Australia: Making the merger control process clearer

France and Australia move to improve their processes for competition scrutiny of mergers and acquisitions

The past few months have seen moves by the competition authorities in two significant jurisdictions, France and Australia, to clarify their national merger control procedures – that is, the processes under which their national competition authorities scrutinise mergers and acquisitions to see whether they have anti-competitive effects.

In July 2013, France's Competition Authority published new "Guidelines of Merger Control"44, while in Australia the ACCC (Australian Competition and Consumer Commission) released draft Merger Review Process Guidelines for public comment45.

A common feature of both guidelines – addressing an issue that is encountered in merger control processes across the world – is the possibility for pre-notification (or pre-filing) engagement between the parties and competition authorities to enable both sides to identify, and if possible address, any competition concerns. Pre-notification contacts have two main advantages:

  • They open the possibility for any substantive competition difficulties to be dealt with before the parties publicly announce the transaction, so sparing the parties possible public embarrassment.
  • They make it easier for transactions to be dealt with by the competition authorities within the prescribed timescales, and, as a result, could help avoid the need for a full "Phase 2" investigation lasting several months.

However, there are also potential disadvantages. The increasing use of pre-notification discussions – not only in France and Australia, but elsewhere – has the effect that the timetable for competition clearance is, in practice, substantially prolonged, and this must be factored in to transaction timetables and planning. Moreover, because pre-notification is an "informal" procedure, and therefore not normally subject to statutory time limits, its increased use introduces a greater element of uncertainty into the planning and timetabling of M&A processes. That said, experienced advisers will normally be able to give parties guidance on the typical length of pre-notification processes in a particular jurisdiction.


Under the French competition regime, it is obligatory to notify M&A transactions to the French Competition Authority, and to obtain the Authority's clearance prior to completing (closing) the transaction, if (a) the parties to the transaction meet the turnover thresholds set out under French competition law and (b) the transaction is not notifiable under the EU Merger Regulation (i.e., normally, because the parties do not meet the (higher) turnover thresholds set out in the EU Merger Regulation). Where a transaction is notifiable to the French Competition Authority, there is a "Phase 1" initial assessment lasting up to 60 working days and, if there are concerns about the transaction's effect on competition in French markets which cannot be resolved by negotiated remedies, there is then a "Phase 2" full investigation lasting a maximum 130 working days.

The main new features introduced by France's July 2013 Guidelines on Merger Control are:

  • Greater emphasis on the informal "pre-notification" phase (i.e. before the formal "Phase 1" process is triggered). According to the French Competition Authority, this will enable the parties to discuss with the Competition Authority, prior to notification,
  • "any potential problems related to the eligibility criteria of the review of the operation or to particularities of the companies or markets involved, even going as far as to anticipate any possible competition problems".
  • A simplified examination procedure, enabling transactions that are not likely to raise competition problems to obtain a simplified merger clearance decision within 15 working days after notification (i.e. just one-quarter of the time for "standard" Phase 1 clearance). The simplified examination procedure has been used for two years, but the new Guidelines specify the criteria under which a transaction will be eligible.
  • Clarification about market definition analysis: The Guidelines, drawing on experience from recent cases, clarify the approach that the French Competition Authority takes on:
    • how relevant markets are defined; and
    • the use made of market definition in the competition analysis.
  • Disposal remedies: Where the French Competition Authority requires an acquirer to dispose of part of its business, as part of a negotiated remedy for conditional clearance – whether at the end of Phase 1 or of Phase 2 – an independent trustee is normally appointed to supervise the obligatory disposal. The new Guidelines offer two standard models for the disposal of assets and the mandate for the trustee in this situation.


By contrast with France, Australia's competition law does not make it obligatory to notify M&A transactions meeting the country's merger control thresholds. Instead (and similarly to the position in the UK) there is a voluntary notification procedure; if the transaction has significant anti-competitive effects, there is a risk in non-notification in that it is open to the ACCC to investigate the transaction of its own accord and, if the ACCC considers the transaction problematic, ultimately to prohibit the transaction (or, if the transaction has been completed, to order the merged business to be broken up). In practice, the ACCC expects merger parties to notify it where they supply competing or complementary goods or services in Australia and their post-merger market share in Australia exceeds 20 per cent in respect of any of those products or services.

The main new features of the Draft Merger Review Process Guidelines published by the ACCC in July 2013 are:

  • "Pre-assessment": This allows the parties to gain valuable insight into any initial competition concerns, and the likely timeframe for informal clearance of a proposed transaction. The initial response from the ACCC is generally fairly quick – often within two weeks of the parties' approach.
  • There are two classes of outcome of pre-assessment:
    1. "Informal clearance": The ACCC might, at the pre-assessment phase, grant "informal clearance" of a transaction, although this is not assured. Informal clearance will generally only be granted at the pre-assessment phase where the ACCC takes the view that there is a "low risk" that the transaction will result in a substantial lessening of competition, and the ACCC is familiar with the industry and there is evidence to support the contentions made by the parties. There is no guarantee of confidentiality in the informal clearance process.
    2. "Confidential review": Where the transaction is highly confidential, and the parties are aware that there might be difficulties in obtaining clearance, it is open to them to approach the ACCC for a confidential review of a proposed transaction, allowing for an assessment of clearance risk without the need for the matter to be made public. The outcome of the confidential review process will only ever be a qualified view from the ACCC.
  • New post-notification time limits: The formal merger clearance process is, as is common worldwide, in two phases; the assessment goes into a Phase 2 if there are significant and/or complex competition issues. The ACCC has redefined the timetable and the steps within each phase, indicating that a six to 12 week assessment timetable will be applied to Phase 1, and a further six to 12 weeks to Phase 2.

Related Articles


44French Autorité de la Concurrence, Lignes Directices de l'Autorité de la concurrence relatives au contrôle des Concentrations, July 10, 2013.
45Australian Competition and Consumer Commission press release, "ACCC seeks comments on updated merger process guidelines", July 1, 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions