What you need to know

The Australian Competition Tribunal has given competition approval for the $11bn merger of Tabcorp and Tatts. The decision reinforces that:

  • Merger authorisation can be an effective and timely way to secure competition clearance for acquisitions where they have clear public benefits:
    • This is the third successful merger authorisation since the process for direct application to the Tribunal was introduced.
    • This is important because the Australian Competition and Consumer Commission (ACCC) informal merger clearance process only takes into account one side of the coin (i.e. anticompetitive detriments).
  • Merger parties interested in the authorisation process should prepare well in advance to maximize their chance of success and may benefit from ensuring they have key interested stakeholders on side from an early stage.
  • This decision indicates that the Tribunal may have a greater willingness (relative to the ACCC) to take a longer term view of market outcomes when assessing anticompetitive detriments. This is especially so if dominant players can show they are ailing, flailing or under effective attack by new entrants and/or changed market circumstances.

Although the Tribunal was the first instance decision maker in this case, under proposed changes to the Competition and Consumer Act 2010 (Cth) (CCA) recommended by the Harper Review, the ACCC will become the first instance decision maker in merger authorisations in the future and empowered to authorise mergers on the basis that they either will not substantially lessen competition or will result in net public benefits. Parties will have a right of appeal to the Tribunal for a full merits review. These changes (discussed further below) are expected to come into effect in mid-2018.

Background

On 13 March 2017, Tabcorp lodged an application with the Australian Competition Tribunal seeking approval for its merger with Tatts on the grounds that the proposed acquisition would result in substantial benefits to the public. Its application was supported by more than 30 witness statements, including 4 expert reports. It included evidence from several racing industry bodies which were supportive of the proposed merger or did not actively oppose it.

Prior to Tabcorp’s application to the Tribunal, Tabcorp applied to the ACCC for informal merger clearance. The ACCC conducted a review of the proposed acquisition to determine whether it was likely to substantially lessen competition in a market. The ACCC published a Statement of Issues on 9 March 2017 expressing a preliminary view that several issues raised competition concerns. Tabcorp’s application to the Tribunal four days later had the effect of bringing the informal clearance process to an end.

In support of Tabcorp’s application, Tatts sought and was granted leave to intervene in the proceeding. In addition, CrownBet, Racing Victoria and Racing.com were granted leave to intervene. In total, more than 70 witnesses and interested parties made statements in these proceedings. The Tribunal heard evidence and submissions for three weeks from barristers for the parties.

Australian Competition Tribunal decision

In a decision raising complex issues in a number of markets, the Tribunal ultimately was satisfied that the proposed merger is likely to result in substantial benefits to the public and that anticompetitive detriments identified by the ACCC and the interveners were unlikely to either arise or be of significance.

The Tribunal found that the merger would result in substantial public benefits in the form of cost synergies/savings and revenue benefits associated with improved efficiencies. Without deciding if it was the case, the Tribunal noted that it may be appropriate to weigh some part of the revenue increases more highly if they flow to industry than if they were retained by shareholders of the merged entity.

The Tribunal found that there would be no substantial lessening of competition in any market:

  1. The Tribunal adopted a broad definition of a single national market for consumer wagering – which included a wide array of wagering products – and as such was satisfied there would be no substantial lessening of competition in this market. Central to the finding was the Tribunal’s observation that business models of the merger parties was under substantial pressure, while the merger parties’ corporate bookmaker rivals benefited from the combination of global scale, a lower cost base, and heavy investment in marketing and promotion.
  2. In the market for wagering licenses, the Tribunal was not satisfied that Tatts’ removal would lead to a significant lessening of competition in future bidding processes. Central to this finding was the Tribunal’s observation that the wagering industry is in a state of “immense change” and that there would be major structural change in the licencing process in the future. (Its findings were based primarily on an analysis of the 2024 Victorian licence bidding process, being the next one to take place). It also found that whatever the retail licences are worth, they will be of at least equivalent interest to corporate bookmakers.
  3. In the markets for the acquisition of racing media rights and the delivery of racing media services – the Tribunal took the view that the merger materially changes nothing in respect of the media landscape (in which Tabcorp/Sky already has a dominant position), other than putting Tabcorp in a weaker bargaining position vis-à-vis the racing bodies from whom it acquires media rights. This quite extraordinary finding – ie that a (larger) merged entity will be in a weaker position – was based on a view that Tabcorp will have an increased dependence on obtaining media rights post-merger. The Tribunal’s position in racing media markets was significantly predicated on a finding that Racing.com would have an ongoing presence facilitating competition in these markets into the future.
  4. In the provision of lotteries and Keno, the Tribunal was satisfied that no competition concerns arise from the merger because either the parties are not competitors or there is no material overlap in the products supplied by the merger parties.

For completeness, no competition concerns arose in the gaming services industry as Tabcorp applied for formal authorisation offering, as a condition of authorisation, an undertaking pursuant to s 87B of the CCA to divest its Odyssey business, which dealt with any competition concerns in the relevant markets.

Overall, the decision indicates that the Tribunal had a greater readiness (relative to the ACCC) to take a longer term view of market outcomes when assessing anticompetitive detriments. In the decision, the merger parties’ evidence that they were ailing, flailing or under effective attack by new entrants and/or changed market circumstances appeared to be decisive in the Tribunal reaching its view that there would be no anticompetitive detriments in any market.

The decision continues the trend of the Tribunal/Courts taking an opposing view to the ACCC in forecasting potential anti-competitive detriments of a proposed merger. In each of the three Tribunal determinations since the process for direct application to the Tribunal was introduced in 2007, the Tribunal has been satisfied that there would be no substantial lessening of competition in any market despite the ACCC either announcing that it was opposing the deal due to competition concerns or expressing a view that there may be or may be likely to be competition concerns. This is consistent with earlier judicial decisions such as the Tribunal’s decision to overturn the ACCC’s refusal to grant Qantas and Air New Zealand authorisation in respect of Trans-Tasman agreements1 and the Full Federal Court’s Metcash decision, which overturned the ACCC’s findings that Metcash’s proposed acquisition of Franklins would substantially lessen competition.2

Proposed changes to the law

Under proposed changes to the Competition and Consumer Act 2010 (Cth) (CCA) recommended by the Harper Review, the ACCC will be the first instance decision maker in merger authorisations in the future. Currently, parties wishing to have a merger reviewed have three options: the ACCC’s informal merger clearance process (which is non-statutory process based on a substantial lessening of competition (SLC) test and used in the vast majority of merger clearances), the formal merger clearance process (which is also based on an SLC test and has never been used) or merger authorisation by the Australian Competition Tribunal with a public benefit test.

From mid-2018, if the Government’s Competition and Consumer Amendment (Competition Policy Review) Bill 2017 becomes law, the ACCC will be the decision maker at first instance under a single formal process (combining the latter two options above) and empowered to authorise a merger on the basis of an SLC test or a net public benefits test. The ACCC’s decision will be subject to full merits review by the Tribunal.

Implications

If you have a proposed merger with public benefits:

  • You should consider using the authorisation process to get your deal through.
  • You should prepare well in advance to have the best chance of success and ensure key stakeholders are on side from the outset.
  • As has been done in previous cases – it may be beneficial to first seek ACCC informal merger clearance – it can assist in fleshing out competition concerns, which you can then address directly in the authorisation process while building your public benefits case.

If you want to challenge a merger:

  • Once the authorisation process commences, you should prepare as fast as you can to explain why anticompetitive detriments outweigh benefits.
  • If the merger parties are going through the informal merger clearance process, you should now consider from an early stage the implications for your strategy if the parties change tack and opt for the formal clearance process (either through the Tribunal or via the ACCC from mid-2018).