Answer ... Notification is voluntary.
Parties may seek an informal merger review of a proposed merger or acquisition from the Australian Competition & Consumer Commission (ACCC), which occurs outside of the formal provisions of the Competition and Consumer Act (CCA). As the informal merger review process is outside the formal provisions of the CCA, it is not binding, although it does provide merger parties with comfort regarding the ACCC’s position. The ACCC will typically reconsider a transaction only where new information comes to light or where information provided for the purposes of the informal process is inaccurate or incomplete.
Merger parties may also seek legal protection from court action under Section 50 by applying to the ACCC for merger authorisation. Pursuant to Section 90(7), the ACCC may grant merger authorisation if it is satisfied that either:
the proposed merger or acquisition would not or would not be likely to substantially lessen competition; or
- the likely public benefit from the proposed merger or acquisition outweighs the likely public detriment.
Answer ... There is an opportunity to discuss mergers and acquisitions with the ACCC on a confidential basis under the informal merger review process where there is a real likelihood that the merger may proceed – that is, before formal documents are signed. Under the merger authorisation process, the ACCC encourages parties to speak with it before an application is lodged. This can be done on a confidential basis prior to formal documents being signed.
Answer ... Notification is voluntary, meaning that neither party is responsible for filing a notification. As the potential acquirer will generally be liable for the contravention of Section 50 (although it is theoretically possible for the vendor to be an accessory, the ACCC has not in the past prosecuted vendors), it is typically the acquirer that will initiate the informal merger review process or the formal merger authorisation process.
Answer ... There are no fees for an informal merger review. There is a filing fee of A$25,000 for a formal merger authorisation.
Answer ... For an informal merger review, the ACCC requires the following information initially, but may require further information throughout the process:
- details of the parties to the transaction;
- details of the proposed transaction, including what shares and/or assets are to be acquired and whether the transaction is confidential;
- details of the Australian business operations of the acquirer and the target;
- for markets where the acquirer and target currently supply goods or services or where the acquirer and target have a customer/supplier relationship, details of market shares and other information; and
- if the ACCC considers that a public review is required, a list of key customer and supplier names and contact details.
For a formal merger authorisation, the ACCC encourages applicants to approach it prior to lodgement to discuss the information to be provided. The following information is necessary, at a minimum:
- details of the parties to the transaction;
- details of the proposed acquisition, including the assets and/or shares to be acquired and the proposed structure of the acquisition (including ancillary arrangements);
- copies of the transaction documents (either as signed or latest drafts);
- market information, including descriptions of products and/or services and distribution areas and a description of industries affected by the transaction;
- information on the impact of the transaction on competition;
- a description of the public benefits and detriments of the transaction;
- the contact details of actual or potential competitors, key customers and suppliers and trade associations that any of those parties is a member of; and
- any other information that the applicant considers relevant.
Answer ... There is no deadline for seeking an informal review. The ACCC states that where substantive competition issues do not arise, most informal merger reviews will be completed within two to three months. The ACCC encourages parties to approach it at an early stage; if insufficient time is provided to allow the ACC to conduct its informal process, it may seek to use its formal information-gathering powers and/or injunctive relief to enable it to properly consider the proposed transaction.
The ACCC is required under the CCA to make a determination on a merger authorisation application within 90 days of receiving a valid application, subject to any extension agreed by the applicant. If a determination is not made in that period, the application is deemed to be refused. Once the application has been made, given this timing constraint, there is limited ability to amend it. As the transaction cannot proceed while the application is being considered, the application should be submitted well in advance of the proposed completion date.
Answer ... The ACCC is willing to discuss mergers and acquisitions on a confidential basis under the informal review process where there is a real likelihood that the merger may proceed – that is, before formal documents are signed. The transaction must be more than speculative, so the ACCC should be approached only if there is a good-faith intention to proceed.
The formal merger authorisation process may commence before definitive agreements are signed. However, given the difficulties of making amendments following lodgement of the application, it will typically be the case that an application is not lodged prior to signing of a definitive agreement.
Answer ... Under the informal merger review process, which is outside the CCA legislative framework, there is no requirement to delay closing. However, the ACCC typically will not consider transactions that have been completed under the informal merger review process. Instead, if it determines to review a completed transaction, this will typically be treated by the ACCC as an investigation of a potential breach of Section 50 of the CCA.
The applicant for a formal merger review must provide a formal undertaking not to complete the transaction before the merger review has been completed.
Answer ... The informal merger review process may occur in one of three ways:
- Pre-assessment: The ACCC may take the view that the risk of a substantial lessening of competition from the transaction is low and therefore that it will not undertake either a confidential assessment or a public review. In that case, no public announcement is made by the ACCC of the pre-assessment.
- Conditional confidential assessment: Details of confidential merger reviews (and the ACCC’s assessment) are not made public. However, the ACCC reserves the right to undertake a public review of the transaction when details of the transaction are made public.
- Public review: If a public process is undertaken, it will be announced publicly by the ACCC. Both the fact that a public review is being undertaken and related information in relation to the proposed transaction will be published on the ACCC’s website. The ACCC, however, does not publish the acquirer’s submission itself.
The process for a formal merger review is public. The application for merger authorisation, all submissions made and the ACCC’s determination will be made public by being published in the ACCC’s merger authorisation public register. It is possible to make confidential submissions, though any claim for confidentiality will need to be substantiated.