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Competition and Consumer Act 2010 (Cth)

Section 95AR
Minor variations of clearances

 

The provision

Application for variation

(1) A person to whom a clearance was granted may apply to the Commission for a minor variation of the clearance.

Requirements for valid application

(2) To be valid, the application must:

(a) be in a form prescribed by the regulations and contain the information required by the form; and

(b) be accompanied by such other information or documents as are prescribed by the regulations; and

(c) be accompanied by the fee (if any) prescribed by the regulations.

(2A) The regulations may prescribe that the application form contain a requirement that the applicant give an undertaking under section 87B that the applicant will not make the acquisition while the application is being considered by the Commission.

Commission to notify if application is invalid

(3) If the Commission receives a purported application that it considers is not a valid application, it must, within 5 business days of receiving the purported application, give the person who made the purported application a written notice:

(a) stating that the person has not made a valid application; and

(b) giving reasons why the purported application does not comply with this Division.

Application to be published on the Internet

(4) The Commission must, if it is satisfied that the variation sought in the application is a minor variation:

(a) subject to section 95AI (confidentiality), put a copy of the application on its website; and

(b) by notice on its website, invite submissions in respect of the application within a period specified by it.

Commission must make a determination on the application

(5) The Commission must make a determination in writing:

(a) varying the clearance; or

(b) refusing to vary the clearance.

The Commission must notify the applicant in writing of its determination and give written reasons for it.

(5A) In making its determination, the Commission must take into account:

(a) any submissions received within the period specified under subsection (4); and

(b) any information received under section 95AJ within the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and

(c) any information received under subsection 95AK(1) within the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section); and

(d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (11) of this section).

(5B) In making its determination, the Commission may disregard:

(a) any submissions received after the period specified under subsection (4); and

(b) any information received under section 95AJ after the period specified in the relevant notice under that section (as that section applies because of subsection (11) of this section); and

(c) any information received under subsection 95AK(1) after the period specified in the relevant notice under that subsection (as that subsection applies because of subsection (11) of this section).

When variation must not be granted

(6) The Commission must not make a determination varying a clearance unless it is satisfied that the acquisition to which the clearance (as varied) would apply would not have the effect, or be likely to have the effect, of substantially lessening competition (within the meaning of section 50).

Determination varying clearance may also vary clearance conditions

(6A) A determination varying a clearance may also vary the conditions (if any) of the clearance to take account of the variation of the clearance.

Time limits for determining application

(7) If the Commission has not made a determination on the application within the period that begins on the day the application was given to the Commission and ends on the 40th business day after that day, the Commission is, subject to subsection (8A), taken to have made a determination refusing to vary the clearance.

(8) The applicant may, before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of this subsection), agree to the Commission taking a specified longer period to make its determination. If the applicant does, the longer period is taken to be substituted for the period referred to in subsection (7).

(8A) However, if before the end of the period referred to in subsection (7) (including any period that is taken to be substituted for that period by any other application or applications of subsection (8)), the Commission decides that the matter cannot be dealt with properly within that period, either because of its complexity or because of other special circumstances, which must be notified in writing by the Commission to the applicant, the period is extended by a further 20 business days and the longer period is taken to be substituted for the period referred to in subsection (7) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (8)).

2 or more variations at the same time

(9) If:

(a) a person applies for 2 or more variations:

(i) at the same time; or

(ii) in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and

(b) the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the clearance;

the Commission may deal with all of those variations together as if they were a single minor variation.

Applicant may withdraw application

(10) The applicant may, by notice in writing to the Commission, withdraw the application at any time.

Powers of Commission

(11) The following sections apply in relation to an application for a minor variation of a clearance in the same way as they apply in relation to an application for a clearance:

(a) section 95AJ (Commission may seek additional information from applicant);

(b) section 95AK (Commission may seek further information and consult others).

 

Legislative history

 

Commentary

Division 3 of Part VII of the Act was introduced in 2006 following recommendations by the Dawson Committee. Subdivision B allows parties to apply for 'formal clearance' of their mergers. There is no mandatory pre-merger notification regime operating in Australia and the ACCC may still provide informal advice to parties regarding the legality of their proposed merger.

See mergers page.