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Competition and Consumer Act 2010 (Cth)

Section 95AS
Revocation of clearance or revocation of clearance and substitution of a new clearance

 

The provision

Application for revocation etc.

(1) The Commission may revoke a clearance, or revoke a clearance and substitute a new clearance, if the person to whom the clearance was granted applies to the Commission for this to occur.

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:

(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’s power to revoke etc. where no application

(5) The Commission may also revoke a clearance, or revoke a clearance and substitute a new clearance, if it is satisfied that:

(a) the clearance was granted on the basis of information that was false or misleading in a material particular; or

(b) a condition of the clearance has not been complied with; or

(c) there has been a material change of circumstances since the clearance was granted.

Commission to give notice

(6) If the Commission is considering making a determination under subsection (5), it must give a notice to the person to whom the clearance was granted and put a notice on its website:

(a) stating that it is considering making the determination; and

(b) indicating the basis on which the determination is being proposed; and

(c) inviting submissions in respect of the determination within the period specified by it.

Commission must make a determination

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

(a) revoking the clearance, or revoking the clearance and substituting a new clearance for the one revoked; or

(b) refusing to revoke the clearance.

The Commission must notify, in writing, the person to whom the clearance was granted of its determination and give written reasons for it.

(7A) In making its determination, the Commission must take into account:

(a) any submissions invited under subsection (4) or (6) that are received within the period specified under that subsection; 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 (13) 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 (13) of this section); and

(d) any information obtained from consultations under subsection 95AK(2) (as that subsection applies because of subsection (13) of this section).

(7B) In making its determination, the Commission may disregard:

(a) any submissions invited under subsection (4) or (6) that are received after the period specified under that subsection; 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 (13) 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 (13) of this section).

When revocation etc. must not be granted

(8) If an objection (other than an objection that, in the Commission’s opinion, is vexatious or frivolous) to a revocation of a clearance is made in a submission:

(a) that was invited under subsection (4) or (6); and

(b) that is received within the period specified; the Commission must not make a determination revoking the clearance unless it is satisfied that it would, if the clearance had not already been granted, be prevented under section 95AN from granting the clearance.

(9) The Commission must not make a determination revoking a clearance and substituting another clearance unless it is satisfied that it would not be prevented under section 95AN from granting the substituted clearance, if it were a new clearance sought under section 95AD.

Time limits for determining application

(10) If the Commission has not made a determination on an application made under subsection (1) 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 (11A), taken to have made a determination refusing to revoke the clearance.

(11) The applicant may, before the end of the period referred to in subsection (10) (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 (10).

(11A) However, if before the end of the period referred to in subsection (10) (including any period that is taken to be substituted for that period by any other application or applications of subsection (11)), 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 (10) (or any other period that is taken to be substituted for that period by any other application or applications of subsection (11)).

Withdrawal of application

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

Powers of Commission

(13) The following sections apply in relation to an application for a revocation, or a revocation and substitution, 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).

Substituted clearances

(14) The following sections apply in relation to a clearance substituted under this section in the same way as they apply in relation to a clearance granted under section 95AM:

(a) section 95AP (Clearance subject to conditions);

(b) section 95AQ (When clearance is in force).

 

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.