On 20 February 2024, the Australian Competition Tribunal set aside the ACCC’s earlier decision on 4 August 2023 not to grant authorisation for ANZ to acquire Suncorp’s banking business. The Tribunal has now released the full reasons for its decision.
The ACCC does not propose to seek review of the Tribunal’s decision to grant authorisation for ANZ’s proposed acquisition of Suncorp’s banking business.
“While the ACCC reached a different conclusion to the Tribunal, in complex cases that require the assessment of significant volumes of information and data, different decision makers can reasonably arrive at different conclusions. The availability of review of the ACCC’s merger authorisation decisions is an important check and balance for this administrative decision-making process,” ACCC Chair Cass-Gottlieb said.
“The ACCC’s role in the review process is to assist the Tribunal. In reaching its decision, the Tribunal largely adopted the ACCC’s legal and economic framework for assessing the merger and its impacts, although ultimately formed a different view about the significance of the proposed acquisition on competition.”
“The Tribunal also shared the ACCC’s fundamental concerns that the national home loans market has features which make it currently conducive to coordination. The Tribunal also found that many of the public benefits claimed by ANZ and Suncorp were either not public benefits or were not specific to the proposed acquisition,” Ms Cass-Gottlieb said.
“Banking markets are critical for consumers and businesses. The major banks have, for many decades now, been the same four banks with dominant market shares. For these reasons, the ACCC will continue to closely scrutinise these markets.”
Background
On 2 December 2022, the ACCC received an application for merger authorisation from ANZ in relation to its proposal to acquire Suncorp Bank.
During the period of its review the ACCC gathered and tested a substantial body of evidence including approximately 200,000 documents, analysis of relevant banking data and conducted 10 compulsory interviews with bank executives. That evidence was brought before the Tribunal. The Tribunal commented that it had a very substantial quantity of information, documents and evidence placed before it.
The ACCC issued a statement of preliminary views on 4 April 2023.
On 4 August 2023, the ACCC denied authorisation for ANZ to acquire Suncorp Bank.
On 25 August 2023, ANZ and Suncorp applied to The Australian Competition Tribunal for review of the ACCC's determination under section 101 of the Competition and Consumer Act.
In such a review, the Tribunal may affirm, vary or set aside the ACCC’s determination. The role of the ACCC in this review was to assist the Tribunal.
The Tribunal is a review body. A review by the Tribunal is a re-consideration of a matter.
The Tribunal has jurisdiction under the Competition and Consumer Act to hear a variety of applications, including reviews of determinations of the ACCC granting or refusing authorisation for company mergers and acquisitions.
In conducting its review, the Tribunal applies the same ‘authorisation test’ as the ACCC and is generally limited to the information which was before the ACCC.
Under the Competition and Consumer Act, the Tribunal must not grant authorisation unless it is satisfied, in all the circumstances, that either (1) the conduct would not have the effect or be likely to have the effect of substantially lessening competition; or (2) the conduct would result or be likely to result in a benefit to the public, and the benefit would outweigh the detriment to the public that would result or be likely to result.
Authorisation provides statutory protection from court action for conduct that might otherwise be in breach of the competition provisions of the Competition and Consumer Act, including section 50 which prohibits acquisitions which are likely to substantially lessen competition.