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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 three 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)

Broadband Vodafone v ACCC
Commenced: 24 May 2019
In progress
   

Train

ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669
(Justice Beach) (15 May 2019) * subject to appeal *

Mergers: Acquisition involving Queensland rail terminal (s 50 CCA)

   
Supermarket trolly ACCC 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.
   
Gas Australian 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.

See merger clearance page for a selection of concluded reviews.

Image of port

External link ANZ Terminals Pty Ltd proposed acquisition of GrainCorp Liquid Terminals Australia Pty Ltd
Commenced: 9 May 2019
Submissions due: 23 May 2019
Statement of Issues:
25 July 2019
Submissions on SOI due:
8 August 2019
Proposed announcement:
17 October 2019

Industry: Bulk liquid storage

 

Cougar

External link Bis Industries Holdings Limited - proposed acquisition of Cougar Mining Group
Commenced: 17 May 2019
Submissions due: 31 May 2019
Statement of Issues:
8 August 2019
Submissions on SOI due:
23 August 2019
Proposed announcement:
24 October 2019

Industry: Mining

 

Snowflake

External link Emergent Cold proposed acquisition of AB Oxford Cold Storage
Commenced: 2 June 2019
Submissions due: 21 June 2019
Statement of Issues:
15 August 2019
Submissions on SOI due:
30 August 2019
Proposed announcement:
7 November 2019

Industry: Cold storage facility

 

Qantas

External linkQantas acquisition of interest in Alliance Aviation Services
Commenced: 7 February 2019
Submissions due: 4 March 2019
Original Proposed date for announcement:
-

Completed acquisition: 'The ACCC is investigating Qantas’ acquisition of a 19.9 per cent stake in Alliance Airlines, to assess whether there has been a breach of section 50 of the Competition and Consumer Act.'

Industry: Aviation

 

Slices of cheese

External link Saputo Dairy - Lion Dairy and Drinks' cheese business
Commenced: 16 May 2019
Submissions due: 30 May 2019
Further information received:
18 July 2019
Statement of Issues: 8 August 2019
Submissions due on SOI: 22 August 2019
Proposed announcement: 26 September 2019

Industry: Dairy - specialty cheese

 

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.

Following the Harper reforms in 2017 the ACCC regained the power to grant authorisations at first instance. The test for authorisation has also changed; the ACCC is now 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 since November 2017
(ACCC first instance decision-maker)

See also ACCC merger authorisation register

Car sale

AP Eagers Limited proposed acquisition of Automotive Holdings Group Limited

Lodged: 29 April 2019

Authorisation number: MA1000018-01

Industry: Motor Vehicle retailing

ACCC summary: 'A.P. Eagers Limited (AP Eagers) seeks merger authorisation for its proposed acquisition of Automotive Holdings Group Limited (AHG).

AP Eagers and AHG both supply new and used cars, trucks and buses, as well as associated products and services such as car repair and servicing, authorised car parts, insurance and finance in various parts of Australia, including Brisbane, Melbourne, Sydney and the Newcastle/Hunter Valley region of New South Wales.'

Submissions due: 17 May 2019

Market feedback letter released:24 June 2019

Submissions due on market feedback letter: 3 July 2019

Proposed announcement: July 2019

Commentary: Kendy Ding, 'AP Eagers road tests the new merger authorisation process' (King&Wood Mallesons: In Competition, 9 May 2019)

 

 

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