Review of the Australian Competition and Consumer Commission annual report 1995-96

Government response

This document has been scanned from the original government response. It may contain some errors.

GOVERNMENT RESPONSE TO HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON FINANCIAL INSTITUTIONS AND PUBLIC ADMINISTRATION (THE HAWKER COMMITTEE) REVIEW OF THE ACCC's 1995-96 ANNUAL REPORT

Recommendation 1

That the ACCC investigate mechanisms whereby the process of accepting s.87B undertakings in merger cases can be made more transparent and that the ACCC report on this investigation to the Committee at a public hearing when the Committee reviews the ACCC's 1996-97 annual report.

Response

Agreed.

The ACCC will review its processes in accepting s.87B undertakings in merger cases to assess whether it may, in certain circumstances, be able to make them more transparent. The ACCC will report on this review to the Committee when the Committee reviews the ACCC's 1996-97 annual report.

Background

Before s. 87B of the Trade Practices Act 1974 (TPA) was enacted, a process had developed over the years, pursuant to which parties would offer informal undertakings to the Australian Competition and Consumer Commission (ACCC) to overcome competition concerns in relation to particular merger proposals or general enforcement matters. However, this informal process had the failings of a lack of transparency (given the lack of formality), problems of enforceability (eg. unless the undertaking was documented in a deed), and inflexibility (eg. if the undertakings were entered into as a court order). The enactment of s.87B provided a more transparent, certain and flexible means to resolve matters (including mergers) which would otherwise breach the TPA.

The ACCC's Approach to s.87B Undertakings in Merger Cases

In respect of merger proposals, the ACCC accepts undertakings that remove its competition concerns, so that die mergers are not likely to substantially lessen competition.

While negotiating undertakings with merger parties, the ACCC generally engages in extensive consultation in respect of the subject matter of the undertakings. This consultation process typically involves the ACCC conducting inquiries with a number of participants in the relevant market.

However, in some merger cases, confidentiality constraints may be imposed by the 'merger parties' to protect commercially sensitive information. Such constraints may restrict the ACCC's ability to release details of the proposed undertakings or the fact that undertakings have been offered during the negotiation process. In these circumstances, the ACCC will still conduct market inquiries to assess the likely impact of the proposed merger, but without disclosing any confidential details of undertakings that may have been offered.

Though confidentiality constraints may, in some cases, limit the ACCC's ability to consult as widely as it would like, the confidentiality constraints may result in negotiations and settlements (by undertakings) that would not otherwise be achieved. This can enable parties to alter their proposals so that the mergers proceed. Confidential negotiations for s.87B undertakings provide a very effective way for companies to avoid litigation, and progress their proposed merger while ensuring that concerns over reduced competition in the market are addressed,

Apart from consultation in the negotiation stage, the ACCC seeks to ensure that undertakings include an express mechanism for consultation and review in the event there are any relevant changes in market circumstances, after an undertaking: has been accepted.

Publication of s.87B Undertakings

Once accepted, undertakings are placed on a public register kept by the ACCC. In some cases, undertakings may contain certain information which the ACCC agrees, at the request of the 'merger parties', needs to be kept confidential (eg. the timing of any divestiture arrangement) and which is not placed on the register. The ACCC will follow up those undertakings which contain confidential information, in order to make them publicly available once confidentiality requirements can be waived.

Enforcement and Other Alternatives

Section 87B undertakings are simply a mechanism by which the ACCC tries to ensure that promises given to it by 'merger parties' are enforceable. The courts retain absolute discretion as to whether to enforce the provisions in an undertaking and the provision of an undertaking is ultimately a matter of choice for the 'merger parties'. Other alternatives include amending the proposal privately, applying for authorisation, proceeding and risking challenge in cowl, or withdrawing from the merger proposal.

Commitment to More Transparency

The ACCC recognises some 'merger parties' may seek to utilise the s. 87B undertaking process as an effective mechanism to ensure that their merger proposals proceed and that third parties affected by the merger proposal may not have an opportunity to intervene in the process of negotiating undertakings. Hence, the ACCC is committed to exercising as much transparency as it can in consulting market participants in relation to undertakings (subject to confidentiality constraints).

Recommendation 2

That the Treasurer initiate a study of the extent to which the benefits of competition are flowing to rural and regional Australia.

Response

Agreed.

The Government wishes to ensure that the substantial benefits achieved from increased competition in the economy (resulting from numerous competitive reforms introduced by the Commonwealth, State and Territory Governments) flow to all Australians, including those who live in rural and regional Australia. The Treasurer intends to request that the Productivity Commission conduct a general review of the economic impact on and benefits to rural and regional Australia resulting from competition reforms introduced following implementation of the Hilmer Report. It is anticipated that this review will cover competition reforms introduced at all levels of government.

The Government believes that the most appropriate time to initiate this study would be towards die end of 1997-98. At that time, it should be possible to make a better assessment of the effects of various reforms which have been implemented and are now coming to fruition.

Recommendation 3

That the ACCC give a higher priority to monitoring and evaluation of the impact of its merger decisions on market competition and that the ACCC report on its findings on a regular basis.

Response

Agreed.

The ACCC plans to give higher priority to monitoring and evaluating the impact of its merger decisions on market competition, and to report on its findings on a regular basis. In this respect, it will undertake evaluation of some past mergers which it plans to include as retrospective studies of selected industry sectors in future annual reports.

The ACCC is presently establishing criteria and methodology by which such evaluation can be make and will then undertake those evaluations.

Recommendation 4

That the Treasurer consult with business and industry, the community and the ACCC to ascertain an appropriate means by which the general impact on competition and benefits to the community, Of the ACCC's merger decisions, could be reviewed over the medium to long term.

Response

Agreed in Principle.

'The Government has no objection to establishing longer term reviews of the competitive benefits of merger decisions made by the ACCC. However, before engaging in wide public consultation as to how medium to long term reviews of such decisions could be conducted, the Government believes it would be desirable to assess the scope for such studies with the benefit of experience from the proposed retrospective studies of past mergers decisions which are to be conducted by the ACCC.

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