How to apply for formal clearance

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

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

Section 95AE establishes that, to be valid, a clearance application must:

• be in a form prescribed by the regulations and contain the information required by the form
• be accompanied by such other information or documents as are prescribed by the regulations
• be accompanied by the fee (if any) prescribed by the regulations.

The regulations require that the applicant give an undertaking under s. 87B that the applicant will not make the acquisition while the application is being considered by us.

The form

Applications for clearance must be made to us by completing Form O Application for merger clearance (contained in the Competition and Consumer Regulations 2010)—see attached Form O below. When completing the form, applicants must have regard to the questions contained in the form and the notices and directions to the form.

The questions contained in the form largely relate to the merger factors in s. 50(3) of the Act and require detailed responses from the applicant including evidence in support of any contentions made in the application or any accompanying submissions. Further information on each of the merger factors and the ACCC’s consideration of them is available in the Merger guidelines 2008, which prospective applicants are encouraged to consult when completing an application for clearance.

Applicants should also submit any additional information which will be relevant and necessary for the ACCC to obtain a complete and accurate picture of the operations of the acquirer and target, the relevant markets and the competitive environment.

The ACCC requires that applicants provide electronic versions of the application and any other documents. All information and documents should be scanned at a resolution of 300 DPI and in searchable PDF format, and be placed on compact disc or equivalent media. In addition, unbound hard copies should also be provided.

The electronic application and all associated information and documents, including all hard copies, and the associated fee (payable by cheque made out to the Australian Competition and Consumer Commission) may be lodged at any ACCC office or sent to the following address:

Executive General Manager
Mergers and Acquisitions Group
Australian Competition and Consumer Commission
GPO Box 3131
Canberra ACT 2601

Applications for clearance and all associated information and documents can also be emailed to mergers@accc.gov.au (with hard copies sent to the above address). Applicants should note, however, that the date on which the valid application is considered to be received will be the date on which a complete electronic application, meeting all of the requirements of validity, is received by the ACCC.

The fee

The application must be accompanied by the relevant fee as specified in the Competition and Consumer Regulations 2010. The fee is currently set at $25 000.

For more detailed information regarding clearance applications, refer to chapter 3 of the ACCC's Formal merger review process guidelines 2008.