ACCC issues draft guides to new merger clearance, collective bargaining notification and revised authorisation processes

15 November 2006

The Australian Competition and Consumer Commission has issued for public comment three draft publications concerning changes to processes which result from the recent amendments to the Trade Practices Act 1974, ACCC Chairman, Mr Graeme Samuel, said today.

The amendments follow recommendations of The Review of the Competition Provisions of the Trade Practices Act (the Dawson Review). The amendments will come into force on 1 January 2007.

The first publication is a guide to the formal merger clearance process (including the process for reviewing ACCC's clearance determinations) and the new merger authorisation process. Under the new merger clearance process, parties can apply to the ACCC for clearance in respect of proposed acquisitions of shares or assets.

If a clearance is granted by the ACCC, then s. 50 of the Act, which prohibits anti competitive acquisitions of shares or assets, does not prevent the acquisition in accordance with the clearance. ACCC determinations in relation to merger clearance applications can be reviewed by the Australian Competition Tribunal.

Under the new merger authorisation process, parties seeking authorisation of proposed acquisitions that might be anti-competitive but which can be conferred protection from application of s. 50 on public benefit grounds, must now make such applications directly to the Tribunal.

The Formal merger review process guidelines publication is designed to provide guidance to the business community, their advisers and the public generally. It outlines the approach that the ACCC proposes to take in assessing applications for formal clearance and the requirements on applicants for merger clearances. It also outlines the legislative requirements on parties wishing to apply to the Tribunal for authorisation of proposed mergers and acquisitions.

The second publication is a guide to the new collective bargaining notification process. Under this process, small businesses may obtain immunity from legal action to engage in collective bargaining conduct by lodging a notification under the Act.

The Guide to collective bargaining notifications is targeted mainly at small businesses seeking to collectively negotiate with another business. It aims to promote awareness of the new notification process for collective bargaining and help small businesses identify when it may be appropriate to lodge a collective bargaining notification. It also aims to help small businesses understand the process for lodging a collective bargaining notification and what information they will need to provide to the ACCC. The guide explains how the ACCC assesses collective bargaining notifications and to help applicants prepare an informed notice.

The third publication concerns changes to the authorisation process which has been amended to establish a six month time limit for the ACCC's consideration of non-merger authorisation applications. Additionally, the ACCC is now able to waive non-merger authorisation lodgement fees and new forms have been introduced for authorisations generally.

Authorisation – new processes from 2007 sets out the practical implications of these changes to the authorisation process for potential applicants for authorisation, parties affected by an authorisation application, and the ACCC. Importantly, under the amended authorisation process, applicants and interested parties must submit complete information within the deadlines established by the ACCC. The ACCC will not be able to accept substantial amendments to applications after they have been lodged.

The ACCC invites submissions on the draft publications. Submissions should be provided to the ACCC no later than 28 November 2006. Copies of the draft guides will be available by going to the 'Hot topics' link on the ACCC's website.

Release number: 
MR 269/06
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