Merger reviews

Merger parties are not legally required to notify the ACCC of a merger and have the option of proceeding with the merger without seeking any regulatory consideration. However, this will not prevent the ACCC from subsequently investigating the merger, including making public inquiries to assist its investigation and, if necessary, taking legal action.

Types of merger reviews

Proceeding without regulatory approval may put merger parties at risk of the ACCC or other interested parties taking legal action.

Merger parties are encouraged to approach the ACCC as soon as there is a real likelihood that a proposed merger may proceed, to discuss possible competition issues and options for having the matter considered. This may be done on a confidential basis.

Merger parties have three avenues available to have a merger considered and assessed on competition grounds:

  1. informal merger review
  2. formal merger clearance
  3. merger authorisations.

Informal merger review

The informal merger review process provides the merger parties with the ACCC’s informal view on whether a merger proposal is likely to breach s.50 of the Competition and Consumer Act. An informal view by the ACCC not to oppose a merger does not provide the merger parties with protection from legal action by the ACCC or other parties.

There is no application form or fee payable for merger parties requesting an informal view from the ACCC.

Merger parties should provide the Mergers and Adjudication Group with a submission outlining the nature and extent of the proposed acquisition, in the manner outlined in:

The ACCC may initiate an informal review in response to information from sources other than the merger parties including complainants, information from Australian and overseas regulators and via the ACCC’s own monitoring activities. The ACCC may also conduct reviews of completed mergers.

The ACCC will conduct an informal review either confidentially or publicly. Generally, a public informal review will be necessary where the proposed merger raises competition concerns or the ACCC requires information from the market to assist its decision making. Whenever the ACCC conducts a public review, it will make the progress of its review, and its decision, available on its website.

Indicative timelines will be posted on the mergers public register for most public informal merger reviews. The expected decision date will not generally be posted when the merger has already been completed and/or when no submission has been received from the merger parties.

Information relating to the analytical framework applied to the assessment of merger proposals (i.e. the merger factors) and the role of s.87B undertakings in merger reviews can be found in:

Formal merger clearance

Formal merger clearance confers legal protection to the person to whom clearance is granted from the application of s.50 of the Competition and Consumer Act. This means that neither the ACCC nor any other party may initiate legal action on the basis of an alleged contravention of s.50 so long as the merger takes place in accordance with the clearance.

Applications for merger clearance must be made by the person seeking the clearance. Only the acquiring party may apply for clearance - formal clearance cannot be sought by the target.

The ACCC may only grant formal clearance where it is satisfied that the merger would not have the effect, or be likely to have the effect, of substantially lessening competition.

To assist prospective applicants, the ACCC encourages parties to participate in informal discussion with, and seek procedural guidance from, the ACCC before lodging an application.

Clearance may not be granted for mergers that have already taken place.

Information relating to the analytical framework applied to the assessment of merger proposals (i.e. the merger factors) and the role of s.87B undertakings in merger reviews can be found in:

Applications may be made for minor variation, revocation and revocation and substitution of clearances.

Merger parties must submit an application using the appropriate form for formal clearance and include payment of the prescribed fee.

The fee for formal merger clearance is currently set at $25,000. The regulations require that the applicant give an undertaking under s.87B that the applicant will not complete the merger while the application is being considered by the ACCC.

See: Formal Merger Review Process Guidelines

Application forms for formal merger clearance

The appropriate forms for applications for formal merger clearance are attached below. Applicants should have regard to the questions contained in the form and provide detailed responses including evidence in support of any contentions made in the application or any accompanying submissions.

Form O - Application for s50 merger clearance [ pdf (46.59 KB) ]

Form P - Application for minor variation of merger clearance [ pdf (18.4 KB) ]

Form Q - Application for revocation of merger clearance [ pdf (13.78 KB) ]

Form R - Application for revocation and substitution of merger clearance [ pdf (48.07 KB) ]

Form W - Application for review of merger clearance [ pdf (40.56 KB) ]

Merger authorisations

Merger parties may seek legal protection from court action under s.50 of the Competition and Consumer Act by applying to the Australian Competition Tribunal (the Tribunal) for authorisation of the merger proposal.

The Tribunal may grant authorisation if it is satisfied that the proposed merger is likely to result in such a benefit to the public that the merger should be allowed to occur.

Applications for authorisation must be made by completing and lodging Form S Application for merger authorisation and payment of the prescribed fee with the Tribunal as set out in the Competition and Consumer Regulations 2010 and available on the Tribunal’s website.

Once authorisation is granted for a merger, neither the ACCC nor any other party may take action under s.50 in respect of the merger. The protection is conferred once authorisation is granted and only for the period authorisation is granted.

Relevant guidelines

More information

Public merger registers