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Competition Law Reading Room

Is there a need to change the Australian informal merger clearance process following the Metcash decision?

Dave Poddar
(2012) 20 Australian Journal of Competition and Consumer Law 249

 

Abstract

'This article examines whether in light of the decision of the Full Federal Court to reject the appeal of the Australian Competition and Consumer Commission (ACCC) in Metcash, there should be changes to the ACCC's informal merger clearance process. While there has been a lengthening of the ACCC's timelines in reviewing mergers in concentrated industry sectors such as grocery, this is an understandable reaction to the Federal Court's criticisms of the ACCC's lack of compelling evidence in the Metcash case. This article recognises that the Australian informal merger clearance process is a "creature" of the ACCC and is not a statutory process. It concludes that, provided this lengthening is a temporary situation as the ACCC reviews its merger analysis and in particular its "counterfactual" analysis before again refocusing its merger review processes so that it is commercially timely, then there is no need for wholesale changes.'

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