Mergers
Overview
Australia's competition laws prohibit acquisitions which have, or would be likely to have, the effect of substantially lessening competition in any market. There is no requirement that a controlling interest be acquired and asset acquisitions alone are sufficient where they will produce an anti-competitive effect. Consequently, for example, acquisitions of land, intellectual property rights or other non-controlling interests which produce the necessary anti-competitive result may be caught.
Mergers or acquisitions which would otherwise be prohibited may be 'authorised' in advance where the parties can demonstrate a public benefit which would outweight the likely anti-competitive detriment associated with the merger or where it can be shown the merger would not substantially lessen competition.
There are no mandatory pre-merger notification requirements in Australia's competition laws. However, in practice, parties are encouraged to - and do - notify the Australian Competition and Consumer Commission (ACCC) about proposed mergers which may raise competition concerns. This process is informal and ACCC approval does not provide assurances against subsequent third party litigation.
The legislation
The prohibitions are contained in:
50 Prohibition of acquisitions that would result in a substantial lessening of competition
Authorisation (key provisions)
Prohibited conduct
The prohibition
Section 50 of the Competition and Consumer Act 2010 prohibits the direct or indirect acquisition of shares or assets where the acquisition would have, or be likely to have, the effect of substantially lessening competition in any market.
In addition, section 50A deals with mergers occurring outside Australia; however, because section 50 is broad enough to cover most anti-competitive mergers producing anti-competitive effects in Australia, this provision has not been used in practice.
Acquisition of shares or assets
There is no requirement that a controlling interest be acquired and asset acquisitions alone are sufficient where it will produce an anti-competitive effect. Consequently, for example, acquisitions of land, intellectual property rights or other non-controlling interests which produce the necessary anti-competitive result may be caught.
Substantial lessening of competition
The current substantial lessening of competition test has applied since 1992. There have, however, only been two Federal Court decisions applying the provision and there is no High Court authority. The necessary level of proof required to demonstrate a proposed merger would substantially lessen competition is unclear following the Full Federal Court's decision in Metcash.
Before an assessment can be made about whether a merger is likely to substantially lessen competition, it is necessary to assess what is likely to happen in the future both with and without the merger (the counterfactual or “future without” and “future with” tests). At trial in Metcash Justice Emmett considered that it was necessary for the ACCC to establish 'on the balance of probabilities' what the 'future state of the market will be, both with and without the proposed acquisition' (para 145), but that if this can be established then it is sufficient to demonstrate that there is a 'real chance' that the proposed acquisition would result in a substantial lessening of competition (para 146). Relying on the decision in AGL at [348] Justice Emmett noted that (at para 136) 'does not encompass mere possibility' but requires assessment 'at a level that is commercially relevant or meaningful'. In Metcash the ACCC had argued multiple counterfactuals and Justice Emmett concluded they were not entitled to succeed unless the Court finds (para 146):
- that it is more probable than not that one of the Commission’s counterfactuals will come to pass if the proposed acquisition does not proceed; and
- that there is a real chance that, if the proposed acquisition does proceed, that would result in a substantial lessening of competition compared to the scenario in which one of those counterfactuals comes to pass.
On appeal to the Full Federal Court, Justice Buchanan disagreed with the trial judge, noting that, in his view, the 'real chance' test should not be applied at all to the application of s 50 [at para 25], instead expressing the view that it is necessary to establish likely substantial lessening of competition 'on the balance of probabilities' (para's 35 and 40). In separate judgments, the two other Federal Court judges did not reach a concluded view on the matter.
Substantial lessening of competition: matters to consider (s 50(3))
When assessing whether or not competition would be substantially lessened as a result of the merger or acquisition, the Court must consider the following factors (section 50(3)):
(a) the actual and potential level of import competition in the market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
(f) the extent to which substitutes are available in the market or are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
This list is non-exhuastive with the result the Court may consider other relevant factors.
Relevant market
Subsection 50(6) provides that:
market means a market for goods or services in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
In addition, section 4E states:
For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.
Although territorially defined, there is case law in relation to other competition law provisions that suggests a global or regional market may be a market for purposes of section 4E: Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136 (2 October 2009). Given the existence of s 50(6) it is unclear whether or not such a broad market may be defined for purposes of the merger provision. However, even if a global market is artificially contained to Australia, the competition analysis will enable this to be assessed in the broader global context.
The Courts have recently emphasised the need for market definition to 'reflect commercial reality, rather than be driven by economic theory' (Justice Buchanan in Metcash para 10)
International Mergers
Section 50A applies where the acquiring corporation is foreign and does not carry on business in Australia. However, asthe extraterritorial breadth of s 50 is wide enough to capture more mergers involving foreign corporations. s 50A is not used in practice.
Merger notification (informal) and authorisation (formal)
On 25 October 2017 the ACCC issued 'interim' guidelines addressing the changes to sectiod
Information clearance
There are no mandatory pre-merger notification requirements in Australia's competition laws.
Informal notification
Parties to mergers having the potential to raise competition concerns generally 'informally' notify the ACCC of the merger and usually will not close during this time. The ACCC may
- indicate it will not challenge the merger
- indicate it will oppose the merger
- indicate it will provide clearance subject to the provision of court enforceable undertakings designed to alleviate competition concerns.
Parties are assisted by the ACCC's Merger Guidelines, both for substantive analysis and procedure. The ACCC publishes public competition assessments for mergers which are opposed or are otherwise of public interest (see merger cases page).
In August 2017 the Chairman of the ACCC, Rod Sims announced that the ACCC would be taking a more documentary-heavy approach to evidence gathering in contentious merger cases, including more s 155 notices which would push out timelines in those cases. See further:
- 'ACCC to increase focus on evidence-gathering in merger cases' (Australian Competition Law Blog, 5 August 2017)
- Wolfgang Hellman, 'ACCC review of contentious mergers: greater scrutiny, longer review periods' (Johnson Winter and Slattery, September 2017)
- Michael Smith, 'ACCC says mergers to take longer under document-heavy approach' (AFR, 5 August 2017)
- Sarah-Jane Tasker, 'ACCC gets more demanding in merger crackdown' (The Australian, 5 August 2017).
Authorisation
Parties may seek authorisation from the ACCC for an acquisition pursuant to s 88 of the CCA. This must occur before the acquisition takes place.
The ACCC will be able to grant authorisation if either they are satisfied the proposed merger will not substantially lessen competition or it will produce a benefit to the public that would outweigh any public detriment. This test is contained in s 90 of the Act.
Note: between 2007-2007 the Australian Competition Tribunal had original jurisdiction to hear merger authorisations; now it is the ACCC that hears authorisation claims at first instance with the possibility of appeal to the Tribunal. During the 10 year period three mergers were authorised; the Tribunal did not refuse authorisation in any case.
During the 10 year period in which the Tribunal had this power there three successul and no unsuccessful applications for authorisation:
- Application by Murray Goulburn Co-Operative Co Limited for Merger Authorisation (withdrawn in 2013 before being heard).
- Application by AGL Energy Limited for merger authorisation (proposed acquisition of Macquarie Generation) (24 March 2014). On 25 June 2014 the Tribunal granted authorisation for the proposed acquisition.
- Application by Sea Swift Pty Limited for merger authorisation (proposed acquisition of certain Toll Marine Logistics assets) (made and withdrawn in 2015; new application 2016). On 1 July 2016 the Tribunal granted authorisation (subject to conditions)
- Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017) (authorised subject to condition that Tabcorp divest Odyssey Gaming business in Queensland (20 June 2017)) (note original application was subject to successful judicial review; the matter was returned to the Tribunal for reconsideration and authorisation granted (again) on 17 November 2017)
Section 4 now defines merger authorisation in the following terms
merger authorisation means an authorisation that:
(a) is an authorisation for a person to engage in conduct to which section 50 or 50A would or might apply; but
(b) is not an authorisation for a person to engage in conduct to which any provision of Part IV other than section 50 or 50A would or might apply.
overseas merger authorisation means a merger authorisation that is not an authorisation for a person to engage in conduct to which section 50 would or might apply.
Merger guidelines

Although there is no mandatory reporting obligation for proposed mergers in Australia, parties proposing to merge generally do notify the ACCC when proposing to merge and rely upon both the analytical and process guidelines produced by the ACCC to inform this process.
The current applicable guidelines for mergers in Australia are:
- ACCC Merger Guidelines (2008) (analytical)
- ACCC Informal Merger Review Process Guidelines (2013)
- ACCC Merger Authorisation Gudelines (2017) (for consultation)
- ACCC Media Mergers (2017)
Merger Guidelines (2008) (analytical)
Merger Review Process Guidelines (2013)
See ACCC Informal Merger Review Process Guidelines (2013)
See also Peter Campbell, 'New ACCC Merger Process Guidelines' (July 2013)
Merger authorisation Guidelines (2017)
Merger authorisation guidelines 2017 (for consultation)
Media authorisation guidelines 2017
(released for consultation following Harper Reforms)
Media Mergers Guidelines (2017)
Media merger guidelines 2017
(replacing the 2006 Media Merger Guidelines)
Penalties for contravention | Private remedies
Application may be made to the Federal Court for the following:
- Injunction (section 80) (only the ACCC or Minister)
- Pecuniary penalties for breach (section 76)
- Divestiture (section 81)
- Damages (by persons who suffer loss and damage as a result) (six year limitation period) (section 82)
- Disqualification from directorship (section 86E)
- Non-punitive orders (such as community service order) (section 86C)
- Other orders (Court may make 'such orders as it thinks appropriate' (section 87)
View penalties page for details.
In addition, the ACCC may accept enforceable undertakings pursuant to s 87B. These are utilized by the ACCC to alleviate competition concerns in some merger cases.
Note that the ACCC has no power to block a merger; this power resides solely with the Federal Court of Australia.
Cases
Current test (substantial lessening of competition)
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ACCC v Metcash Trading Limited [2011] FCA 967; [2011] FCAFC 151 (appeal) (Full Federal Court) |
ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669 (FCA page) Mergers: Acquisition involving Queensland rail terminal (s 50 CCA) |
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Australian Gas Light Company v ACCC (No 3) [2003] FCA 1525 (Federal Court) |
Previous test (dominance)
Arnotts Limited v TPC (1990) ATPR para 41-061;
(1990) 97 ALR 555; (1990) 24 FCR 313
Merger
- market definition (different types of biscuits)
Davids Holdings v Attorney-General (1994) 49 FCR 211
QIW Retailers Ltd v Davids Holdings (1993) ATPR 41-226
Mergers; Trade Practices Economics
Authorisations
Re QIW Ltd (1995) 132 ALR 225
Merger, Market definition
Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Mergers; Trade Practices Economics
AGL proposed acquisition of Macquarie Generation
Decided 25 June 2014 (authorisation granted)
Sea Swift Pty Ltd proposed acquisition of certain assets of Toll Marine Logistics Australia’s marine freight operations
Authorisation granded on 1 July 2016
Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017)
Authorisation granted on
20 June 2017 (ACCC applied successfully for judicial review)
History of the provision
There have been several reviews into the operation of the merger laws
History in brief
There have been several reviews into Australian merger law and regulation.
The original 1974 Act prohibited the acqusition of assets and shares, which resulted in a substantial lessening of competition in a market for goods or services. Only three years later, this test was replaced with a market dominance test; mergers were only prohibited where they resulted in or substantially strengthened a ‘position to control or dominate a market’.
In 1989 the Griffiths Committee recommended retaining the dominance test; shortly thereafter, in 1991, the Cooney Committee recommended a substantially lessen competition test. The Cooney Committee recommendation resulted in legislative change in 1992, returning the test to one of 'substantial lessening of competition' and introducing a non-exhaustive list of matters the Court must consider in making this assessment (s 50(3))
In 2002, numerous submissions were made to the Dawson Committee recommending that the substantive test for mergers change back to one of dominance, incorporate an ‘efficiency’ test or incorporate a public benefit test. The Dawson Committee recommended that the substantive test of ‘substantial lessening of competition’ be retained and this was accepted by the government; there has been no change to the substantive test since 1992 other than the following changes, which have had no demonstrable impact on the provision, in 2011:
- changing the reference to 'a market' in section 50(1) with 'any market'
- removing the requirement in subsection 50(6) that a market (for purposes of mergers) must be a 'substantial' market
Procedurally, the Dawson Committee made recommendations relating to merger clearance and authorisation processes which came into effect in 2007. In particular, the power to hear merger authorisation claims at first instance moved from the ACCC to the Tribunal and a formal merger clearance process was introduced, to operate in parallel with the successful informal process.
In 2014-2015 an independent review of Australia's competition law and policy (the Harper Review) recommended that the current substantive test for mergers be retained. However, it made significant recommendations in relation to process; in particular, it recommended combining the formal clearance process and the authorisation process (retaining the informal process) and giving the power back to the ACCC to make a determination on formal applications at first instance.
The Government accepted these recommendations in 2015 and, in 2017, legislation was passed to give effect to the changes and they came into operation on 6 November 2017.
Original prohibition (1974)
Section 50
(1) A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate where the acquisition is likely to have the effect of substantially lessening competition in a market for goods or services.
(2) This section does not apply to an acquisition of assets of a body corporate in the ordinary course of business.
(3) Where-
(a) a corporation has entered into a contract to acquire shares in the capital, or assets, of a body corporate;
(b) the contract is subject to a condition that the contract will not come into force unless and until-
(i) the corporation is granted an authorization to acquire the shares or assets; or
(ii) sub-section 94 (3) applies in relation to the acquisition of the shares or assets; and
(c) the corporation applied for the grant of such an authorization, or gave a notice of the proposed acquisition to the Commission under sub-section 94 (1), before the expiration of 7 days after the contract was entered into or the expiration of 14 days after the commencing date, whichever was the later,an acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before-
(d) in a case where the corporation applied for the grant of an authorization-the application for the authorization is disposed of;
(e) in a case where the corporation gave a notice to the Commission under sub-section 94 (1)-
(i) the Commission gives notice to the corporation as mentioned in paragraph 94 (3) (a); or
(ii) a period of 30 days elapses after the corporation gave the notice to the Commission; or
(f) the contract ceases to be subject to the condition, whichever first happens.
(4) For the purposes of sub-section (3), an application for an authorization shall be taken to be disposed of-
(a) in a case to which paragraph (b) of this sub-section does not apply-at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or
(b) if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization-at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.
Following 1977 amendments
Section 50 Mergers
(1) A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate if-
(a) as a result of the acquisition, the corporation would be, or be likely to be, in a position to control or dominate a market for goods or services; or
(b) in a case where the corporation is in a position to control or dominate a market for goods or services-
(i) the body corporate or another body corporate that is related to that body corporate is, or is likely to be, a competitor of the corporation or of a body corporate that is related to the corporation; and
(ii) the acquisition would, or would be likely to, substantially strengthen the power of the corporation to control or dominate that market.
(2) If-
(a) a body corporate that is related to a corporation is, or two or more bodies corporate each of which is related to the one corporation together are, in a position to control or dominate a market for goods or services; or
(b) a corporation, and a body corporate that is, or two or more bodies corporate each of which is, related to that corporation, together are in a position to control or dominate a market for goods or services,
the corporation shall be deemed for the purposes of this section to be in a position to control or dominate that market.
(3) In this section-
(a) a reference to a market for goods or services shall be construed as a reference to a substantial market for goods or services in Australia or in a State; and
(b) a reference to controlling or dominating a market for goods or services shall be construed as a reference to controlling or dominating such a market either as a supplier or as an acquirer of goods or services in that market.
(4) Where-
(a) a corporation has entered into a contract to acquire shares in the capital, or assets, of a body corporate;
(b) the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the corporation has been granted an authorization to acquire the shares or assets; and
(c) the corporation applied for the grant of such an authorization before the expiration of 14 days after the contract was entered into, the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before-
(d) the application for the authorization is disposed of; or
(e) the contract ceases to be subject to the condition, whichever first happens.
(5) For the purposes of sub-section (4), an application for an authorization shall be taken to be disposed of-
(a) in a case to which paragraph (b) of this sub-section does not apply-at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or
(b) if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization-at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.
Following 1992 amendments
Trade Practices Legislation Amendment Act 1992 (Section 6)
Prohibition of acquisitions that would result in a substantial lessening of competition
Section 50 of the Principal Act is amended:
(a) by omitting subsections (1) to (3) (inclusive) and substituting the following subsections:
"(1) A corporation must not directly or indirectly:
(a) acquire shares in the capital of a body corporate; or
(b) acquire any assets of a person; if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
"(2) A person must not directly or indirectly:
(a) acquire shares in the capital of a corporation; or
(b) acquire any assets of a corporation;if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market.
"(3) Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:
(a) the actual and potential level of import competition in the market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
(f) the extent to which substitutes are available in the market or are likely to be available in the market;
(g) the dynamic characteristics of the market, including growth, innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.";
(b) by omitting from paragraph (4)(a) "capital, or assets, of a body corporate" and substituting "capital of a body corporate or assets of a person";
(c) by adding at the end of the following subsection:
"(6) In this section:
'market' means a substantial market for goods or services in Australia, in a State or in a Territory.".
Harper reforms (2017)
No substantive change
- Authorisation power resides with ACCC at first instance (appeal to Tribunal)
- Authorisation can be granted either on competition or public benefit grounds (same test as for other provisions; no separate considerations for mergers)
- No 'formal clearance' process
Reports
See merger reports page for details of each of the Australian reports discussing section 50 (mergers) and for key international/foreign reports.
Swanson Committee 1976
The Swanson Committee consdiered that the merger law, as originally enaged, was too 'sweeping' in its application. It recommended a threshold test for application of the provision (to be initially set at $3m). Although this change was not brought in, the Act was amended in 1977 and converted the original
Griffiths Committee 1989
In 1989, the House of Representative Standing Committee on Legal and Constitutional Affairs (the Griffiths Committee) recommended retaining the dominance test in its report ‘Mergers, Takeovers and Monopolies: Profiting From Competition?’. However, no such change was introduced.
Cooney Committee 1991
In 1991, the Cooney Committee recommended a substantially lessen competition test. The Cooney Committee recommendation resulted in legislative change in 1992, returning the test to one of 'substantial lessening of competition' and introducing a non-exhaustive list of matters the Court must consider in making this assessment (s 50(3))
Review of draft merger guidelines 1998
Ahead of the publication of the 1998 Merger Guidelines (now replaced by 2008 Guidelines) a review was conducted by the Industry Commission. See:
Merger Regulation: A review of the draft merger guidelines administered by the Australian Competition and Consumer Commission (1996)
Report of the Industry Commission
Dawson Committee 2003
In 2002, numerous submissions were made to the Dawson Committee recommending that the substantive test for mergers change back to one of dominance, incorporate an ‘efficiency’ test or incorporate a public benefit test. The Dawson Committee recommended that the substantive test of ‘substantial lessening of competition’ be retained and this was accepted by the government.
Procedurally, the Dawson Committee made recommendations relating to merger clearance and authorisation processes which came into effect in 2007. In particular, the power to hear merger authorisation claims at first instance moved from the ACCC to the Tribunal and a formal merger clearance process was introduced, to operate in parallel with the successful informal process.
See Dawson Committee Report - Chapter on Mergers (2003)
Harper Report 2015
In 2014-2015 an independent review of Australia's competition law and policy (the Harper Review) recommended that the current substantive test for mergers be retained. However, it made significant recommendations in relation to process; in particular, it recommended combining the formal clearance process and the authorisation process (retaining the informal process) and giving the power back to the ACCC to make a determination on formal applications at first instance. The Government accepted these recommendations in 2015 and in 2017 legislation was passed to give effect to the changes in 2017.
International and Supranational Reports and Guidance (select)
Europe:
DG Comp, EC, Merger Remedies Study (October 2005)
International Competition Network
Recommendations
ICN Guiding Principles for Merger Notifcation and Review
Adopted at 2002 Annual Conference (First Annual Conference, Naples, Italy, 28-29 Sept 2002)
ICN Recommended Practices for Merger Notification and Review Procedures
Adopted at First Annual Conference, Naples, Italy (September 28-29, 2002). Revised and/or comments added: Second Annual Conference, Mérida, Mexico (June 23-25, 2003); Third Annual Conference, Seoul, Korea (April 21-22, 2004); Fourth Annual Conference, Bonn, Germany (June 5-8, 2005); Fifth Annual Conference, Cape Town, South Africa (May 3-5, 2006)
ICN Recommended Practices for Merger Analysis
Adopted at Seventh Annual Conference, Kyoto, Japan (April 14-16, 2008). Revised Eighth Annual Conference, Zurich, Switzerland (June 3-5, 2009) and Ninth Annual Conference, Istanbul, Turkey (April 27-29,2010)Reports
ICN Merger Working Group Interim Report on the Status of the International Merger Enforcement Cooperation Project (13th Annual Conference, Marrakech, April 2014)
Merger Working Group Comprehensive Assessment 2010-2011
The Merger Working Group, 10th Annual Conference of the ICN, The Hague, Netherlands, May 2011
ICN Information Requirements for Merger Notification (June 2009)
Prepared by the Notification & Procedures Supgroup and presented at the 8th Annual Conference, Zurich, Switzerland, June 2009
Setting Notification Thresholds for Merger Review
Seventh Annual Conference,Kyoto, Japan, 14-16 April 2008
Defining Merger Transactions for Purposes of Merger Review (2007)
Presented at Sixth Annual Conference, Moscow, Russia (May-June 2007)
Merger Remedies Review Report
From the Fourth Annual Conference, Bonn, Germany (June 2005)
ICN Implementation of the ICN Recommended Practices for Merger Notification (April 2005)
ICN Merger Notification Filing Fees (April 2005)
Developed by Merger Notification & Procedures subgroup - report (27 pages) discusses the various types of filing fee regimes.
ICN Merger Remedies Review Report (June 2005)
Developed by ICN Merger Working Group: Analytical Framework Subgroup for the fourth ICN annual conference, Bonn (59 pages)
ICN Report on the Costs and Burdens of Multijurisdictional Merger Review (November 2004)
Prepared by Mergers Working Group: Notification and Procedures Subgroup (26 pages)
ICN Report on Merger Guidelines (April 2004)
This links to the overview chapter of the Project on Merger Guidelines prepared by the ICN Merger Working Group: Analytical Framework Subgroup for the third ICN annual conference in Seoul. Other chapters are:Market Definition, Unilateral effects, Coordinated Effects, Barriers to entry and expansion and Efficiencies.
ICN Merger Investigative Techniques Compendium of Investigative Tools
Report setting out results from a 2002 questionnaire submitted to ICN members - second annual conference, Merida, Mexico (June 2003)
NGA Report on Implementation of ICN Recommended Practices for Merger Notification Procedures
Analyses from a survey of agencies and private practices how recommended practices on notification procedures are implemented.
NGA Survey - Jurisdictional Matrix of Merger Laws
ICN The Analytical Framework for Merger Control 2002
Discussion paper produced for First Annual Conference, Naples, Italy (28-29 September 2002). Related the this, the following country exemplars were produced:
Australia Exemplar - Allan Fels, Merger Law in Australia (11 September 2002)
ICN Framework for Merger Review Cooperation
Document undated, but uploaded to ICN site 12 June 2012
ICN Model Confidentiality Waiver (Mergers) (Discussion Paper)
Developed by Merger Notification & Procedures subgroup. Iillustrative agency waiver forms.
OECD
Reports
OECD 2013 Report on the OECD/ICN Survey on International Enforcement Cooperation
DAF/COMP/WP3(2013)2, Working Party No 3 on Co-operation and Enforcement. 26 February 2013. See also Executive Summary of the Report.
OECD 1999 Report on Positive Comity
OECD 1999 Report on Notification of Transnational Mergers
Policy Roundtables
OECD Competition Policy Roundtables
OECD, 'Jurisdictional nexus in merger control regimes' (Rountable to be held in June 2016)
OECD Policy Rountables: Market Definition (2012) DAF/COMP(2012)24 (11 October 2012)
OECD Policy Roundtables: Economic Evidence in Merger Analysis DAF/COMP(2011)23 (27 July 2012)
OECD Policy Roundtables: Failing Firm Defence (DAF/COMP(2009)38) (2009) (Roundtable No 103)
OECD Policy Roundtables: Managing Complex Mergers (DAF/COMP(2007)44) (2007) (Roundtable No 83)
OECD Policy Roundtables: Vertical Mergers (DAF/COMP(2007)21) (2007) (Roundtable No 68)
OECD Policy Roundtables: Merger Remedies (DAF/COMP(2004)21) (2004) (Roundtable No 48)
OECD Policy Roundtables: Media Mergers (DAFFE/COMP(2003)16) (2003) (Roundtable No 44)
OECD Policy Roundtables: Mergers in Financial Services (DAFFE/CLP(2000)17) (2000) (Roundtable No 29)
OECD Policy Roundtables: Airline Mergers and Alliances (DAFFE/CLP(2000)1) (2000) (Roundtable No 26)
OECD Policy Roundtables: Failing Firm Defence (OCDE/GD(96)23) (1995) (Roundtable No 2)
Other national reports (select)
Canada: Innovation and Dynamic Efficiencies in Merger Review (April 2007)
New Zealand: A Best Practice Review of the New Zealand Merger Clearance Regime (August 2007)
United Kingdom: OFT/CC Review of Merger Guidelines (initiated 2008; includes links to Guidelines)
United States: Pre-Merger/Hart-Scott-Rodino Act (resources from FTC)
Reading
Australia
For articles, speeches, reports and other publications relating to merger law in Australia see reading room - mergers
Other Jurisdictions
For reading generally relating to mergers see global reading page.