The ACCC notes the Australian Competition Tribunal’s decision today to grant authorisation for ANZ’s proposed acquisition of Suncorp’s banking business.
The Tribunal’s decision sets aside the ACCC’s earlier decision not to grant authorisation for the proposed acquisition. The Tribunal is the review body for authorisation decisions made by the ACCC.
On 4 August 2023 the ACCC said it would not authorise the proposed acquisition , because it was not satisfied the transaction would not result in a substantial lessening of competition in the supply of home loans nationally, small to medium enterprise banking in Queensland, and agribusiness banking in Queensland, and that the claimed public benefits did not outweigh the likely public detriment.
The ACCC was concerned that the proposed acquisition of Suncorp Bank by ANZ would further entrench an oligopoly market structure that is dominated by the four major banks.
Based on its review of the material before the ACCC, and some limited new information, the Tribunal has concluded that it is satisfied that the transaction would not result in a substantial lessening of competition in any relevant market.
The Tribunal found many of the public benefits claimed by ANZ and Suncorp were either not public benefits or were not specific to the proposed acquisition. However, the Tribunal found that any detriments from the acquisition were uncertain and unlikely to outweigh the integration benefits.
“The ACCC notes the decision and will reflect on it. The Tribunal’s decision demonstrates the checks and balances of an administrative merger approval process.” ACCC Chair Cass-Gottlieb said.
“The Tribunal made findings on fundamental matters that informed our concerns, including that the national market for home loans is currently conducive to coordination and that material barriers to entry and expansion remain. However, the Tribunal didn’t consider that the proposed acquisition would meaningfully impact on the likelihood of coordination.”
“Banking markets are critical for many homeowners, businesses and farmers. The ACCC will continue to apply scrutiny to these markets across the breadth of our functions including merger assessments and enforcement investigations," Ms Cass-Gottlieb said.
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.
The Full Federal Court of Australia can hear appeals from the Australian Competition Tribunal in limited circumstances.