Competition Law

Australian Competition Law and Policy Discussion

Posts Tagged ‘creeping acquisitions’

Creeping Acquisitions Bill Introduced

Posted by Julie Clarke on 27 May 2010

The Competition and Consumer Legislation Amendment Bill was introduced into Parliament today.  It includes the following key amendment to the competition law provisions:

(1) replacing the words ‘a market’ in section 50(1) with ‘any market’

(2) Removing the requirement that a market, for purposes of the merger provision, be a ‘substantial’ market, by removing the word substantial from subsection 50(6)

The Government claims that this will address some of the concerns raised about creeping acquisitions.

Detail on the changes

Subsection 50(1)

The existing s 50(1) provides:

A corporation must not directly or indirectly:

(a) acquire shares in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.

The bill proposes to amend the last two words from ‘a market’ to ‘any market’. This, the EM explains (at para 1.33)  is to ‘clarify the ability of the ACCC or a court to consider multiple markets when assessing mergers’ and to ‘prevent businesses from being able to challenge a decision that a proposed merger or acquisition would, or would be likely to, substantially lessen competition in a market in breach of section 50, on the grounds that the lessening of competition identified was in one or more markets other than the primary market in which the merger or acquisition would occur.’

Subsection 50(6)

The existing provision provides that, for purposes of s 50:

market means a substantial market for goods or services in:

(a) Australia; or

(b) a State; or

(c) a Territory; or

(d) a region of Australia.

The bill proposes to remove the word ‘substantial’. The government claims that the current provision is unclear about whether or not the market definition extends to ‘local’ markets and is also unclear on just how ‘substantial’ a market must be to be caught. In particular, they claim (at para 1.28 of the EM) that removing the word substantial will ‘remove the risk … that a court may in the future adopt the view that the substantiality of a market should be determined with reference to Australia as a whole.’ The EM goes on to state that the ‘amendment will also remove doubts regarding the ACCC’s ability to examine markets where creeping acquisitions concerns may arise in the future’.

They are the proposed changes in a nutshell.  More detail to follow soon.

Note: Dr Emerson’s second reading speech is now available.

Posted in Legislation, Mergers | Tagged: , | 1 Comment »

Senate Committee rejects amendments to merger laws

Posted by Julie Clarke on 13 May 2010

The Senate Economics Legislation Committee has recommended that the Trade Practices Amendment (Material Lessening of Competition – Richmond Amendment) Bill 2009 be rejected.

The Bill was introduced by Senator Nick Xenophon and drafted by Associate Professor Frank Zumbo.  According to Senator Xenophon it was a response to an event occurring in West Richmond, Adelaide, involving Woolworths’ attempt to purchase a service station site next to a small independent site run by ‘Mr Fares’.  Of course, this has nothing to do with the content of the Bill, which relates to mergers, but that didn’t stop the Bill’s proponents from using this example as justification for the Bill (the Senate Committee correctly noted that the ‘anticipated’ conduct complained of would relate to predatory pricing not creeping acquisitions, despite claims to the contrary by Zumbo – and that, ironically, the Bill is likely to hurt Mr Fares by removing his ability to sell his business asset to larger competitor).

The Bill itself was designed to do two things:

  • lower the threshold for prohibited mergers from those that substantially lessen competition to those that materially lessen competition
  • address creeping acquisitions by preventing a corporation with substantial market share from merging or acquiring shares/assets which would have the effect of lessening competition in a market (no ‘substantial’ or ‘material’ lessening required)

Are Australia’s current merger laws too permissive?

Before considering their view on the Bill itself, the Committee considered the claim by leading proponent of the Bill, Frank Zumbo, that the ACCC approves 97% – or nearly all – mergers and that this proved Australia’s merger laws were too permissive.  The Committee rejected this claim, finding that it was misleading because it excluded mergers not assessed because they do not substantially lessen competition and those not proposed because they clearly do have that effect.  As a result, it did not accept that the 97% approval figure was accurate or that it proved that Australia’s merger regime was too permissive.

Lowering the merger threshold

On the first point the Committee (Xenophon dissenting) held that alteration of the merger test would generate uncertainty when there was no sound evidence suggesting a problem with the current bill.  They also did not accept that the different wording would necessarily lower the threshold as Zumbo had claimed.  They concluded that the concept of ‘substantially lessening competition’ was well established in Australia and elsewhere

Creeping acquisitions

In relation to this issue the Committee (Xenophon dissenting) noted that the change proposed would be ‘arbitrary and contentious’.  Although they rejected the claim by opponents of the bill that the bill would set an absolute market share cap (although I’m not sure that in this respect they correctly interpreted the criticisms) they did find that the change could potentially harm the small business it was intended to protect.  They were also influenced by the Government’s current proposal to clarify the definition of market in relation to mergers, to ensure it was capable of including ‘local market’, which they considered might address some of the concerns raised about creeping acquisitions.

The dissent

Naturally Senator Xenophon, who introduced the bill, dissented and recommended passage of the bill with some modification.  He placed a lot of emphasis on the ‘Fares’ case (which doesn’t relate to merger law) and Zumbo’s 97% figure, rejected by everyone else as false evidence of the ‘leniency’ of Australia’s merger laws – claiming the statistic suggested the threshold was ‘far too onerous and high’.  He also claimed

The material lessening of competition test would assess the reduction in consumer choice as a result of a merger or acquisition, whereas the substantial lessening of competition test effectively only focuses on pricing power. [at 1.25]

This is patently false and, one would wonder where he got this idea, until you skip to paragraph 1.26 and see that it is derived from a quote from Assoc Prof Zumbo’s submission.  That, of course, does not make the statement true.

In relation to the creeping acquisition provision, the core focus of Senator Xenophon is protection of small business from ‘aggressive and arguably anti-competitive strategies of larger and more powerful corporations such as Woolworths’.  If that’s Xenophon’s concern, he’s focusing on the wrong provision – the proposed changes to the merger laws would not correct this and existing misuse of market power provisions already address this, at least to a degree – if he’s concerned with the way in which market power is used he should focus attention on s 46 and stop messing with our merger laws which represent international best practice.  He should also be reminded that protection of small business is not the goal of our competition law.

Phew!

As a private member bill this one was always going to struggle to get up – but stranger things have happened in Australian competition law in the past – particularly in election years – so a general ‘phew’ describes my relief that the Senate Committee got it right this time – hopefully the Senate listens to them and buries the bill – hopefully deep enough that it doesn’t resurface any time soon.

View full report

Posted in Competition Policy, Legislation, Mergers | Tagged: , , | 1 Comment »

Creeping acquisitions … they won’t go away

Posted by Julie Clarke on 9 March 2010

The Government recently announced it would remove the reference to ‘substantial’ from the definition of markets for purposes of mergers (see previous post on this).  In so doing Craig Emerson claimed that the change would fulfill the Government’s election promise to deal with creeping acquisitions.  This, it was hoped, would end the crazy talk about substantial revisions to the merger laws and might result in the Government’s Discussion Paper 1 and Discussion Paper 2 on creeping acquisitions being swept under the carpet.

Not, however, if Assoc Prof Frank Zumbo has his way.  I have previously noted Zumbo’s claims, reported in the Fin Review, that the ‘anti-merger’ law (as he calls it) has ‘dangerous gaps and needs a major overhaul.’  Those ‘gaps’ weren’t explained in the Fin Review piece, but Zumbo has just published an article in the Trade Practices Law Journal (Zumbo, Don’t bank on bank competition: The case for effective laws against anti-competitive mergers and creeping acquisitions’ (2010) 18 TPLJ 26) in which he sets out his concerns about Australia’s current merger law and makes some radical (but familiar if you have read the earlier discussion papers and proposed  Richmond Amendment) recommendations for reform.  I won’t address them all but will note a couple of the highlights:

Substantial lessening of competition test to be replaced with ‘material lessening of competition’

This recommendation is, of course, identical to that proposed in the Richmond Amendment and with essentially the same (brief) reasons given – the current test, it is argued, imposes an almost insurmountable threshold for the ACCC.  No mention, of course, that the SLC test is what is adopted in most other countries and is consistent with other provisions in the Act, with the result that it provides greater certainty for business and their advisors.  This is particularly important for mergers, given that there has only been one case before the courts dealing with the current substantive merger test – as merger determinations are almost (in practice if not in law) the exclusive domain of the regulator, parties and their advisors need to look to judicial interpretation of this phrase in other parts of the Act.  ‘Material lessening of competition’ has no counterpart in the Act.   It is also not clear, as Zumbo claims, that ‘material lessening of competition’ would provide a ‘lower threshold’ for assessing mergers.

The catalyst for the change, according to Zumbo, is the high clearance rate of mergers in Australia (he claims the ACCC approves around 97% of mergers – this is a point made at least four times in this brief article) and that, according to him, ‘substantial lessening of competition’ has come to be equated with the ‘substantial market power’ test in s 46.  Nowhere is evidence provided for this and nowhere does he place this in context – this statistic is consistent with that produced by other merger regulators, including the US, and reflects the simple fact that most mergers are not anti-competitive.  He also claims this high clearance rate is responsible for the high concentration rate of markets in Australia, without any reference made to other possible contributors, such as Australia’s small population and relative geographic isolation.

The Senate Economics Committee was due to report on the Richmond Amendment next week, but has had its deadline extended until 18 May.

Targeting creeping acquisitions

Zumbo also claims, again relying on the high clearance rate of mergers as ‘evidence’ that our merger laws are ‘far too permissive’, that targeting creeping acquisition laws is ‘essential to having a world’s best competition law framework’ (without providing any evidence of how worlds best practice requires this – there’s no mention of it in International Competition Network or OECD merger recommendations and it is not an obvious feature of most merger laws around the world.  To address this concern, Zumbo recommends that corporations with substantial market share not be permitted to acquire shares or assets if it would lessen competition in a market. Essentially, if you have substantial market share (even if you have no power because of excess industry capacity, low barriers to entry or the threat of import competition) then you can’t merge because an ‘any lessening of competition’ threshold will almost always be met – at least for horizontal mergers.  Despite Zumbo’s concern about Australia having a ‘worlds best practice competition law’, no mention is made of the fact that merger decisions made on the basis of market share are expressly inconsistent with international best practice which recognises that market share provides a poor proxy for market power (and it is market power, not market share alone, which poses a threat to consumers).  In particular, the ICN Recommended Practices for Merger Analysis (developed in 2008 and revised in 2009) state clearly (Recommendation II(C)) that:

Jurisdictions that use market concentration and/or market shares to presume competitive harm should ensure that any such presumption may be overcome or confirmed by a detailed review of market conditions

Zumbo’s eagerness to substitute market share for market power contributed to the infamous Birdsville Amendment (see earlier post on this) to our misuse of ‘market power’ provisions.  Let’s hope the Government thinks better of making such a drastic change on this occasion.

Posted in Mergers | Tagged: , , , | Leave a Comment »

Creeping Acquisition Amendments Revisited

Posted by Julie Clarke on 4 February 2010

I have previously discussed the Government’s proposed changes to the definition of market, for purposes of mergers – essentially their plan to remove the word ‘substantial’, so that a merger would be prohibited where it substantially lessened competition in any local, regional or national market, whether or not that was considered a ‘substantial’ market.

The problem with the reform (or at least it’s effectiveness in achieving the government’s objective of curbing ‘creeping acquisitions’) is that the word ‘substantial” rarely, if ever, has any impact on the ACCC’s determination of the ‘relevant’ market for assessing likely competitive impact.  I’ve previously referred to comments by former chair of the ACCC’s Merger Review Committee, Prof Stephen King has made this observation in this respect:

Markets are based on substitution. If properly defined, an economic market for merger analysis captures the relevant level of competition. A market might be nationwide or even international. Or it may simply cover a single town or even part of a town … The key issues are – what is the nature of competition and what will the merger or acquisition do to this competition. If the merger substantially lessens competition in a properly defined economic market then it will harm consumers and the economy. The merger should be opposed. Requiring that the market is also ’substantial’ is redundant. So if Durie’s speculation is correct, the government will be getting rid of a redundant but confusing adjective!

The ACCC’s Merger Guidelines (updated in November 2008) also express the view that a ‘small’ market can be a ‘substantial market’ and that ‘substantial’ is not necessarily determined by geographic size. Although the Guidelines have no force in law, so a Court might interpret the meaning of ‘substantial’ differently in this context, the fate of mergers in Australia is, in practice, determined by the ACCC (there has been only one challenge to the ACCC’s decision not to informally approve a merger since the current test came into operation), so that its Guidelines reflect the current application of the law.  Consequently, although removal of the word ‘substantial’ may remove a ‘redundant’ term, it is unlikely to impact on the number or type of mergers approved by the ACCC.  It is clearly unlikely to have any impact on the ‘creeping acquisitions’ about which the Government seems so concerned.

This appears to be the consensus of opinion, as reported by Sam McKeith on page 11 of today’s Fin Review.  However, also reported in that item are commends by Assoc Prof Frank Zumbo and Queensland Consumers Association spokesman Ian Jarrett, that need to be challenged.  Zumbo claims that the ‘anti-merger law [first, it’s not an ‘anti-merger’ law, but I’ll let that one go] has dangerous gaps and needs a major overhaul.  This fiddling will not fill the dangerous gaps in the existing anti-merger law’.  It appears he also considers creeping acquisitions to be a ‘rapidly growing threat to competition and consumers’.  None of these claims appear justified.  It’s not clear what the ‘dangerous gaps’ are.  Our merger laws are broadly consistent with those in other OECD countries, which do not specifically or separately address ‘creeping acquisitions’, so that although in theory there is a gap in the law not addressing potentially anti-competitive impact of a series of small mergers, there is little evidence that this is currently a problem in practice (even the ACCC in its Grocery Report could not identify a problem associated with creeping acquisition in the grocery sector, despite having every incentive to do so: ‘The ACCC does not consider that acquisitions by Coles and Woolworths of smaller competitors over time are a significant current concern in the grocery retail sector’ (p xxi).  It’s also not clear what ‘major overhaul’ would be required to correct any perceived gap.

Ian Jarrett made a different but related claim, that ‘the high proportion of unopposed mergers indicated the ACCC needed more power to stop creeping acquisitions’.  This conclusion simply does not follow.  Most mergers are cleared because most mergers are not anti-competitive and the same holds true in most jurisdictions in which notification of mergers meeting certain thresholds is required; for example, the US challenges less than 5% of mergers notified to its competition agencies.

A law removing the word ‘substantial’ from the definition of market is to be welcomed because it is a redundant term which (it is clear) is capable of causing confusion.  But let’s not pretend it’s something that it is not and let’s not overstate the problem (if there is one) of ‘creeping acquisitions’ in this county.

Posted in Competition Policy, Mergers | Tagged: , , | 2 Comments »

No need for ‘substantial’ markets for mergers?

Posted by Julie Clarke on 22 January 2010

Out of the blue, the Government today announced it proposed to change the definition of market for purposes of merger review. The current definition of market refers to a ‘substantial market for goods or services’ and the proposal involves removal of the word ‘substantial’.

In his press release, competition minister Craig Emerson claims that this change is intended to fulfill the Government’s election promise to deal with ‘creeping acquisitions’.  It is tough to see how it will do this.  Former chair of the ACCC’s Merger Review Committee, Prof Stephen King has made this observation in relation to the proposed change:

Markets are based on substitution. If properly defined, an economic market for merger analysis captures the relevant level of competition. A market might be nationwide or even international. Or it may simply cover a single town or even part of a town … The key issues are – what is the nature of competition and what will the merger or acquisition do to this competition. If the merger substantially lessens competition in a properly defined economic market then it will harm consumers and the economy. The merger should be opposed. Requiring that the market is also ‘substantial’ is redundant. So if Durie’s speculation is correct, the government will be getting rid of a redundant but confusing adjective!

It is also unclear how this proposal fits with other proposals directed toward creeping acquisitions, including the Government’s own Creeping Acquisition Discussion Paper No 2 (for which submissions closed on 10 July 2009 and the proposed ‘Richmond Amendment‘, currently under review in the Senate.  The press release is light on detail in this respect.

The Conduct Code Agreement 1995 now requires the Government to consult with state and territory governments in relation to the proposed amendments (full details of which are not yet available) before their implementation.  Hopefully more details will emerge in the coming weeks.

The papers

News of the proposal was reported in the following papers this morning:

  • David Crowe, ‘ACCC gets tough on creeping giants’ Australian Fin Review, p 5.
  • John Durie, ‘Competition Minister takes aim at creep for control’, The Australian
  • John Durie, ‘Craig Emerson plans changes to the law to stop creeping takeovers’, The Australian
    Some notes on this item: it claims that ‘markets such as the US and the EC rely more on turnover tests than market share in determining whether a deal should be stopped.’ Actually, no they don’t.  The US and EU (we’re not allowed to call it the European Community anymore, post Lisbon Treaty) rely on turnover tests to determine whether parties MUST notify their mergers to relevant authorities; they impose a mandatory pre-merger notification obligation on mergers meeting certain threshold and jurisdictional tests.  Turnover itself is not part of the competition assessment in any of those jurisdictions.  In addition, the change to notification thresholds in the US from approx $65m to $63m (referred to in the article as evidence of the US ‘widening its net’) reflects an annual adjustment designed to account for changing levels of gross national product – it is designed to keep the ‘net’ steady, rather than to increase or reduce it.

Posted in Competition Policy, Legislation, Mergers | Tagged: , , , | 2 Comments »

Creeping acquisitions … the journey continues …

Posted by Julie Clarke on 1 December 2009

Yesterday the  Senate referred the Trade Practices Amendment (Material Lessening of Competition—Richmond Amendment) Bill 2009 (introduced into the Senate last Thursday) to the Senate Economics Committee for an inquiry and report.  This is a private member’s bill, rather than a Government bill, sponsored by Nick Xenophon.

The Bill proposes to amend the TPA in relation to creeping acquisitions.  The proposal involves ‘preventing corporations from directly or indirectly merging, or acquiring an asset, which would result in ‘material’ lessening of competition in the relevant market.  The word ‘material’ refers to a pronounced or  noticeably adverse effect on competition’, a lower threshold than the current test.   It would also prevent any corporation with substantial market share acquiring shares or assets if the acquisition would have the effect or likely effect of lessening competition (no material effect necessary).

This differs significantly from the two government issues papers on creeping acquisitions released last year and earlier this year.

I have much to say on the proposal but, as the Senate has requested withholding submissions until released by the Committee, I will refrain from expressing my views until a later date.  [Note: my submission has now been released by the Committee and can be viewed online] At this stage it is hard to know if this is a serious proposal (leaving aside content, as a private member’s bill it is almost certainly doomed to failure) or is designed to provoke the Government into releasing its own creeping acquisition legislation – something it originally promised to do by mid-this year.

One thing is certain: Economists will have fun with this one. So will I. Submissions are due by 18 December.  Reporting date is 18 March 2010.

View all submissions.

Posted in Legislation, Legislation (TPA/CCA), Mergers | Tagged: , | 3 Comments »

Creeping Acquisition submissions due … later

Posted by Julie Clarke on 11 June 2009

Submissions on the ‘Creeping Acquisitions – The Way Forward‘ discussion paper are due tomorrow.  The paper proposes only one type of creeping acquisition law – a market power based law which would prevent acquisitions by corporations with substantial market power any time the acquisition would further ‘enhance’ their market power.  No guide to how much it would need to ‘enhance’ their power is provided …

For more see my submission to the inquiry.

UPDATE: I raced to get my submission in by the deadline of 12 June but it seems I need not have bothered.  Today the web site has been updated with a notice that “The closing date for submissions has been extended by four weeks, to 10 July 2009”.  Naturally this will also set back the introduction of any creeping acquisition law, which the Government previously announced would occur by 30 June (this, is of course, a good thing … better that they set it back until … never)

Posted in Competition Policy, Mergers | Tagged: , | Leave a Comment »

Creeping towards creepy ‘creeping acquisition’ laws

Posted by Julie Clarke on 6 May 2009

The government today released a second discussion paper relating to the introduction of creeping acquisition laws in Australia.  It is disappointing to say the least.  In the first discussion paper the government put forward two possible models; the ‘aggregation model’ (which would be consistent with the policy underlying our current merger prohibition) and the ‘substantial market power model’ (SMP) which, in prohibiting mergers by firms having substantial market power which would have ANY effect on competition, would represent a serious departure from existing merger policy.

Unfortunately, the second discussion paper retains an emphasis on a market power model.  It suggests abandoning the reference to ‘any lessening of competition’ (although not because this is inconsistent with current economic or competition theory, but rather because it might result in ‘ambiguity and risk reinterpretation by the Courts of the “substantial lessening of competition” test in the existing prohibtion in section 50’ – why this would be the case remains a mystery) and replacing it with a model built around increases in market power (are we to return to a partial dominance test for mergers in Australia?).  The suggested format of the prohibition is set out in para 12 as follows:

(1) A corporation that has a substantial degree of power in a market must not directly or indirectly:

(a) acquire share in the capital of a body corporate; or

(b) acquire any assets of a person;

if the acquisition would have the effect, or be likely to have the effect, of enhancing that corporation’s substantial market power in that market.’

In effect, this is not significantly different from the first flawed proposal to ban all mergers by corporations having substantial market power where the merger would have any effect on competition.  At least where the merger is horizontal, any firm with market power that mergers is likely to enhance their market power (and simultaneously lessen competition) even if only to an insignificant level.  I have previously outlined the problems with this approach.

Another approach suggested was to allow the Minister to unilaterally ‘declare’ a corporation or product/service sector where he/she has concerns about potental harm from creeping acquisitions and to give the Minister power to require notification of certain acquisitions by declared corporations etc (there is currently no mandatory notification regime for mergers in Australia).  The test set out above would then apply to those notified transaction.

The discussion paper at least acknowledges there is a ‘fine balance to be struck’ when regulating creeping acquisitions and seeks views on:

1. The potential unintended consequences of a creeping acquisitions law that targets enhancements to a corporation’s substantial market power …

2. The potential unintended consequences of a creeping acquisitions law that targets ‘declared’ corporations or product/service markets.

3. how many potential unintended consequences may be addressed or minimised, particularly in the design of the law

4. the costs and benefits associated with the option of including a mandatory notification requirement, using thresholds unique to each particular declaration, determined by the Minister.

Two questions are asked (each of which contain multiple questions … who wrote this thing?): (1) What are your views on the two regulatory options mentioned above? What potential unintended consequences need to be considered? How might these unintended consequences be addressed?  (2) Are there alternative regulatory or non-regulatory options …? How might these work in practice? what are the costs and benefits?

The models suggested are seriously flawed; both are simply adaptations of the SMP model.  The more appropriate (though not perfect) aggregation model appears to have been dismissed without much serious consideration – the discussion paper says only that the ‘aggregation model was deemed impractical by many’ without further explanation – although the focus seems to have been on the ACCC’s submission which claimed this approach might prove unworkable in practice.

In releasing this discussion paper (which comes 7 months after submissions for the first discussion paper closed), Chris Bowen stated ‘The release of this discussion paper reflects the Government’s election commitment to implement sensible reform in relation to creeping acquisitions.’  Unfortunately there is little that  is ‘sensible’ about this discussion paper. Chris Bowen’s Press Release also defines creeping acquisitions as: ‘the acquisition of a number of individual assets or businesses over time that may collectively raise competition concerns, but when considered in isolation, are unlikely to be captured by the existing mergers and acquisitions test under section 50 …’.  I can only suggest the Government reflect on their own definition when formulating an appropriate test – the SMP test is far broader than the conduct referred to in this definition.

Submissions on this discussion paper are due by 12 June. It seems I have some writing to do …

Posted in Mergers | Tagged: , | 5 Comments »

Mergers – creeping acquisitions

Posted by Julie Clarke on 16 April 2009

A discussion paper on creeping acquisitions was released by Chris Bowen MP in September last year; submissions closed on 10 October 2008.

Today, for the first time, there has been some indication that the discussion paper has not been forgotten; Chris Bowen, in an interview with Kieren Gilbert on SkyAgenda, stated that

“In the not too distant future I will be releasing some more information about a proposed way forward, and we will again be consulting on that. But we will make no apologies for proceeding resolutely, but cautiously, because this has the potential to be a very important change but we need to make sure we get the balance very clearly right.” [it’s a pity the same approach does not appear to have been adopted for criminal cartel laws … but that’s another issue]

He later said that the Government would deal with the issue this term, that once ‘we put out the proposed way forward there will be a period of consultation’ and that he hopes to ‘have legislation into the Parliament this year’.

In the course of the interview Bowen also stated that:

“Other countries have divestiture powers, which the ACCC doesn’t have, we have taken the view that we should go down the creeping acquisitions route.”

Of course, Australia does have divestiture powers – the ACCC does not have them directly (nor do most regulators), but may apply to the Court for a divestiture order under s 81(1) of the Act.  It also regularly administers enforceable undertakings (often at the ACCC’s instigation) which may include divestiture obligations – it is currently considering one such proposal for Baiada Poultry.  Divestiture is, arguably, a more important remedy in Australia than other jurisdictions given that there is no compulsory notification regime in Australia to ensure that all potentially anti-competitive mergers are vetted before consummation.  In any event, it is not clear why creeping acquisition laws should be viewed as an ‘alternative ‘ to divestiture.  Hopefully the report will enlighten us further …

Posted in Mergers | Tagged: , | 2 Comments »

 
%d bloggers like this: