AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
3.8 Pre-Notification Discussions With Authorities Pre-notification engagement is highly encouraged, particularly for complex transactions. These discus - sions are confidential and are vital for agreeing on the scope of required data and narrowing the plausible market definitions before formally starting the statu - tory review timeline. 3.9 Requests for Information During the Review Process Requests for information (RFIs) are frequent and can be extensive, particularly in Phase 2. The ACCC rou - tinely deploys its compulsory information-gathering powers (Section 155 notices) to request vast tranches of internal emails, data sets, and executive examina - tions. Such requests can be issued to the transaction parties and other market participants. Formal statu - tory RFIs automatically “stop the clock”, suspending the review timeline until the ACCC determines the merger parties have fully complied with the request. 3.10 Accelerated Procedure The regime’s primary accelerated track is the Notifica - tion Waiver. Designed specifically for simple transac - tions lacking horizontal overlaps or vertical concerns, it is a fast, low-cost (AUD8,300) application. The core substantive test is whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition (SLC) in a relevant market in Australia. As part of the legislative reforms that introduced Aus - tralia’s mandatory merger regime, the definition of SLC was expanded to include any transaction that “creates, strengthens or entrenches a position of sub - stantial market power”. This significantly lowers the barrier for ACCC intervention, deliberately targeting dominant firms attempting to make incremental, con - solidating acquisitions. 4. Substance of the Review 4.1 Substantive Test If a transaction fails the SLC test, the ACCC may alter - natively clear it via the Phase 3 Public Benefit path -
the 30-day clock expires. If the ACCC determines that the acquisition could have the likely effect of substantially lessening competition, it will not issue a formal notice of concerns in this phase; instead, it may clear the transaction with remedies or offi - cially transition the review into Phase 2. • Phase 2 – This is an in-depth review period lasting up to an additional 90 business days. It is only dur - ing this second phase that the ACCC issues a for - mal Notice of Competition Concerns (NOCC). The ACCC is statutorily required to issue the NOCC to the notifying parties by business day 25 of Phase 2. The NOCC outlines the ACCC’s preliminary legal and economic assessment of why the deal is anti- competitive. The parties have until business day 50 of Phase 2 to formally respond to the NOCC, and until business day 60 to offer formal remedies (such as divestiture undertakings) to cure the identified concerns. The ACCC can disallow the transaction or approve with or without remedies. • Phase 3 Public Benefit Phase – If an optional pub - lic benefit application is made within 21 calendar days of a Phase 2 determination, the ACCC has up to 50 additional business days to disallow or approve the transaction with or without remedies. Overall timelines can be extended by mutual agree - ment or suspended via statutory “stop the clock” mechanisms if the parties fail to answer formal infor - mation requests promptly. The legislation imposes a strict 14 calendar-day hold period during which the parties are legally prohibited from putting the transaction into effect, which com - mences on the date the ACCC publishes its formal reasons for the decision on the public Acquisitions Register. A further practical refinement proposed in the July Bill is a mechanism allowing parties, in appropriate cases, to seek an extension of an ACCC approval that would otherwise become stale after 12 months. If enacted, this would reduce the need for full re-noti - fication where completion is delayed for reasons unre - lated to competition risk, although the ACCC would retain discretion to require a fresh filing where market conditions or transaction parameters have materially changed.
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