Merger authorisations — Australian Competition Law

Competition Law Cases

Merger authorisation decisions

In Australia it is possible for parties to apply to have a merger 'authorised' on public benefit grounds, notwithstanding it might otherwise contravene the prohibition in s 50 of the Act. Mergers may also be authorised if the ACCC does not consider that it will substantially lessen competition.

Since 2017 Following the Harper reforms in 2017 the ACCC regained the power to grant authorisations at first instance. The test for authorisation also changed; the ACCC is now able to grant authorisation either on public benefit grounds or if it does not believe the merger will substantially lessen competition.
2007-2017: In 2007 the power to hear merger authorisations was removed from the ACCC and parties were required to directly to the Tribunal, with no opportunity for merits appeal.
Pre-2007: Before 2007 parties applied to the ACCC for authorisation with the possibility of appeal to the Australian Competition Tribunal.

For more detail on the history of the merger law and authorisation process see the merger page.

Authorisation applications since 2017 (Tribunal appeals)

ANZ & Suncorp

ANZ and Suncorp have applied to the Tribunal for review of merger authorisation MA1000023-1 (4 August 2023) granting the application for authorisation.
The matter is in progress
Members: Justice O’Bryan (President), Dr D Abraham and Prof K Davis.

View Tribunal page (ANZ-Suncorp)
Telstra & TPG Telecom

Telstra and TPG Telecom applied to the Tribunal for review of the ACCC Authorisation Determination MA 1000021, dismissing the application for authorisation.
On 21 June 2023 the Tribunal affirmed the ACCC’s decision.
Members: Justice O’Bryan (President), Dr J Walker and Ms D Eilert.

View Tribunal page (Telstra-TPG)
Controlabill

Controlabill applied to the Tribunal for review of merger authorisation MA 1000020 (9 September 2021) granting the application for authorisation.
Controlabill later sought leave to withdraw its application for review and this was granted by the Tribunal. View determination [2021] ACompT 6.
Members: Justice O’Bryan (President), Dr D Abraham and Prof K Davis.

View Tribunal page (Controlabill)

Authorisation applications since 2017 (ACCC)

ANZ - Suncorp

ANZ proposed acquisition of Suncorp Bank
Outcome: Authorisation refused
Decision: 4 August 2023
Lodged: 2 December 2022
Authorisation number: MA1000023
Commissioners: Lowe, Keogh, Brakey, Carver, Crone, Ridgeway
Note: Appeal to Tribunal filed 25 August 2023
The ACCC refused merger authorisation for ANZ to acquire Suncorp Group’s banking arm. It was not satisfied that the acquisition would not be likely to substantially lessen competition in the relevant market, observing that the proposed acquisition ‘would further entrench an oligopoly market structure that is concentrated, with the four major banks dominating.’
See ACCC media release.
View determination and summary of reasons.

View ANZ - Suncorp authorisation decision
Linfox Armaguard - Prosegur

Linfox Armaguard Pty Ltd and Prosegur Australia Holdings Pty Ltd proposed merger
Outcome: Authorisation granted with s 87B undertaking
Decision: 13 June 2023
Lodged: 27 September 2022
Authorisation number: MA1000022-1
The application related to the parties’ proposal to merge their cash distribution and management services, device monitoring and maintenance and ATM services businesses in Australia. The ACCC was satisfied that, with the undertaking, it would likely result in a public benefit outweighing public detriment.

View Merger Register (Linfox-Prosegur)
Telstra - TPG

Proposed transaction involving TPG authorising Telstra to use spectrum it owns and Telstra providing TPG with network services in certain areas.
Appeal: Appeal to Tribunal failed
Outcome: Authorisation denied
Decision: 21 December 2022
Lodged: 23 May 2022
Authorisation number: MA1000021
Commissioners: Keogh, Rickard, Brakey, Carver, Crone

View merger Register (Telstra-TPG)
BPAY - eftpos - NPPA

Proposed amalgamation of BPAY, eftpos and NPPA
Outcome: Granted (Court enforceable undertaking accepted)
Decision: 9 September 2021
Lodged: 22 March 2021
Authorisation number: MA1000020
Commissioners: Sims, Rickard, Brakey, Ridgeway

View merger register (BPAY-eftpos-NPPA)
Gumtree AU - Cox Australia Media Solutions

Gumtree AU Pty Ltd proposed acquisition of Cox Australia Media Solutions Pty Ltd
Outcome: Authorisation granted (unconditional)
Decision: 30 April 2020
Lodged: 14 January 2020
Authorisation number: MA1000019-1
Commissioners: Sims, Keogh, Rickard, Cifuentes, Court, Ridgeway
Industry: Classified advertising
ACCC summary: 'Gumtree AU Pty Ltd (Gumtree) seeks merger authorisation for its proposed acquisition of Cox Australia Media Solutions Pty Ltd (Cox Media), which operates online platforms CarsGuide.com.au and Autotrader.com.au (CarsGuide/Autotrader). Gumtree and Cox Media (through CarsGuide/Autotrader) both offer online automotive classified advertising to private and commercial advertisers within Australia.
Gumtree operates gumtree.com.au, an Australian multiple category classified advertisement platform, which features automotive classifieds.
CarsGuide and Autotrader are automotive only platforms. CarsGuide offers automotive content, including articles and car reviews, as well as classifieds. Autotrader only offers automotive classifieds.
Gumtree and Cox Media also supply space on their respective websites and mobile applications for display advertising.

View Gumtree authorisation application
AP Eagers - Automotive Holdings

AP Eagers Limited proposed acquisition of Automotive Holdings Group Limited
Outcome: Authorisation granted (with conditions)
Decision: 25 July 2019
Lodged: 29 April 2019
Authorisation number: MA1000018-1
Commissioners: Sims, Keogh, Cifuentes, Court, Ridgeway
Industry: Motor Vehicle retailing
ACCC summary: 'A.P. Eagers Limited (AP Eagers) seeks merger authorisation for its proposed acquisition of Automotive Holdings Group Limited (AHG).
AP Eagers and AHG both supply new and used cars, trucks and buses, as well as associated products and services such as car repair and servicing, authorised car parts, insurance and finance in various parts of Australia, including Brisbane, Melbourne, Sydney and the Newcastle/Hunter Valley region of New South Wales.'
Commentary
Kendy Ding, 'AP Eagers road tests the new merger authorisation process' (King&Wood Mallesons: In Competition, 9 May 2019)

View AP Eagers - Automotive Holdings authorisation

Authorisation related judicial review

ACCC v Australian Competition Tribunal

[2017] FCAFC 150 (22 Sept 2017)

ACCC's application for judicial review regarding process for determining merger authorisation.

See authorisation decision, below.

Authorisation applications between 2007-2017

Australian Competition Tribunal as first instance decision maker

Three mergers were granted authorisation during the ten year period during which the Tribunal had first instance decision-making power in merger authorisation cases (between 2007 - 5 November 2017). There were no instances in which the Tribunal denied authorisation.

Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017)

Tribunal determination (second): authorisation granted

Judicial Review: The ACCC applied for judicial review of the Tribunal's decision on 10 July 2017. CrownBet separately applied for judicial review. The ACCC succeeded on one ground and the matter has been referred back to the Tribunal.

Tribunal determination (original): Authorised subject to condition that Tabcorp divest Odyssey Gaming business in Queensland (20 June 2017)

ACCC consideration: Tabcorp Holdings and Tatts Group - proposed merger

Commenced 25 November 2016. Following release of SoI on 9 March 2017, Tabcorp withdrew its request for informal review and made application to the Tribunal for authorisation. See Tabcorp media release (13 March 2017).
SoI released 9 March 2017 (submissions due 24 March; proposed decision 4 May)

ACCC summary: Tabcorp Holdings Limited (Tabcorp) and Tatts Group Limited (Tatts) propose to merge. Tabcorp and Tatts both operate off-course totalisators and retail wagering networks (in different states and territories) and online wagering businesses. Tabcorp and Tatts both supply gaming and promotional management systems and services to gaming venues and gaming monitoring services to state governments.

Industry: Gaming and wagering

Media: [see case page for more]

Application by Sea Swift Pty Ltd for Merger Authorisation (ACT 2 of 2016)

Application by AGL Energy Ltd for Merger Authorisation (ACT 1 of 2014)

Tribunal determination:

On 25 June 2014 the Tribunal granted authorisation for this proposed acquisition. This was the second application made to the Tribunal since 2007 and the first to involve a Tribunal determination.

Applications made but withdrawn