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Third Tribunal merger authorisation

Shopping cartOn 22 June 2017 the Australian Competition Tribunal granted authorisation to Tabcorp to acquire Tatts.

Tabcorp had originally sought informal clearance from the ACCC, but following the ACCC's release of a statement of issues it withdrew the request for informal clearance and made application directly to the Australian Competition Tribunal for authorisation on public benefit grounds.

There was much speculation that the Tribunal would refuse authorisation, especially after opposition from the ACCC during the course of the hearing, but on 22 June it announced it was granting authorisation, accepting nearly all of Tabcorp's claimed public benefits and rejecting public detriment claims.

The ACCC provided an initial response indicating that it 'will now consider the reasons for decision published by the Tribunal.'

On 10 July 2017 the ACCC announded that it had applied to the Federal Court for judicial review of the Tribunal's decision to grant authorisation. On 12 July 2017 CrownBet also filed application for judicial review. See my blog piece for details.

The judgment of the Full Federal Court was delivered at 2:15pm on 20 September 2017. The appeal was successful and the matter will return to the Tribunal for review. Reasons for decision have been embargoed for five days.

For more information, including links to the decision and key extracts, see case page. See also my blog: 'Tribunal Clears Tabcorp/Tatts Merger' (30 June 2017)

 

This case represents the third merger authorisation granted by the Tribunal since it was given power to hear merger authorisations at first instance (all other authorisation applications are first made to the ACCC with the possibility of appeal to the Tribunal; this was also the case for mergers until 2007). The Tribunal has not refused an authorisation application since 2007 (one other was made but was withdrawn for unrelated reasons)

Notably, the Harper Panel recommended that authorisation by removed from the Tribunal at first instance, with initial applications directed to the ACCC (as was previously the case). Legislation is currently before Parliament which would give effect to that recommendation.