Merger Assessment Process

Mergers are assessed by CCS on whether or not the merger has resulted or may result in a substantial lessening of competition, unless they are excluded or exempt.  

Under the Competition Act 2004, mergers falling within CCS's purview include mergers between previously independent undertakings, the acquisition of control over undertakings, the acquisition of assets and the creation of joint ventures. 

When deciding whether a merger will result or has resulted in a substantial lessening of competition, CCS will analyse the following areas:

• The immediate competitive constraints faced by the merged entity. CCS will define the relevant product and geographic markets affected by the merger, assessing market power and examining market concentration and structure; 

• The nature and extent of pre- and post-merger competition in the markets CCS has identified;

• The impact of other competitive effects on rivalry, such as barriers to entry, the possibility of expansion by rivals, buyer power, efficiency gains and failing firms/divisions;

• The factors that may be relevant in determining the appropriateness of any remedy and the implementation of remedies by the issuance of directions and/or the acceptance of commitments

How will CCS’s decision affect the merger?

CCS’s decision will state whether the anticipated merger will, if carried into effect, infringe, or whether the merger, if it has occurred, has infringed, the section 54 prohibition.

In the case of a favourable decision (i.e. that the section 54 prohibition will not be, or has not been, infringed), we will take no further action, unless there are reasonable grounds for suspecting that:

• any information on which it based its decision (which may include information on the basis of which it accepted a commitment) was incomplete, false or misleading in a material particular; or

• a party who provided a commitment has failed to adhere to one or more of the terms of the commitment

In the case of anticipated mergers, a favourable decision may be subject to a validity period, in which case the immunity applies only if the anticipated merger is carried into effect within the validity period. If the favourable decision arises from CCS accepting a commitment, the decision and the commitment will be published on CCS’s Public Register.

If CCS proposes to make an infringement decision (i.e. that the anticipated merger will, if carried into effect, infringe, or that the merger has infringed the section 54 prohibition), it will give notice of the proposed infringement decision. The applicant may then choose to apply to the Minister for Trade & Industry for the merger to be exempted on the grounds of public interest.  If CCS proceeds to issue an infringement decision, the decision will be published on the Public Register. Directions to remedy, mitigate or eliminate the adverse effects arising from the merger may also be issued.