Initiating an informal review

The ACCC investigates and reviews those mergers it becomes aware of that have the potential to raise concerns under s. 50. Such mergers are generally brought to the ACCC’s attention by merger parties who request an informal clearance. Alternatively we may become aware of a proposal through media speculation, from complaints or from advice from other regulatory bodies.

There are two types of informal merger reviews conducted by us, namely confidential reviews of proposed mergers and public reviews of mergers and proposed mergers. Some mergers will be considered initially on a confidential basis and then subsequently on a non-confidential basis once the matter becomes public.

We will begin reviews of non-confidential merger proposals and completed mergers that we consider may raise competition issues, when we become aware of these either as a result of:

• the merger parties seeking informal clearance of a merger or proposed merger
• the merger parties advising the ACCC of a merger or proposed merger but not seeking informal clearance
• complaints
• information from other Australian and overseas regulators
• media reports or speculation, or
• other sources.

For most mergers considered by us, the merger parties will approach us before completing a merger either to obtain an informal clearance on the proposal or on a ‘for information/courtesy’ basis.

Although there is no compulsory pre-merger notification requirement in Australia, parties proposing to undertake a merger or acquisition are strongly encouraged to approach us when a merger is contemplated and certainly before a merger is completed, particularly if the merger or acquisition could affect competition. The sooner parties approach us to discuss a proposed merger, the sooner we will be able to provide our view. These discussions may be held either when the merger proposal is confidential and/or after the merger proposal becomes public.

How to apply for informal merger review

There is no application form or fee payable for merger parties requesting an informal merger clearance. Merger parties requesting informal clearance should approach the Mergers and Acquisitions Group to discuss a proposed acquisition and provide a submission outlining the nature and extent of the proposed acquisition, consistent with the information requirements outlined in the Merger review process guidelines 2006.

The Merger review process guidelines 2006 will assist merger parties on how to apply for informal merger clearance and to understand the processes that will be applied by the ACCC when conducting an informal merger review.

Consulting with the ACCC before a submission is lodged

Merger parties and prospective merger parties are encouraged to contact the ACCC when a merger is contemplated and certainly before a merger is completed, particularly if the merger or acquisition could affect competition. To assist merger parties, the ACCC has established a specific communication policy for dealing with merger parties prior to, and throughout, merger reviews which is outlined in chapter 4 of the Merger review process guidelines 2006.

If you would like to meet with staff to discuss a merger proposal, please contact the Mergers and Acquisitions Group at mergers@accc.gov.au.

Information requirements

There are no prescribed information requirements imposed on merger parties when seeking an informal merger review from the ACCC, nor is there any application fee. However, merger parties are encouraged to provide written submissions outlining:

• background information about the parties
• the structure of the market, including any relevant information about other major market participants
• the commercial rationale for the merger
• an analysis of the proposed acquisition in terms of the merger factors set out in s. 50(3) of the Act, and
• an analysis of any other relevant factors relating to the competitive implications of the merger.

A non-exhaustive list of the factors to be taken into account by us is clearly expressed in s. 50(3) of the Act and the ACCC's analytical approach to those factors is discussed in detail in the Merger guidelines 2008. All information relevant to assessing the impact of a proposed acquisition in terms of these merger factors is considered important to the ACCC.

An outline of the information that the ACCC would ordinarily require to conduct its competition assessment is included in the publication, Merger review process guidelines 2006. This is not a list of mandatory information requirements and is intended only as a guide. It is understood that not all issues or information will be relevant to every proposed merger and therefore submissions should be tailored accordingly. When clarification of any of the issues is needed, merger parties should refer to the Merger guidelines 2008, which address in more detail each of the merger factors, or speak with a member of the Mergers and Acquisitions Group.