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Merger cases, authorisations and clearances

Chronological Current cases Merger cases Link to High Court cases

Australian Merger Cases

There have been very few merger cases to reach the courts in Australia. In relation to the current (substantial lesscening of competition) test there have been only two cases and none have gone to the High Court. The merger tests in Australia have applied as follows:

1974-1977: effect of substantial lessening of competition

1977-1992: result in or substantially strengthen a 'position to control or dominate a market'

1993- current: effect (or likely effect) of substantially lessening competition

For more detail on the history of the merger law see merger page.

For clearance decisions before current year see separate merger clearances page.

 

Cases relating to current (competition test) provision (1993 - current)

Supermarket trollyACCC v Metcash Trading Limited
[2011] FCA 967; [2011] FCAFC 151 (appeal)

ACCC alleged proposed Metcash acquisition of Franklins stores would contravene the Act. They failed at first instance and again on appeal to the full Federal Court; no further appeal was made.

GasAustralian Gas Light Company v ACCC (No 3)
[2003] FCA 1525

AGL sought (and obtained) declaration proposed merger would not contravene Act.

 

Cases relating to previous (dominance) merger provision (1977-1992)

Arnotts bisucuit tin
Arnotts Limited v TPC
(1990) ATPR para 41-061; (1990) 97 ALR 555; (1990) 24 FCR 313

Merger - market definition (different types of biscuits)

Supermarket trollyQIW Retailers Ltd v Davids Holdings (1993) ATPR 41-226
Mergers; Trade Practices Economics

Davids Holdings v Attorney-General (1994) 49 FCR 211
The unsuccessful appeal from QIW v Davids

 

Informal merger clearance decisions

There is no mandatory notification regime for mergers in Australia. However, parties frequently notify the ACCC on a voluntary basis of any proposal to merge and the ACCC will advise parties whether or not it proposes to to challenge the merger. In some cases this involves public consultation following the release of a 'Statement of Issues'.

In significant cases the ACCC will also issue a Public Competition Assessment, detailing its reasons for clearing, opposing or clearing a merger subject to conditions. Details of all mergers reviewed are contained in a public register. The following lists some of the more significant 'informal' merger assessments conducted by the ACCC this year - it is not intended to be exhaustive. For pre-2018 assessments see my separate informal merger clearance page.

For a list of current and completed ACCC merger reviews see the merger register.

 

Pending (alphabetical)

Please note that this is not a complete list of pending reviews; see the External linkmerger register for more.

Software

External linkMYOB Group Ltd - proposed acquisition of Reckon Limited's Practice Management Group
Pending: Market inquiries letter sent 12 Jan 2018; closing date for submissions 1 Feb 2018; SOI issued 29 March 2018
Commenced: 12 January 2018
ACCC summary: MYOB proposes to acquire the Practice Management Group from Reckon Limited. The proposed acquisition includes three Reckon businesses: - Reckon APS - Reckon Elite - Reckon Docs The transaction includes all associated clients, IP, systems and employees for these businesses.

Industry: Financial and business management systems

Media: John Durie, 'ACCC to probe MYOB's Reckon acquisition' (The Australian, 15 January 2018) and Brendon Foye, 'ACCC to investigate MYOB's $180 million acquisition of Reckon' (CRN, 15 January 2018)

 

Satellite dish

External linkSeven and Nine - proposed acquisition of Ten's shares in TX Australia
Pending: Market inquiries letter sent 9 March 2018; closing date for submissions 29 March. Provisional announcement: 3 May 2018
Commenced: 9 March 2018
ACCC summary: Nine Network Australia Pty Limited and Seven Network each propose to acquire 50% of Network Ten's one-third interest in TX Australia Pty Limited.

Industry: Media

Media: See John Durie, 'ACCC steps into stoush over broadcast joint venture as Seven seeks transfer of Ten’s stake in TXA' (The Australian, 12 March 2018) and Max Mason, 'Network Ten fighting to stop sale of TX Australia stake for $1' (AFR, 12 March 2018)

 

Shipping containers

External linkSydney Transport Partners Consortium (including Transurban) - proposed acquisition of WestConnex interest
Pending: Market inquiries letter sent 26 Feb 2018; closing date for submissions 19 March. Provisional announcement: 26 April 2018
Commenced: 26 Feb 2018
ACCC summary: Sydney Transport Partners Consortium (including Transurban) proposes to acquire a majority interest in WestConnex.

Industry: Toll Roads

Media: See Jenny Wiggins, 'ACCC to review Transurban's bid for Sydney's WestConnex motorway' (AFR, 27 February 2018)

 

 

Opposed (2018)

None yet

For 2017 see informal merger clearance page.

 

Not opposed (2018)

Hotel room

External linkAAPC Ltd (Accor) proposed acquisition of Mantra Group Ltd
Not opposed: External linkNot opposed on 8 March 2018. Market inquiries letter sent 27 October 2017; submissions due 17 November 2017; Former provisional announcement date of 1 Feb 2018 delayed on 12 Jan 2018 pending receipt of further information from Accor.
Commenced: 27 October 2017
ACCC summary: AAPC Limited (Accor) is proposing to acquire Mantra Group Limited (Mantra). Accor is a wholly owned subsidiary of Accor S.A., one of the world's largest hotel and tourism groups operating under the brand AccorHotels. Mantra is an Australian accommodation operator and provider of hotel management and marketing services.

Industry: Hotel/accommodation

Media: Lisa Allen, 'Mantra acquisition: ACCC wants more detail from Accor' (The Australian, 25 January 2018)

 

Steel balls

External linkMoly-Cop's proposed acquisition of Donhad
Pending: SOI issued on 30 November 2017. Submissions due 21 December. Provisional announcement: 1 March 2018.
Commenced: 15 September 2017
ACCC summary: Moly-Cop's parent company American Industrial Partners proposes to acquire 100% of Donhad. Donhad is currently owned by Valmont Industries, Inc.

Industry: Steel grinding media

 

Shipping containers

External linkQube Logistics - acquisition of Maritime Container Services Pty Ltd (review of completed acquisition)
No further action: Market inquiries letter sent 15 January 2018; closing date for submissions 1 Feb.
Commenced: 15 January 2018
ACCC summary: Qube Logistics acquired Maritime Container Services. MCS operates shipping container import and export handling, empty container storage and road and rail transport services in Sydney. Qube operates shipping container import and export handling and road and rail transport services, and limited empty container storage in Sydney. The acquisition occurred in late December 2017. While the acquisition has already been completed, Qube has provided the ACCC with an undertaking that it will keep the MCS business separate and independent from the remainder of Qube's existing operations until at least 14 March 2018.

Industry: Logistics

No action announcement: On 8 March 2018 the ACCC announced it will not take further action in relation to this completed acquisition

Media: See John Durie, 'ACCC queries Qube's MCS acquisition' (The Australian, 16 January 2018)

 

Shipping containers

External linkSaputo Dairy Australia Pty Ltd proposed acquisition of Murray Goulburn's operating assets
Not opposed (subject to enforceable undertaking): 4 April.
SOI issued 1 March 2018; closing date for submissions 13 March. Final decision: 29 March 2018 (postponed on 28 March to 4 April)
Commenced: 26 Feb 2018
SOI Issued: 1 March 2018
ACCC summary:
Saputo Dairy Australia Pty Ltd proposes to acquire Murray Goulburn's operating assets

Industry:Dairy

Media: See John Durie, 'Saputo has to spill some milk to get MG in the fast lane' (The Australian, 2 March 2018), Carrie LaFrenz and Brad Thompson, 'ACCC has issue with Victorian dairy plant in Saputo, Murray Goulburn deal'' (AFR, 1 March 2018), Peter Hemhill and Simone Smith, 'Saputo-Murray Goulburn deal: ACCC flags concerns' (The Weekly Times, 1 March 2018), Clint Jasper, 'Competition watchdog raises concern over $1.3b foreign takeover of Murray Goulburn' (ABC Rural, 1 March 2018), Sue Neales, 'Saputo rebuffed on Murray Goulburn $1.3bn bid over Koroit plant' (The Australian, 2 March 2018), Darren Gray, 'Mega-milk deal sparks ACCC concern for farmers' (SMH, 1 March 2018).

 

Hotel room

External linkZodiac and Fluidra - merger of pool equipment businesses globally and in Australia
Not opposed: Not opposed on 18 April 2018.
Commenced: 9 March 2018
ACCC competition analysis: 'The ACCC concluded that the proposed merger was unlikely to substantially lessen competition in any relevant market.

The ACCC found that a combined Zodiac and Fluidra would continue to face competition from a number of remaining suppliers including global players and local suppliers, who have a full range of products available in Australia and are able to expand. The ACCC also found that there are specialist manufacturers in particular pool equipment segments who will continue to constrain the merged entity in those segments.

The ACCC found that both full range and specialist manufacturers would likely be able to expand their operations if prices were to increase. There will therefore continue to be alternative sources of supply that will constrain the merged Zodiac/Fluidra.'

Industry: Residential pool equipment

 

For 2017 see informal merger clearance page.

 

Merger authorisations

In Australia it is possible for parties to apply to have a merger 'authorised' on public benefit grounds, notwithstanding it might otherwise contravene the prohibition in s 50 of the Act.

Before 2007 parties applied to the ACCC for authorisation with the possibility of appeal to the Australian Competition Tribunal.

In 2007 the power to hear merger authorisations was removed from the ACCC and parties were required to directly to the Tribunal, with no opportunity for merits appeal.

In 2018 the ACCC will regain the power to grant authorisations at first instance. The test for authorisation will also change; the ACCC will be able to grant authorisation either on public benefit grounds or if it does not believe the merger will substantially lessen competition.

 

Authorisation related judicial review

Image of horse raceACCC v Australian Competition Tribunal [2017] FCAFC 150 (22 Sept 2017)
ACCC's application for judicial review regarding process for determining merger authorisation

 

Authorisation applications between 2007-2017
(Tribunal first instance decision-maker)

Three mergers were granted authorisation during the ten year period during which the Tribunal had first instance decision-making power in merger authorisation cases (between 2007 - 5 November 2017). There were no instances in which the Tribunal denied authorisation.

See also the Tribunal's Merger Authorisation Register.

Tribunal determinations

Image of horse race

Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017)
Tribunal determination (second): authorisation granted

Judicial Review: The ACCC applied for judicial review of the Tribunal's decision on 10 July 2017. CrownBet separately applied for judicial review. The ACCC succeeded on one ground and the matter has been referred back to the Tribunal.

Tribunal determination (original): Authorised subject to condition that Tabcorp divest Odyssey Gaming business in Queensland (20 June 2017)

ACCC consideration: External linkTabcorp Holdings and Tatts Group - proposed merger

Commenced 25 November 2016. Following release of SoI on 9 March 2017, Tabcorp withdrew its request for informal review and made application to the Tribunal for authorisation. See Tabcorp media release (13 March 2017).
SoI released 9 March 2017 (submissions due 24 March; proposed decision 4 May)

ACCC summary: Tabcorp Holdings Limited (Tabcorp) and Tatts Group Limited (Tatts) propose to merge. Tabcorp and Tatts both operate off-course totalisators and retail wagering networks (in different states and territories) and online wagering businesses. Tabcorp and Tatts both supply gaming and promotional management systems and services to gaming venues and gaming monitoring services to state governments.

Industry: Gaming and wagering

Media: [see case page for more] John Durie, 'Tabcorp decision to switch regulators mid-race is being led by lawyers' (The Australian, 13 March 2017), James Thomson and John Stenshold, 'Tabcorp takes Tatts Group merger case straight to Competition Tribunal' (Australian Financial Review, 13 March 2017) and AAP, 'Tabcorp takes Tatts bid to tribunal' (SBS, 13 March 2017).

 

Image of cargo-port

Application by Sea Swift Pty Ltd for Merger Authorisation (ACT 2 of 2016)
See also ACCC authorisation page.
Commenced: 4 April 2016
Authorised: 1 July 2016
Hearing
: The hearing commenced in June 2016.
Sea Swift withdrew its original application (2015) and submitted a new merger authorisation application on 4 April 2016. Sea Swift proposes acquiring assets associated with Toll Marine Logistics in the Northern Territory and far north Qld.

 

Image of power line

Application by AGL Energy Ltd for Merger Authorisation (ACT 1 of 2014)
Tribunal determination: on 25 June 2014 the Tribunal granted authorisation for this proposed acqusition. This was the second application made to the Tribunal since 2007 and the first to involve a Tribunal determination.

 

Applications made but withdrawn

The first was an application to the Tribunal since 2007 was by Murray Goulburn; it was withdrawn before being heard on 23 January 2014:

Image of cargo-port

External linkApplication by Sea Swift Pty Ltd for Merger Authorisation - Act 9 of 2015
Commenced 21 September 2015
Withdrawn 17 November 2015 (new application made 2016)

 

Image of cows

Application by Murray Goulburn Co-Operative Co Limited for merger authorisation – ACT 4 of 2013
Commenced 29 November 2013 (Dairy Industry). Application withdrawn on 23 January 2014.

 

Authorisation applications prior to 2007

Authorisation applications considered by the ACCC or TPC prior to 2007 include:

Image of QANTAS plane

External linkQantas Airways Limited (2005) ATPR 42-065; [2004] ACompT 9 [TRIBUNAL]
ACCC declined authorisation; Tribunal set aside ACCC determination and authorised proposed conduct

 

Image of chemicals

DuPont (Australia) Limited and Ors
(1996) ATPR (Com) 50-231

Merger authorised (international competitiveness)

 

Supermarket trolly

Application for Authorisation by Davids Limited in Relation to the Proposed Acquisition of QIW Limited (1996, A30174, 28 March)

 

Image of QANTAS plane

Qantas Airways Limited and British Airways Plc (1995) ATPR (Com) 50-184

 

Supermarket trolly

Re QIW Ltd (1995) 132 ALR 225
Merger authorisation application

 

Image of aluminium

Comalco Limited and Comalco Aluminium Limited (1994) ATPR (Com) 50-142

 

Image of steering wheel

TRW Australia Ltd (1989) ATPR (Com) 50-087

 

Image of smelting

Pasminco Limited Australian Mining & Smelting Limited (1988) ATPR (Com) 50-082

 

Image of tree trunks

Fletcher Challenge Ltd (1988) ATPR (Com) 50-077

 

Image of tinned fruit

Ardmona, Letona and SPC (1988) ATPR (Com) 50-068

 

Image of cows

Application by Wylie Steel Pty Limited for review of grant of authorization to Broken Hill Proprietary Company Limited re acquisition of BHP/GKN Holdings Ltd. and John Lysaght (Australia) Ltd (1980) ATPR 40-170 [TRIBUNAL]
On the issue of 'sufficient interest' to challenge TPC authorization determination: (1980) 47 FLR 384

 

Image of Adelaide Steamship

Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) ATPR 40-023 [TRIBUNAL]
TPC refused authorisation. Tribunal affirmed TPC's determination.

 

Image of bread (flour)

Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Merger authorisation application