 27 June 2019.

17 See the Australian Competition Tribunal's decision in Application by Sea Swift Pty Ltd [2016] A Comp T 9, at [47] and [245]-[251]: www.judgments.fedcourt.gov.au/judgments/Judgments/tribunals/acompt/2016/2016acompt0009 and echoed in Application by Tabcorp Holdings [2017] A Comp T 1, at [88]-[90]: www.judgments.fedcourt.gov.au/judgments/Judgments/tribunals/acompt/2017/2017acompt0001.

19 For example, in CK Consortium's proposed acquisition of APA Group, divestiture undertakings were offered at the outset of the ACCC process in June 2018. See www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/ck-consortium-proposed-acquisition-of-apa-group.

20 1 May 2018 to 30 April 2019.

27 The ACCC says its practice is to issue a public competition assessment (PCA) for all proposals where a merger is opposed; a merger is subject to undertakings; the parties seek such disclosure; or a merger otherwise raises important issues that the ACCC considers should be made public. It has not always adhered to this practice, though the last 12 months it has improved its performance as compared to the previous year, releasing several PCA's shortly after its decision. See, for example, Saputo/Murray Goulburn, Transport Partners/WestConnex and CK Consortium/APA.

28 If the ACCC does not make a decision in the 90 days or any agreed longer period, it is taken to have refused the application.

30 For example: BG Group's proposed acquisition of Origin Energy Ltd in 2008; Alinta Ltd's proposed acquisition of AGL in 2006; DUET Consortium's proposed acquisition of the DBNG Pipeline in 2004; and AGL's proposed acquisition of the Loy Yang power station in 2003.

33 Recent examples of these requirements are found in CK Consortium's proposed acquisition of APA Group. See: www.accc.gov.au/public-registers/mergers-registers/public-informal-merger-reviews/ck-consortium-
proposed-acquisition-of-apa-group.

35 Another example of a behavioural undertaking accepted by the ACCC is in the proposed acquisition by Sydney Transport Partners Consortium of a majority interest in WestConnex in August 2018. In that case, the behavioural undertaking required TransUrban to publish traffic data that would assist all bidders to compete for future tollroad concessions. See: www.accc.gov.au/public-registers/undertakings-registers/transurban-limited.

36 Australian Gas Light Company v. Australian Competition & Consumer Commission (No. 3) (2003) 137 FCR 317: www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2003/2003fca1525.

37 See Boral's proposed acquisition of Adelaide Brighton: www.accc.gov.au/media-release/accc-institutes-against-boral-limited; see also Toll Holdings' proposed acquisition of Patrick Corporation: www.accc.gov.au/media-release/accc-institutes-proceedings-against-toll-holdings-limited; Metcash's proposed acquisition of the Franklins supermarket business: www.accc.gov.au/media-release/metcash-franklins-decision-disappointing; and Pacific National's proposed acquisition of Aurizon's intermodal business:
www.accc.gov.au/media-release/accc-takes-action-against-pacific-national-and-aurizon. The ACCC's decision to oppose the merger of TPG and Vodafone was challenged by Vodafone in May 2019.

38 See Application for Authorisation of acquisition of Macquarie Generation by AGL Energy Limited [2014] ACompT 1: www.judgments.fedcourt.gov.au/judgments/Judgments/tribunals/acompt/2014/2014acompt0001; see also Application by Sea Swift Pty Limited for the proposed acquisition of certain assets of Toll Marine Logistics Australia's marine freight operations [2016] ACompT 9: www.judgments.fedcourt.gov.au/judgments/Judgments/tribunals/acompt/2016/2016acompt0009, and see also Applications by Tabcorp Holdings Limited for authorisation to acquire shares in Tatts Group Limited [2017] ACompT 5: www.judgments.fedcourt.gov.au/judgments/Judgments/tribunals/acompt/2017/2017acompt0005. A further application was also brought by Murray Goulburn Co-operative Co Limited for merger authorisation of its proposed acquisition of Warrnambool Cheese and Butter Factory, but was subsequently withdrawn (2013/4).

39 The ACCC appealed the decision on 27 June 2019, stating that its appeal will focus on the Court's ability to accept access undertakings to alleviate competition concerns in merger cases: www.accc.gov.au/media-release/accc-appeal-in-pn-aurizon-case.