The informal merger review process enables merger parties to seek the ACCC’s view on whether the proposed acquisition is likely to have the effect of substantially lessening competition.
Informal process
There is no legislation underpinning the informal process; rather it has developed over time to provide an avenue for merger parties to seek the ACCC’s view prior to completion of a merger.
An informal view by the ACCC not to oppose a merger does not provide the merger parties with protection from legal action by the ACCC or other parties.
Initiating an informal review
Merger parties requesting an informal view from the ACCC should provide a submission outlining details relating to the proposed acquisition, in the manner outlined in:
There is no fee for an informal review.
The ACCC may initiate an informal review in response to information from sources other than the merger parties including complainants, information from Australian and overseas regulators and via the ACCC’s own monitoring activities. The ACCC may also conduct reviews of completed mergers.
Determining whether a public informal merger review is required
For each merger, the ACCC will make an initial assessment based on the information available to determine whether a public review will be required. Where the ACCC is satisfied, based on the information provided, that there is a low risk of a merger substantially lessening competition, the ACCC may decide that it is not necessary to conduct a public review of that merger. These mergers are described as being ‘pre-assessed’.
Acquisitions that are in the public domain and that the ACCC has determined cannot be pre-assessed undergo a public informal merger review. Generally, a public informal merger review will be necessary where the proposed merger raises competition concerns or the ACCC requires information from the market to assist its decision making. Whenever the ACCC conducts a public review, it will make the progress of its review, and its decision, available on its website.
Indicative timelines will be posted on the mergers public register for most public informal merger reviews. The expected decision date will not generally be posted when the merger has already been completed and/or when no submission has been received from the merger parties.
Assessing the merger
Information relating to the analytical framework applied to the assessment of merger proposals (i.e. the merger factors) and the role of section 87B undertakings in merger reviews can be found in: