Australia and New Zealand Co-operation Protocol for merger review

The ACCC and the NZCC will apply this protocol to the greatest possible extent when they:

• review the same merger transaction

• exchange information in relation to a merger review being conducted by either the ACCC or the NZCC, or

• otherwise exchange information with the aim of assisting the respective agencies in carrying out their merger review processes and functions.

The protocol formalises several practices which are already used by the ACCC and NZCC and builds on these practices by setting out further opportunities and mechanisms for co-operation between the ACCC and NZCC.

The main objective of the protocol is to enhance co-ordination and information sharing between the ACCC and NZCC in relation to merger transactions involving trans-Tasman or global businesses subject to review in both Australia and New Zealand.

The ACCC Chairman, Graeme Samuel, has indicated that the protocol will reduce business compliance costs, save taxpayers money by reducing the cost of making merger decisions and increase the effectiveness of competition laws in both countries.

Dual review of merger transactions

Some of the measures contained in the protocol include:

• each agency should nominate an appropriate contact person for each merger review

• the agencies should offer the merging parties the opportunity to hold joint meetings with relevant ACCC and NZCC staff to discuss timing and other procedural issues

• the agencies should request that the merging parties give broad waivers of confidentiality in relation to all information they submit in the course of the merger review as this will enable more complete communication between the agencies and the merging parties

• where an agency is providing confidential information to the other agency, it should notify the receiving agency that the information is confidential and advise it of any specific limits/conditions imposed by the merging party in the confidentiality waiver. The agency should not transfer the confidential information, to the receiving party, until it has received written confirmation from the receiving agency that it is willing to accept the material subject to the limits/conditions

• in some situations, the agencies should request that third parties give confidentiality waivers as this will enable more complete communication between the agencies and third parties

• the agencies should encourage the merging parties to consider allowing joint ACCC – NZCC meetings at appropriate points during the merger review. Alternatively, one agency, at the request of the other agency, may ask questions on behalf of the other agency at meetings with the merging parties.

• each agency should liaise with the other agency throughout the course of the merger review and should contact each other at key milestones during the course of review. Key milestones include the commencement and finalisation of market inquiries, the release of the Statement of Issues in Australia, the release of a draft determination in relation to an authorisation, any discussions on potential or appropriate remedies and the issue of a final decision in either jurisdiction.

• the ACCC and the NZCC agree, to the extent possible and consistent with the functions and responsibilities of each, to endeavour to facilitate the compatibility of any remedies accepted. Both agencies should seek to keep the other informed of remedies being considered and of other relevant developments keeping in mind the extent to which remedies may impact on the other jurisdiction’s review.

This protocol does not create any enforceable rights and does not require the ACCC or the NZCC to act inconsistently with the relevant laws in their jurisdiction.

In the event that the protocol requires either agency to act in a way which is contrary to that agency’s functions, aims, interests, priorities or governing legislation then the functions, aims, interests, priorities or governing legislation of the agency will take precedence over the protocol.