Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Australian Competition and Consumer Commission seeks public comment on draft merger guidelines, (Jul 3, 2013)

By John W. Arden, J.D., LL.M.

The Australian Competition and Consumer Commission (ACCC) released draft Merger Review Process Guidelines for public comment on July 1. The ACCC publishes these guidelines to provide businesses and legal practitioners with guidance on the agency’s approach to informal reviews of mergers and acquisitions pursuant to the Competition and Consumer Act 2010.

The draft incorporates a number of recent changes in ACCC processes, including:

• A pre-assessment process for dealing expeditiously with a large number of notified non-contentious mergers. This process allows the ACCC to focus its efforts on those mergers that raise more significant concerns under section 50 of the Competition and Consumer Act 2010;

• A process providing parties to a merger with feedback on issues and concerns raised by the market; and

• A clarified approach to releasing Public Competition Assessments—published summaries of the ACCC’s reasons for its decisions in complex or contentious merger matters. This approach includes publishing reasons as soon as practicable after a decision, except when there is a prospect of litigation.

“The draft Merger Review Process Guidelines incorporate important recent developments in the ACCC’s approach to reviewing mergers, while also proposing some additional changes to the processes which are aimed at improving efficiency and transparency,” said ACCC Chairman Rod Sims. “The last substantive revisions to the Process Guidelines occurred in 2006 so it was clear that some aspects no longer accurately reflect the way that the ACCC undertakes informal merger reviews.”

The draft Guidelines propose new changes to improve certain aspects of the ACCC’s informal review process. In particular, the ACCC proposes to move away from setting standard periods for all public reviews and will instead set more realistic timeframes where it is clear from the outset that a review will take longer given the likely competition issues or complexity. In addition, all timelines will initially include a ‘provisional’ decision date, which will be re-assessed after the ACCC is in a position to better understand the breadth and complexity of the issues a merger raises following market inquiries.

The ACCC invites submissions on thedraft Merger Review Process Guidelines. The closing date for submissions is July 19, 2013. Written submissions should be forwarded to mergers@accc.gov.au. Submissions also may be sent by fax to (02) 6243 1212 or by mail to MAG Co-ordination and Strategy Branch, ACCC, GPO Box 3131, Canberra ACT 2601.

News: Antitrust