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Troubling prospect to allow merger changes to shield ACCC from court scrutiny

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In an article published today on the main opinion page of the Australian Financial Review, competition partners Zaven Mardirossian and Gabriel Sakkal argue that a feature of the proposed merger reforms that has slid under the radar to date is the ACCC’s unprecedented attempt to push for changes that will shield its decision-making from the scrutiny of our court system.

While commentators have focussed on the increased administrative burden, costs, uncertainty and delay likely to flow from the proposed overhaul of Australia’s merger regime, Zaven and Gabriel focus on the fact that a more troubling aspect of the changes would be that “our merger laws will sit alone in our competition law as the only provisions not accountable to judicial scrutiny – whether through new evidence (economic or otherwise), examination of witnesses and discovery of internal documentation.”

“The significance of the exclusion of the court is stark when you look at the history of the ACCC’s often head scratching merger decisions,” they write. “And the role our judicial system has played in ensuring merger decisions are based in market reality, rather than ACCC economic theory. Since the current merger test was introduced in 1993, the ACCC has been unsuccessful in all but one of 11 contentious mergers that have come before the court.

“History has shown that time and time again the ACCC has opposed clearly procompetitive mergers based on technical economic and hypothetical theory, and not market realities. In these repeated instances where the ACCC cannot discharge its onus beyond mere hypotheticals, the default should rightfully be to allow mergers that improve our economy.”

To read the full article, click here.

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