ACCC Pushes for Merger Control Rule Amendments in Australia

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The Australian Competition and Consumer Commission (ACCC) has long been advocating for changes to the merger control rules in Australia. Currently, the regime is voluntary, and the ACCC cannot prohibit a transaction independently; it must seek court approval.

ACCC chair Gina Cass-Gottlieb, who assumed office last year, has been vocal about the flaws in the current system. She points out that filings in jurisdictions with mandatory merger control rules often take precedence over those in Australia, which hampers the ACCC’s ability to evaluate deals and prevent potentially anti-competitive mergers.

“Australia’s current voluntary merger regime is not fit for purpose, citing that merger parties are pushing the boundaries of the informal regime” by providing late, incomplete or incorrect information for review and increasingly engaging or threatening to engage in gun-jumping,” Ms Cass-Gottlieb said.

While acknowledging that the new ideas still represent a substantial change, McDonald believes that the ACCC deserves recognition for scaling back on the earlier, more contentious suggestions.

In a significant development, Cass-Gottlieb recently delivered a crucial speech outlining the ACCC’s case for reforming the merger control rules. Notably, the proposed reforms will eliminate several controversial provisions previously suggested by her predecessor in 2021.

The proposed reforms would also set out explicit factors to consider when reviewing a transaction, such as the loss of actual or potential competitive rivalry and the impact on access to or control of data, technology, or other significant assets. 

According to Peter McDonald, a competition partner at Allen & Overy, the recent ideas put forth by the ACCC for reforming Australia’s merger processes are a significant improvement compared to the proposals made in 2021.

“It is substantially better, and I give the ACCC credit for listening and not just sticking to its guns and saying we’ve made our predetermined position right. They have made material changes.” McDonald said.

The ACCC’s proposed reforms demonstrate its determination to address the shortcomings in Australia’s merger control rules.

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