The Australian Competition and Consumer Commission (ACCC) has revised the guidelines regarding its informal merger clearance process. The new guidelines do not represent a dramatic shift in approach but represent clear and practical guidance from the ACCC on current merger control procedure in Australia.
The ACCC has recently released the revised guidelines in respect of its informal merger clearance process (the Process Guidelines). This is the first substantive revision of the Guidelines since the original guidelines were released in 2006 (2006 Guidelines).
The informal merger clearance process in Australia has no legislative underpinning (as opposed to the formal merger clearance or authorisation processes which are also available to merger parties). Informal clearance is an administrative process and accordingly does not confer legal protection to a proposed merger. Despite this, informal clearance provides significant comfort to parties that their deal will not risk intervention by the ACCC and remains overwhelmingly the most popular route for merger clearance by parties with Australian mergers or acquisitions. As the process has developed, and given its importance and prevalence of use, somewhat more structured procedures have emerged, which are reflected in the Process Guidelines.
The Process Guidelines are a statement of process only. No change has been made to the substantive guidelines which set out the ACCC’s approach to assessing whether a merger substantially lessens competition. The 2008 Merger Guidelines and the 2006 Media Merger Guidelines describe the ACCC’s substantive approach. The ACCC has recently indicated that it has no current plans to review the substantive merger guidelines.
In reviewing the Merger Process Guidelines, the ACCC has consulted with interested parties and peak industry bodies. Some changes of note in the new Guidelines include:
- clarity on the timelines for ACCC processes;
- acknowledgement of recent practices introduced by the ACCC (e.g. pre-assessment clearance, market feedback letters); and
- clearer statements on co-operation and co-ordination with international regulators and the impact this has on Australian merger clearances
The Process Guidelines largely reflect recent experience in Australian merger control, namely that difficult cases are taking longer, although the vast majority of straightforward cases can be dealt with relatively expeditiously.
The Process Guidelines reflect that:
- Matters that can be pre-assessed (i.e. without the need for market inquiries) are dealt with in approximately 2 weeks (pre-assessments are described further below).
- Most mergers where there are not significant competition concerns are cleared within 8 weeks.
- Phase one reviews, ie those cleared or blocked without a Statement of Issues, take between 6-12 weeks (up from 2-8 weeks in the 2006 Guidelines).
- Phase 2 reviews, ie where the ACCC issues a Statement of Issues and conducts a second round of inquiries (a further 6-12 weeks).
- Consultation on proposed remedies (such as undertakings to divest or other remedies) will vary depending on the complexity of the issues and remedies.
The revised timelines included in the Process Guidelines are significantly longer than thosepreviously stated. The ACCC states that the longer timelines are in response to the fact that the complexity and competition concerns involved in a merger are not always apparent from the start of the process. These revised timelines are a more accurate reflection of what has been happening in practice, particularly in more complex matters.
In our experience, two features of the Australian regime feed into the prospect of longer review timelines when compared with some overseas regimes. The first is the flexibility of the process (the timelines set by the ACCC are provisional or indicative only, and not binding on the ACCC, the merger parties, nor interested parties). The second is the importance of the market inquiry process – substantive issues raised by the market are generally thoroughly investigated by the ACCC and play a sometimes greater role than in international counterpart regimes.
Acknowledgement of current practices
Where a merger has a low likelihood of substantially lessening competition, the ACCC may decide to give a ‘pre-assessment’ clearance. During this 1-2 week process, the ACCC examines the merger ‘on the papers’, based on information provided by the parties, and otherwise available to the ACCC, to see if it can be cleared without the need for market inquiries. The pre-assessment process provides a quick clearance for uncontroversial mergers while allowing the ACCC to focus its resources where needed.
The pre-assessment process has been used by the ACCC for a number of years and is now included in the Process Guidelines. According to the ACCC, a significant portion of mergers notified to it are capable of being pre-assessed.
The overt acknowledgement in the Process Guidelines is a positive development in the ACCC’s approach to less complex mergers. It provides parties with a rapid evaluation option which is particularly valuable where the ACCC has previously examined an industry in detail.
Market feedback letter
Another ACCC practice which has been formalised in the Process Guidelines is the market feedback letter (commonly referred to as a ‘transparency letter’). This is a letter provided to the merger parties detailing issues which have been raised during either the initial (phase one) market inquiries process or a further (phase two) process following the release of a Statement of Issues (SOI). The transparency letter usually does not provide the ACCC’s ultimate views on the relevant issues (and indeed the issues raised may have no effect on the ACCC’s final decision), however it does provide the merger parties with an opportunity to promptly respond to any concerns which have been raised by interested parties.
The ACCC has always consulted with international regulators on multi-jurisdictional mergers. The Process Guidelines provide more detail on the ACCC’s approach to international cooperation, noting that:
- The ACCC expects to be given the same notice of mergers as overseas regulators with simultaneous lodgement of submissions.
- In some circumstances the ACCC may suspend its review pending discussions with an international regulator.
- Where the issues raised by the merger are of a global nature and there are no issues which are unique to Australia, the ACCC timelines may be adjusted to co-ordinate with the timing of overseas regulators.
- If discussions with international regulators do not require disclosure of confidential information, they will occur freely without seeking consent of merger parties. However, if confidential information is to be disclosed, the ACCC must seek a confidentiality waiver from the merger parties. The ACCC has a standard waiver form it requires merger parties to use – this waiver will not permit parties to limit the use by the ACCC of the information exchanged for the purpose of the merger clearance only.
- The ACCC will also consult with overseas regulators in relation to remedies and will typically require (where matters can be resolved by remedies) that undertakings be provided to the ACCC to address issues in Australia and ensure that the ACCC has the ability to enforce them. This will generally be the case even if remedies have been given to an overseas competition regulator.
Quicker published decisions?
A Public Competition Assessment (PCA) is a detailed summary of the issues the ACCC considers in a merger and the reasons for its decision. PCAs are not issued in all cases, but usually do occur in high profile matters. While not reflecting ‘precedent’ as such, they are a useful tool to merger parties interested in understanding the ACCC’s practice. In recent times, the number of PCAs has been diminishing, and timeframe for publication has been expanding.
The ACCC will now endeavour to release a PCA as soon as practicable and in any case within 30 business days of a decision being made. Under the 2006 Guidelines the ACCC stated that it endeavoured to provide a PCA within 2 weeks, although this was changed to ‘as soon as possible after making a decision’ in May 2011. In practice this targeted timing has often been exceeded, particularly in recent years where a marked slow-down has seen PCAs delayed for many months (or not published at all). The inclusion in the new Process Guideline of both a realising targeted timing, together with a stronger commitment to meeting it will hopefully result in a more prompt release of PCAs.
Perhaps somewhat controversially, the Process Guidelines note that the ACCC may delay the publication of its PCA for mergers which are likely to become the subject of litigation.
Some other features retained
Use of compulsory information gathering powers
Although the Process Guidelines reflect an ‘informal’ clearance regime, recent practice in complex matters has shown a heightened formality emerging. The ACCC has indicated in the Process Guidelines that it relies primarily on voluntary provision of information by merger parties and third parties, but it will, where appropriate, use its statutory powers to compel merger parties (and in some limited cases third parties) to provide it with information in these circumstances.
The ACCC says it will seek information in this way only when it considers it will be the ‘most effective and/or efficient way of gathering the information necessary to make a decision’. Contrast this with the 2006 Guidelines which indicated that the ACCC would usually approach parties voluntarily first, but would consider using statutory powers having regard to factors including ‘time pressures and any inability, refusal or failure to comply with a voluntary request’.
Mergers can be blocked without SOI
A merger may be opposed by the ACCC without the release of a SOI and without the ACCC undertaking the further phase two market inquiries process. This is a shift from the 2006 Guidelines (though in practice the ACCC has done this before). The ACCC notes this would only occur in limited circumstances where the merger in question clearly substantially lessens competition and further market inquires would not produce further significant information.