1) Is a merger control regulation in force?

Yes.  

2) Which authorities enforce the merger control regulation?

The Australian Competition and Consumer Commission (ACCC) enforces the Competition and Consumer Act 2010 (Cth) (CCA) which includes merger control provisions. Civil enforcement action can be brought by the ACCC in the Federal Court of Australia. 

3) Relevant regulations and guidelines with links:

Section 50 of the CCA prohibits acquisitions of shares or assets that have the effect or likely effect of substantially lessening competition in a market in Australia.  

Section 50A of the CCA deals with acquisitions that occur outside of Australia which have an effect on a market for goods or services in Australia, however this section has never been relied on.  

Links to the relevant legislation, guidelines and forms are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

Section 45(7) of the CCA provides that the general prohibition on anticompetitive contracts, arrangements or understandings contained in section 45 of the CCA will not apply in relation to contracts, arrangements or understandings that would constitute an acquisition of shares or assets.  Accordingly, this provision ensures that the section 50 prohibition is the provision that takes priority in circumstances where other prohibitions on anti-competitive contracts, arrangements or understandings may otherwise apply. This is commonly referred to as an "anti-overlap" provision.  

The CCA also contains an exception to the cartel and anticompetitive contracts prohibitions for provisions of a sale contract that are solely for the protection of the purchaser in respect of the goodwill of the business (section 51(2)(e)).  

It should be noted, however, that the anti-overlap provision does not shield from liability all provisions of a merger agreement; only those "in so far as" they provide for the acquisition, and the goodwill exception is narrowly drafted. Accordingly, ancillary provisions of a merger agreement, such as non-compete clauses, may still raise issues under other sections of the CCA such as section 45 or the cartel laws. 

Moreover, anticompetitive conduct that takes place in connection with a merger may be captured by section 45 and other prohibitions in the CCA. In particular, merger parties must be careful not to share competitively sensitive information or start integration (e.g. by imposing price or supply conditions on the other party) prior to completion of the merger. The ACCC may consider such conduct "gun-jumping" in contravention of the prohibitions on concerted practices, anticompetitive agreements, and/or the per se prohibition of cartel conduct.  

5) May an authority order a split-up of a business irrespective of a merger?

The CCA does not confer any right on the ACCC to order a "split-up" of a business irrespective of a merger. However, the ACCC can apply to the Federal Court seeking an order that an acquirer divests the shares or assets acquired in contravention of section 50.  

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

While sector‑specific competition laws and regulations apply, they generally do not affect merger approvals. 

One notable exception is the financial sector, in which it is an offence under section 63 of the Banking Act 1959 (Cth) for an authorised deposit-taking institution (ADI) to effect a reconstruction or to enter into an arrangement or agreement for any sale or disposal of its business by amalgamation or otherwise, or for the carrying on of business in partnership with another ADI, without receiving prior written consent from the Commonwealth Treasurer. The Treasurer must consider the national interest when deciding whether to give consent, but must not unreasonably withhold consent.

In addition, the Financial Sector (Shareholdings) Act 1998 (Cth) (FSSA) prohibits a person (or multiple people under an arrangement) from holding more than 20% of the shares in a "financial sector company" (defined as an ADI, an authorised insurance company or a holding company of either type of company). A person who wishes to do so must apply to the Commonwealth Treasurer pursuant to section 13 of the FSSA and must satisfy the Treasurer either that the acquisition is in the national interest or that the person is fit and proper and the company is a new or recently established financial sector company.

Foreign investment control

Generally, foreign persons must notify the Australian Government, through the Foreign Investment Review Board (FIRB), and obtain approval from the Federal Treasurer for acquisitions of any interest in Australian land (or an interest of at least 10% in an Australian land entity), an interest of at least 20% in an Australian entity, or any "direct interest" in an Australian agribusiness or Australian media business, in each case if certain monetary value thresholds are met. A "direct interest" in an entity is generally an interest of at least 10% (or an increase of an existing interest already over 10%) but may include lower levels of interest if accompanied by certain control or commercial rights.

Foreign investors must also notify FIRB and obtain approval from the Treasurer before undertaking various actions related to national security ("notifiable national security actions"), including starting or acquiring a direct interest in a national security business or entity that carries on a national security business, or acquiring an interest in national security land.

All foreign governments and their related entities, including sovereign wealth funds, must also notify FIRB and obtain approval from the Treasurer for any direct investment (usually 10% or more, but lower in certain circumstances) in Australian entities or businesses or assets or land in Australia, regardless of the value of that investment. There are limited exceptions for low level investments which can be explored on a case-by-case basis.

Applications to notify FIRB and obtain approval from the Treasurer are to be lodged using the new Foreign Investment Portal which has been introduced by the Treasury and offers a fully digital, interactive online submission form.

Even where notification is not compulsory, the Treasurer may have power to intervene in various circumstances (for example where the action causes a change of control or causes the acquirer to gain further control over a target, or where the investment may pose a national security concern). The Treasurer may prohibit or unwind transactions if satisfied that they would be contrary to the national interest or national security. A foreign person may choose to notify FIRB and seek to obtain approval in order to avoid the risk of later invention.

The Treasurer may refuse to grant approval where the investment is contrary to national security or the national interest. Issues which will be considered closely as part of the national interest test include competition, government policies and tax revenues, impact on the community, economy and employment and the character of the investor. FIRB's regular practice is to consult with Commonwealth, State and Territory Government departments and agencies, including the ACCC and the Australian Taxation Office, in making its decision. In this context, protected information may be shared with the government of a foreign country where there is an agreement in place that permits the exchange of information, and the ACCC for the purposes of administering the CCA.

Even if the Treasurer has granted approval for actions notified after 1 January 2021, the Treasurer may, in limited circumstances, later exercise a "last resort" power to impose new conditions, vary existing conditions or order divestment of the assets on national security grounds. There are a number of conditions that need to be met before the "last resort" power may be exercised, including that one of the following applies:

• where a foreign investor has made a false or misleading statement in the original review process, or omitted information which made a statement false or misleading; 
• the foreign investor's structure, organisation or business has materially changed or its activities have materially changed since it received the no objection notification or exemption certificate; or
• market circumstances have materially changed since that time.

Additionally, the Treasurer must be reasonably satisfied that the national security risk posed by the change of the business, structure or organisation or activities could not have been reasonably foreseen (or was only a remote possibility previously), or the material change alters the nature of the security risk posed previously, or that the false or misleading statement or omission directly relates to a national security risk. Finally, the Treasurer must be satisfied that exercising the last resort power is reasonably necessary to eliminate or reduce the relevant national security risks.

In addition to obligations to notify FIRB and obtain approval before undertaking various actions, foreign persons are also required in certain circumstances to submit a "register notice" after taking a relevant action, to enable the Registrar to update the Register of Foreign Ownership of Australian Assets. A register notice is submitted via the Australia Tax Office (ATO)'s website.  In some circumstances, a register notice must be submitted after taking a relevant action even if there is no obligation to notify FIRB or obtain approval from the Treasurer before the action is taken. In general, foreign investors will need to submit a register notice within 30 days after they acquire or dispose of an interest or there is a change of at least 5% in the interest in an entity.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Australia has a voluntary merger review regime covering all sectors of the economy. It is not unlawful to complete a merger without notifying the ACCC. A contravention only arises where the merger otherwise breaches section 50 of the CCA.

However, the ACCC expects to be made aware of mergers well in advance of completion where:

1. the products of the merger parties are either substitutes or complements; and
2. the merged firm will have a post-merger market share greater than 20% in the relevant markets. 

If merger parties do not notify the ACCC of mergers that the ACCC would expect to be told about in advance of completion and give the ACCC sufficient time to review the merger, the ACCC can investigate the completed merger and apply to the Federal Court for orders in relation to a breach of section 50 of the CCA including penalties and divestiture orders. 

9) Is there a general definition of transactions subject to merger control?

Section 50 of the CCA applies to any acquisition of shares in the capital of a body corporate or any acquisition of assets. Assets need not constitute a business to be caught by section 50. 

10) Is "change of control" of a business required?

No, a "change of control" is not required for a merger to be captured by section 50.

However, note that section 50A of the CCA (which has never been applied) concerning acquisitions that occur outside of Australia but which have an effect on a market for goods or services in Australia, does refer to the acquisition of a controlling interest. 

11) How is “control” defined?

"Control" is not defined in relation to the section 50 prohibition. The ACCC may review an acquisition for its effect or likely effect on competition, irrespective of whether the acquiring party will obtain control over the target or whether the target will become a subsidiary. 

12) Acquisition of a minority interest

Acquisitions of minority interests may be captured by the substantive prohibition on anticompetitive mergers and the ACCC can commence an investigation into acquisitions of minority interests that it believes may have the effect of substantially lessening competition, even where a notification has not been made. 

13) Joint ventures/joint control – which transactions constitute mergers?

Joint ventures involving the acquisition of shares or assets, and transactions involving the acquisition of joint control over shares or assets, are subject to section 50 of the CCA in the same way as other types of mergers. 

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

N/A

b) Market share thresholds

As noted in topic 8, Australia has a voluntary merger control regime and there are no requirements to file a merger notification. Nevertheless, the ACCC expects to be given the opportunity to review certain mergers that meet the thresholds outlined below.

1. the products of the merger parties are either substitutes or complements; and
2. the merged firm will have a post-merger market share greater than 20% in the relevant markets. 

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

Not applicable, although the ACCC will consider whether a series of previous transactions by the same acquirer over a period of time constitute "creeping acquisitions" that ought to be taken into account in its substantive assessment of the current merger.

19) Temporary change of control

N/A

20) Special industries, owners or types of transactions

N/A

21) Transactions involving only foreign businesses (foreign-to-foreign)

Transactions will be captured by section 50 where one or more of the merger parties is  incorporated, or carrying on a business, in Australia and the merger affects one or more markets in Australia. Global transactions are regularly notified in Australia on this basis.

There is a further prohibition in relation to foreign-to-foreign transactions beyond the reach of section 50 – see section 50A – but this provision has never been invoked.  

22) No overlap of activities of the parties

Section 50 of the CCA prohibits any acquisition of shares or assets which would have or would be likely to have the effect of substantially lessening competition in a market in Australia. Accordingly, it can, in theory, capture mergers where the merger parties' activities do not overlap. 

23) Other exemptions from notification duty even if thresholds ARE met?

N/A

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. The Australian merger notification regime is entirely voluntary and a merger party can notify the ACCC even if the merger is below the thresholds for mergers that the ACCC would ordinarily like to be informed about (i.e. a 20% or more combined share in overlapping or vertically related markets). Merger parties will typically notify the ACCC when they are required to seek the Foreign Investment Review Board approval as the Foreign Investment Review Board will consult with the ACCC in any event, and will not approve a transaction until it is comfortable that the ACCC does not have concerns.  

It is also common for merger parties to notify the ACCC of a merger as a matter of courtesy without formally seeking ACCC clearance where they consider the transaction is highly unlikely to cause competition concerns, but they expect the ACCC to become aware of the deal and wish to anticipate questions the ACCC may ask. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes. The ACCC is entitled to investigate and enforce section 50 regardless of whether the merger exceeds the ACCC's voluntary thresholds. 

26) Referral within the jurisdiction

The ACCC may be notified of proposed acquisitions or mergers by other Australian regulators. In particular, the Foreign Investment Review Board will consult with the ACCC on deals that have been notified to the Foreign Investment Review Board since competition is a factor of national interest. The Foreign Investment Review Board will also consider any decision made by the ACCC to approve or oppose a transaction when determining whether to approve the foreign investment. 

27) Referral from another jurisdiction

The ACCC may work with overseas regulators in relation to multi-jurisdictional merger matters and has cooperation agreements with many regulators around the world. 

The ACCC has a protocol to share information with the New Zealand Commerce Commission in relation to trans-Tasman mergers. The ACCC has two treaties with the United States, enabling cooperation with the Federal Trade Commission and the Department of Justice. 

Further, the ACCC has cooperation agreements with each of: the Ministry of Commerce and the NDRC (China), the Fair Trade Commission (Japan), the Commissioner of Competition (Canada), the European Commission (European Union), the Competition and Markets Authority (UK), the Korea Fair Trade Commission (Korea), the Taiwan Fair Trade Commission and the Taipei Economic and Cultural Office (Taiwan), the Fijian Competition & Consumer Commission, the Consumer Affairs Council of Papua New Guinea, the State Administration for Industry and Commerce (China), the Department of Justice (Philippines), the KPPU (Indonesia) and the Competition Commission (India).

Such cooperation agreements can be located on the ACCC's website here. 

The ACCC is also involved in the International Competition Network through which it collaborates with other international agencies. 

28) Referral to another jurisdiction

See topic 27. 

29) May the merging parties request or oppose a referral decision?

Whether parties can request or oppose a referral decision may depend on the type of information that is proposed to be shared with the relevant overseas regulator. If the information is not "protected information", as defined in section 155AAA of the CCA (e.g. publicly available information), then discussions between the ACCC and the other agencies may occur without seeking the merger parties' consent. However, the exchange of commercially sensitive information can only occur if the ACCC follows the disclosure procedures set out in section 155AAA, or seeks and obtains confidentiality waivers from the parties. 

30) Stage of transaction when notification must be filed

As noted in topic 8, Australia has a voluntary merger review regime – mergers do not have to be notified to the ACCC. Where merger parties determine that they will notify a merger, the most common approach is to seek informal clearance of the merger from the ACCC well in advance of completion. If the ACCC is not given enough time to complete its review of the merger, it may seek an undertaking from the parties to the effect that they will not complete the merger until the ACCC finalises its review and failing that the ACCC may apply to the Federal Court seeking an injunction preventing the merger.  

31) Pre-notification consultations

Informal clearance process

There is no requirement for parties to engage in pre-notification discussions with the ACCC prior to submitting an application for informal merger clearance, although in some cases a courtesy call will be placed, or an initial briefing meeting held, prior to the filing being submitted to the ACCC.

When a notification is received, the ACCC makes an initial assessment of a merger to determine whether a public review is required. Both public and confidential mergers may be "pre-assessed" before being subject to market inquiries. This occurs where the ACCC has made an initial assessment, from the information available, that there is a low risk of the proposed merger substantially lessening competition and that a public review will therefore not be required. Details of mergers that are pre-assessed are not published on the ACCC's public register. 

If a merger cannot be pre-assessed, a review will be conducted. A public review will be undertaken for mergers that are already in the public domain, which ordinarily involves market consultation and requests for information from the merger parties. Parties to a confidential merger may request that the review is undertaken confidentially, but may also choose to allow a public review.  

Parties may choose to undertake a confidential review since the details about or outcome of the confidential review will not be published on the ACCC's register. Confidential reviews cannot be undertaken for completed or purely speculative mergers. The ACCC may either:

1. Take a preliminary view that the proposed acquisition does not raise competition concerns;
2. Conclude that it is not in a position to determine whether there are competition concerns without conducting market inquiries; or
3. Decide that the transaction may or is likely to substantially lessen competition, and that it is necessary to conduct a public review once the transaction is announced. 

A variation on the pre-assessment process above occurs where the ACCC considers it may be capable of clearing the transaction based on confidential "targeted" market inquiries. This involves the ACCC consulting with certain market participants on a confidential basis, without commencing a public review.

Authorisation process

The ACCC strongly encourages any potential applicant to contact the ACCC for informal discussions before lodging an application for merger authorisation. This is best to ensure that the application will be valid as lodged, and that sufficient information and documents will be provided for the ACCC to conduct its review. The ACCC recommends that a draft application be submitted before the pre-lodgment meeting; this will be kept confidential and will not be published on the online register. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules about the timing of notifications in the case of public takeover bids or acquisitions on stock exchanges.  

33) Forms available for completing a notification

Informal clearance process

There are no forms for an informal merger clearance application. The ACCC takes a scaled approach to information requirements for its reviews and allows merger parties to determine how much information they provide up-front. The ACCC can request additional information throughout its review. 

As a general matter, the ACCC considers the following level of information to be required initially to undertake an informal merger review:

• Information about the parties to the transaction including the relevant bodies corporate, trade names and ownership details;
• Details about the transaction including a description of the shares/assets being acquired, whether the transaction is public or confidential, the expected completion date, any key information about the sale agreement (i.e. the value of the transaction) and the rationale.
• Details about the Australian business operations, interests and assets of both the acquirer and the target including: (i) a description of their business activities and the nature of the products or services they supply; (ii) Which functional levels of the market they operate in (i.e. retail, wholesale); (iii) the geographic locations of any relevant sites such as manufacturing or distribution centres, retail operations and/or the areas where the products or services are supplied; (iv) actual or estimated revenues; and (v) any significant industry contractual arrangements such as long term or exclusive supply contracts or distribution agreements.

• Information about any markets in which both merger parties currently supply goods or services or in which they have a supply relationship with one another, including: (i) market shares (based on the market definition) of the suppliers for each market; (ii) the extent of imports to the market(s); and (iii) evidence of any recent or potential new entry or expansion and whether there are any barriers to entry.
• In mergers subject to a public review, a list of the key customers and suppliers of the merger parties and their contact details.

More information can be found in the ACCC's Informal Merger Review Process Guidelines.

34) Languages that may be applied in notifications and communication

English.

35) Documents that must be supplied with notification

Informal clearance process

There are no documents that are required to be supplied with an application for informal clearance. See topic 33 for the types of information that the ACCC would generally expect to see. 

36) Filing fees

Informal clearance process

There is no filing fee to lodge an application for informal merger clearance. 

37) Is implementation of the merger before approval prohibited?

Completion of a merger before ACCC approval is not prohibited by the CCA. However, implementation of a merger, in the absence of completion, (such as the sharing of competitively sensitive information between the merger parties, or the acquirer directing the competitive conduct of the target) may constitute "gun-jumping" conduct and risk breaching the prohibitions on cartel conduct, anticompetitive agreements and/or concerted practices. If the ACCC believes gun jumping conduct has occurred, it may significantly delay its consideration of the proposed merger while it investigates.

As regards the specific clearance processes:

Informal clearance process

It is customary for merger parties seeking clearance from the ACCC to wait until the outcome of the ACCC process, since the ACCC may otherwise seek an injunction to prevent the parties from completing, or orders to unwind a transaction that it has determined will substantially lessen competition in a market. However, there is no specific requirement for merger parties to do so and merger parties that are confident that their merger will not breach section 50 of the CCA could legally (in the absence of an injunction from a Court or a Foreign Investment Review Board review process (as to which see below)) proceed to close the merger before ACCC approval is granted.

38) May the parties get permission to implement before approval?

There is no formal mechanism by which the parties can get permission to implement the transaction in Australia prior to approval. 

39) Due diligence and other preparatory steps

If appropriate controls are in place around the exchange of commercially sensitive information, parties can safely conduct the due diligence required to complete the transaction. Normally, such controls might involve a competition protocol, and a small centralised team with whom information can be shared on a controlled basis. 

As noted above in response to topic 37, merger parties that are competitors should not proceed to take steps to integrate the businesses until after completion. 

Parties should also be mindful that any documents or communications prepared may later be obtained by the ACCC through its investigative powers to compel information under section 155 of the CCA.  

40) Veto rights before closing and "Ordinary course of business" clauses

The general prohibitions on anticompetitive conduct in the CCA will apply to the conduct of merger parties before completion, even after signing. Merger parties must therefore continue to operate their business independently, and an acquirer that competes with the target should not interfere in the competitive activities of the target.  

Clauses in merger agreements that seek to prevent the target from making independent decisions may raise competition concerns and should be reviewed carefully. Any consultation between the acquirer and the target about making business decisions could be deemed "gun-jumping" conduct by the ACCC. Not all restraints on business activities prior to completion will contravene competition laws, but legal advice should first be sought before parties sign the merger agreement and proceed to consult on such matters. 

41) Implementation outside the jurisdiction before approval – "Carve out"

Technically the ACCC may accept a "carve out" where the transaction is international or multi-jurisdictional. The parties will need to "carve out" the acquisition of shares or assets that relate to any Australian market from completion of the transaction overseas, so that the Australian aspects of the transaction do not complete until after approval is obtained. This is, however, very rare and is unlikely to be viewed favourably by the ACCC, particularly where global assets outside of Australia are used to supply goods or services to customers within Australia. 

42) Consequences of implementing without approval/permission

Implementation of a merger prior to completion risks breaching provisions of the CCA on anticompetitive conduct.  Moreover, completing a merger that is likely to substantially lessen competition in contravention of section 50 of the CCA can result in the Federal Court imposing penalties (among other consequences).

Generally, the maximum penalty for a breach of section 50 and other provisions of the CCA concerning anticompetitive conduct is the greater of:

1. AUD 50 million;
2. 3 times the benefit gained; or
3. 30% of the corporation's adjusted turnover during the "breach turnover period" (the duration of the breach or 12 months, whichever is longer).

For individuals the maximum fine is AUD 2.5 million per contravention.

Other orders that can be made by the Court if it finds a contravention include an injunction in such terms as the Court determines to be appropriate and a range of remedial orders including declaring the whole or part of a contract void, varying contracts, ordering payment of compensation, terminating leases and mortgages or requiring land to be transferred.

43) Phases and deadlines

Informal clearance process

As filing is voluntary, there is no statutory deadline.  It is customary to seek informal clearance pre-completion. The ACCC's indicative timeline is set out below. 

44) Tests or criteria applied when a merger is assessed

The ACCC will assess whether a merger is likely to "substantially lessen competition" in any market through an "effect on competition" test. A counterfactual approach is used, which involves a comparison of the likely state of competition in the future if the merger did not proceed, with the likely state of competition if the merger did proceed as proposed. The ACCC refers to this test in its Merger Guidelines as the "future with and without" test. 

As noted in response to topic 3 above, section 50 of the CCA prohibits any acquisition of shares or assets which would have or would be likely to have the effect of substantially lessening competition in a market in Australia. The following (non-exhaustive) matters must be taken into account when assessing whether a merger will breach section 50:

• the actual and potential level of import competition in the market;
• the height of barriers to entry to the market;
• the level of concentration in the market;
• the degree of countervailing power in the market;
• the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
• the extent to which substitutes are available in the market or are likely to be available in the market;
• the dynamic characteristics of the market, including growth, innovation and product differentiation;
• the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor; and 
• the nature and extent of vertical integration in the market.

45) May any non-competition issues be considered?

A merger or acquisition that has the likely effect of substantially lessening competition will generally be prohibited regardless of any efficiencies or other non-competition benefits that may flow from the transaction.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures involving the acquisitions of shares or assets is the same as for other mergers.

47) Decisions and remedies/commitments available

Parties are able to offer the ACCC a court enforceable undertaking under section 87B of the CCA to address competition concerns arising from a proposed merger. A common form of undertaking in the merger context is an undertaking that one of the parties will divest part of its or the target's business or assets to preserve competition in a market where the parties' activities overlap. The ACCC has also previously accepted behavioural undertakings before clearing a merger, although less frequently.

A public register of section 87B undertakings is available on the ACCC's website.

48) How and when will details about the merger be published?

Informal clearance process

The ACCC will not typically give any indication it is reviewing a merger during the pre-assessment phase of its informal clearance process (although it may do so when it is "monitoring" a merger that has been publicly announced). If a merger is cleared during pre-assessment, the ACCC would not typically publish any information indicating that it has pre-assessed the merger. Normally, only the merger parties will be notified of the decision. 

If the ACCC cannot clear the merger during pre-assessment, the ACCC would ordinarily open a case page on its website upon the commencement of a Phase 1 review and publish, at the same time or shortly thereafter, a market inquiries letter.  

If the merger is not cleared following the Phase 1 review, the ACCC will publish a Statement of Issues, outlining its preliminary competition concerns, which will seek further market feedback. It would usually also publish a media statement at the same time. 

The ACCC will then ultimately publish its final decision to either approve or oppose the merger upon completion of the Phase 2 review.  

Neither the parties' submissions nor any feedback received from third parties are made public at any stage during the pre-assessment, Phase1 or Phase 2 processes.

49) Access to the file for the merging parties and third parties

The merging parties:

Informal clearance process

There is no process available to merger parties to access the ACCC's "file" as of right, but if litigation results from the ACCC's review then documents may be produced to the merger parties pursuant to section 157 of the CCA or Court discovery processes.

Third parties:

Informal clearance process

Third parties do not have a right to access the ACCC's "file" in the informal clearance process.

50) Who can appeal and what may be appealed?

Where the ACCC has issued a decision to oppose a merger in an informal merger clearance, the merger parties (or a person with an interest in the merger) may seek a declaration from the Federal Court of Australia that the proposed transaction does not have the effect or likely effect of substantially lessening competition in a market in Australia. There is no right of appeal from the ACCC's decision itself, since it is an informal decision rather than a decision made pursuant to statute.