Mergers Down Under

Abstract

Mergers Down Under focuses on the history and scope of the competition law merger provisions in Australia, which have been well established since 1974. Section 50 of the Competition and Consumer Act 2010 (CCA), prohibits mergers and acquisitions which have the effect or likely effect of substantially lessening competition in a market (SLC Test). Australia does not have mandatory filing for mergers. Instead, a practice has grown up outside the scope of the CCA which involves parties approaching the competition regulator, the Australian Competition and Consumer Commission (ACCC), seeking informal clearance. If the ACCC objects, and the parties persist with the merger, the ACCC will seek an injunction in court to prevent the transaction. Around 90% of mergers are dealt with informally, but the ACCC has had little success in court since the introduction of the current test in 1992. Difficulties have involved standards of proof and reception of expert economic evidence in court. Alongside global discussions around the impact of digital platforms on standard competition law tools, the failure of the ACCC to prove cases in relation to mergers has led to proposals for amendment of the Australian law.