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What for should merger control notification take in Australia and what content is required?
For informal merger clearance, there is no specific form which a notification should take. This will vary on a case-by-case basis. Typically, notifications take the form of a letter and an accompanying submission explaining the competitive impact of a merger (eg, why the proposed transaction would not result in a substantial lessening of competition).
The information contained in the submission will also vary on a case-by-case basis. The submission will typically address the relevant merger factors outlined in Section 50(3) of the Competition and Consumer Act 2010 (Cth), which include:
- the actual and potential level of import competition in the market;
- the height of barriers to entry;
- the level of concentration;
- the countervailing power;
- the likelihood that the acquirer will be able to significantly and sustainably increase prices or profit margins post-transaction;
- the likelihood of removal of a vigorous and effective competitor; and
- the nature and extent of vertical integration.
The Merger Guidelines 2008 outline the Australian Competition and Consumer Commission’s approach and application of the above factors.
The Informal Merger Review Process Guidelines 2013 outline additional information that the commission may require in an informal notification, including:
- information about the parties to the transaction;
- details of the proposed transaction; and
- details of the Australian business operations, interests and assets of the acquirer and target.
Specific forms exist for the application of formal merger clearance (Form O, Application for Merger Clearance) and merger authorisation (Form S, Application to Tribunal for Merger Authorisation).
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