- Merger authorisation is a formal process.
- When the ACCC grants a merger authorisation, businesses can go ahead with their merger or acquisition without the risk of legal action to stop the proposal because of competition concerns.
What the ACCC does
- We assess applications for merger authorisation.
- We publish written reasons for our decision.
- We keep a register of merger authorisations applications and decisions.
What the ACCC can't do
- We can’t give legal advice or recommend that an authorisation is necessary.
- We can’t consider authorisation applications for mergers that are already completed.
Merger authorisation is a formal process
Merger parties can apply to the ACCC for merger authorisation.
Merger authorisation recognises that some mergers may give rise to public benefits that outweigh public harm.
Merger authorisation is a formal process under the Competition and Consumer Act 2010. It provides an alternative to the informal merger review process.
See Merger authorisation guidelines for information on the process and the analytical framework we follow to review applications.
Merger authorisation provides legal protection
Merger authorisation helps businesses to manage the competition law risk that can arise when merging or acquiring another business.
If authorisation is granted, it prevents the ACCC or third parties from taking legal action for a breach of section 50 of the Competition and Consumer Act 2010 while the authorisation is in place.
The ACCC uses a test for granting authorisation
The ACCC may grant a merger authorisation only when it is satisfied that either:
- the proposed acquisition is not likely to substantially lessen competition, or
- the likely public benefit from the proposed acquisition outweighs the likely resulting public detriment.
Authorisation cannot be granted if the merger or acquisition has already been completed.
Merger authorisation is a public process
The merger authorisation process is public.
The application for authorisation, all related submissions by the applicant and interested parties, and the ACCC’s determination, are placed on the merger authorisations register.
The merger parties and interested parties can request that the documents or submissions, or parts of them, be excluded from the public register because they are confidential. A claim for exclusion must be supported by reasons.
The public version of the authorisation application must contain enough information to allow for consultation on the proposed merger.
We encourage merger parties to contact the ACCC as early as possible when a merger is being contemplated and it potentially raises competition issues.
- discuss possible competition issues
- talk about options for the ACCC’s review
- answer questions about lodging an application for merger authorisation.
This may be done on a confidential basis.
Contact us by:
- phone on (02) 6243 1368, or
- email email@example.com.
The steps in the merger authorisation process include:
1. Pre-lodgement discussions with the ACCC
We encourage merger parties to contact us to discuss their proposal before lodging an application for merger authorisation.
Merger parties are encouraged to provide us with a draft of their application before the discussion.
During the pre-lodgement discussions, we may outline the information and evidence we will likely require to assess the application. We may indicate whether an extension to the 90 day timetable may be appropriate.
The draft application and the pre-lodgement discussion are confidential and are not placed on the public register.
2. Lodging the application
A valid application for merger authorisation involves:
- a public version of the application containing information required in the form and enough information to allow public consultation
- a signed declaration by the applicant that the application is true, correct and complete
- a signed section 87B undertaking not to proceed with the proposed acquisition while the ACCC is considering the application
- payment of the lodgement fee of $25,000.
Merger parties need to provide all relevant information and evidence in their application and when requested during the review. Submissions and statements supported with evidence will be given greater weight.
See Apply for merger authorisation for the application form and more information.
3. Review process
Once we receive a valid application, we start the review process.
- publish the application on the mergers authorisations public register
- invite submissions on the application from interested parties
- conduct our own market inquiries and research
- engage with the applicant through the process. This includes seeking further information and evidence when needed, providing written feedback following market inquiries, and inviting a response to the issues raised in submissions by interested parties.
While we are not required to publish a draft decision in the merger authorisation process, we do engage with the applicant through the process and before making our final decision.
4. Final decision
In the final decision, we can either:
- grant authorisation
- grant authorisation subject to conditions or undertakings under section 87B
- deny authorisation.
Unless extended, we must make a final decision within 90 days of a valid application being lodged. If we don’t make a final decision within 90 days, the ACCC is taken to have refused to grant authorisation.
The 90-day period can be extended if the applicant agrees in writing before the period expires.
Our ability to make a decision within 90 days depends on the:
- information and evidence provided in the application
- complexity of the issues raised.
We publish written reasons for our decision to either grant, grant subject to conditions or undertakings, or deny merger authorisation.
Application form and fee
A valid application for merger authorisation must be in the form approved by the ACCC and include payment of the relevant lodgement fee.
We prefer that applications are lodged by email at firstname.lastname@example.org. Applications can also be lodged by mail or in person at an ACCC office.
We prefer lodgement fees are paid by electronic funds transfer (EFT).
Account name: ACCC Administered receipts account
Bank: Westpac Banking Corporation
Account number: 146550
Payment narrative: <name of company> <form name, for example Application for Merger Authorisation>
Payment can also be made by:
- credit card (Visa and Mastercard only) online at ACCC payments
- cheque made out to the Australian Competition and Consumer Commission.