The ACCC has released findings from reviews of three past merger decisions by the ACCC that were completed in 2019 in a report released today.
Reviews of past merger decisions (often referred to as ‘ex post’ merger reviews) are undertaken by competition authorities around the world to inform and improve processes and decision making.
The mergers examined in the report include ANZ Terminals acquisition of GrainCorp Liquid Terminals, AP Eagers Limited’s acquisition of Automotive Holdings Group, and Bauer Media’s acquisition of Pacific Magazines.
“Reflecting on how a merger or acquisition actually impacted markets is an important part of ensuring the ACCC’s decision making process is robust and effective,” ACCC Chair Gina Cass-Gottlieb said.
The mergers reviewed were not opposed by the ACCC at the time. This means that with the information and evidence before it, the ACCC did not consider the proposed mergers would be likely to substantially lessen competition in any market.
In the case of two of the mergers, this decision was made taking into account remedy undertakings offered by the parties to address competition concerns.
“As with our previous ex post reviews, we found that some of the predictions and assumptions made by the ACCC in the original review did not unfold as anticipated,” Ms Cass-Gottlieb said.
“In particular, this report re-enforced the risks raised when clearance decisions rely on new entry and expansion, and also the inherent complexities associated with negotiating and implementing some undertakings.”
“For example, concerns were identified regarding the effectiveness of an undertaking accepted in one of the matters, notwithstanding that the parties appear to have complied with the obligations. These findings are important and are likely to influence our approach in future matters,” Ms Cass-Gottlieb said.
The ACCC’s ex-post reviews currently rely on the voluntary production of information and data by relevant stakeholders. This can affect the amount, quality and relevance of data that we have available for our ex post reviews.
Compulsory information gathering powers, which the ACCC is advocating for, would expand the ACCC’s capacity to undertake analysis of data and gain greater insights into shifts in the market.
The ACCC will continue its practice of reviewing other past merger decisions.
The report can be found on the ACCC’s website here: Ex post review of ACCC merger decisions
Background
Reviews of past merger decisions are often referred to as ‘ex post’ merger reviews.
The ACCC selected these three matters according to a range of criteria, including the availability of information and data, the time elapsed since the merger, the unique issues raised, and the potential relevance to future ACCC investigations.
On 26 March 2020, the ACCC announced it would not oppose Bauer Media’s acquisition of Pacific Magazines.
On 15 November 2019, the ACCC announced it would not oppose ANZ Terminal’s acquisition of GrainCorp Bulk Liquid Terminals, subject to divestitures.
On July 2019, the ACCC conditionally authorised AP Eagers’ proposed acquisition of Automotive Holdings Group (AHG), following an undertaking from AP Eagers to sell its existing new car dealerships in the Newcastle and Hunter Valley region to a third party.