Australia merger control (2019)
Produced in partnership with King & Wood Mallesons
Australia merger control (2019)

The following Competition guidance note Produced in partnership with King & Wood Mallesons provides comprehensive and up to date legal information covering:

  • Australia merger control (2019)
  • 1. Have there been any recent developments regarding the Australian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Australia?
  • 2. Under Australian merger control law, is the control test the same as the EU concept of ‘decisive influence’? If not, how does it differ and what is the position in relation to 'minority shareholdings'?
  • 3. Are joint ventures caught by the national merger control provisions (including non-structural, cooperative joint ventures)?
  • 4. What are the merger control thresholds and would a purely foreign-to-foreign transaction be caught (commenting on any ‘effects’ doctrine/policy if relevant)?
  • 5. Are there any specific issues parties should be aware of when compiling and calculating the relevant turnover for applying the jurisdictional thresholds?
  • 6. Where the jurisdictional thresholds are met, is notification mandatory and must closing be suspended pending clearance?
  • 7. Is there any discretion to review transactions that fall below the notification thresholds?
  • 8. Is it possible to close the deal globally prior to local clearance?
  • 9. Is there a deadline for filing a notifiable transaction and what is the timetable thereafter for review by the Australian Competition and Consumer Commission?
  • more

A conversation with Sharon Henrick, Partner and Head - Competition Law and Regulatory - Australia in the Sydney office of international law firm King & Wood Mallesons, on key issues on merger control in Australia.

NOTE–to see whether notification thresholds in Australia and throughout the world are met, see Where to Notify.

1. Have there been any recent developments regarding the Australian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Australia?

The key recent are summarised below.

The Australian Competition and Consumer Commission’s case against Pacific National and Aurizon

In July 2018, following its decision not to grant informal clearance to Pacific National, an provider of above rail services in Queensland, to acquire an intermodal business from Aurizon, also a provider of above rail services in Queensland, the Australian Competition and Consumer Commission (ACCC) commenced civil proceedings in the Federal Court of Australia against Aurizon and Pacific National.

The ACCC is alleging that in July 2017, Pacific National and Aurizon reached an understanding that would lead to Aurizon exiting its Queensland intermodal business through a combination of closure and transactions with Pacific National.

The ACCC is seeking declarations, pecuniary penalties, orders restraining Pacific National from acquiring Aurizon’s Queensland intermodal business and Acacia Ridge Terminal.

According to the ACCC, Aurizon could have