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Competition and Consumer Act 2010 (Cth)

Section 95AB
Commission may withdraw the benefit of class exemption in particular case

Note: The Harper Reforms came into operation on 6 November 2017. This section has been repealed and replaced. The provision set out below has been updated to incorporate this change

 

The provision

(1) The Commission may give a person a written notice if:

(a) a determination in force under section 95AA specifies a kind of conduct; and

(b) the Commission is satisfied that particular conduct of that kind engaged in by the person:

(i) would have the effect, or would be likely to have the effect, of substantially lessening competition; and

(ii) would not result or be likely to result in a benefit to the public that would outweigh the detriment to the public that would result, or would be likely to result, from the conduct.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Commission must, in or with the notice under subsection (1), give the person a written statement of its reasons for giving the notice.

(3) While a notice under subsection (1) is in force, the determination does not apply to the conduct specified in the notice engaged in by the person.

(4) The notice under subsection (1):

(a) comes into force at the time the Commission gives the person the notice; and

(b) ceases to be in force at the earliest of the following times:

(i) if the Tribunal sets it aside under subsection 102(5G)—at the end of the day on which the Tribunal sets it aside;

(ii) if the Commission revokes the notice—when it is revoked;

(iii) the time the determination under section 95AA ceases to be in force.

 

Legislative history

 

Commentary

In 2017 the mechanism for formal clearance was removed and Division 3 of Part VII repealed.

It was replaced with a new Division 3, 'Class Exemptions'.

Division 3 of Part VII of the Act was introduced in 2006 following recommendations by the Dawson Committee. The Division allowed parties to apply for 'formal clearance' of their mergers and provides that merger authorisation applicatons proceed directly to the Australian Competition Tribunal, rather than the ACCC at first instance with the opportunity of appeal to the Tribunal. Immediately prior to the provision being repealed and replaced on 6 November 2017, it took the following form:

In this Division

authorisation means an authorisation granted under this Division.

business day means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory.

clearance means a clearance granted under this Division.

merger authorisation register means the register kept under section 95AZ. merger clearance register means the register kept under section 95AH.

minor variation, in relation to a clearance or an authorisation, is a single variation that does not involve a material change in the effect of the clearance or authorisation.