On 1 July 2013, the Australian Competition and Consumer Commission (ACCC) released proposed Merger Review Process Guidelines (Guidelines) for comment. The Guidelines reflect changes in current practice since their last update in 2006. Key proposed amendments include:
- the inclusion of the “pre-assessment” review protocol. This two week process has been used increasingly for non-contentious mergers since 2010 and is now being formalised into the ACCC’s processes;
- updated review timelines and clarification on decision dates in line with current practice, which sees the ‘standard’ initial public review timeline being extended to 12 weeks (from the 8 weeks in the current guidelines). The ACCC has also provided clearer explanation for the basis on which indicative timelines are set and the expectations that should arise from provisional and proposed decision dates;
- methods for increased transparency in the review process, including additional detail on each step of the process and its anticipated timeframes and more open disclosure on issues which typically arise throughout the review process. The more open disclosure includes ‘transparency’ letters, identifying for the parties during the ACCC’s enquiries, the competition related concerns being raised by market participants;
- the potential narrowing of the process for confidential merger reviews. Under the 2006 Guidelines, even where a merger review was confidential the ACCC would identify issues and concerns which would be the focus if released for market inquiries. There is no mention of these practices in the Guidelines and it remains to be seen if the ACCC has narrowed its disclosure for confidential reviews;
- updated publication timeframes for Public Competition Assessments (PCA). The Guidelines state that the ACCC will publish PCAs as soon as practicable. It remains to be seen if there will be any improvement on considerable delays experienced in the past;
- treatment of confidential information and international mergers. The Guidelines provide more detailed information on the ACCC’s treatment of confidential information, particularly in the context of an international merger. Parties to an international merger must sign a confidentiality waiver and recognise that any ACCC review may be suspended pending the outcome of any review by overseas competition agencies; and
- expanded use of the ACCC’s statutory information gathering powers (under section 155 of the Competition and Consumer Act) to gather information from parties (and from third parties).