Global Antitrust Institute Comment on Australia’s Exposure Draft Regarding Amendments to the Review of Mergers and Acquisitions

Abstract

The Global Antitrust Institute submits this comment regarding Australia's proposed amendments to the review of mergers and acquisitions. The proposed move from a voluntary to a mandatory pre-merger notification system holds the potential to reduce false negative error in merger review. There is a "loophole" in the proposed amendments, however, that would tend to exacerbate the risk of false positive error by allowing the Australian Competition and Consumer Commission to extend the determination period for merger review indefinitely, in a way not subject to review by the Australia Competition Tribunal. This loophole would tend to have a chilling effect on mergers and acquisitions that are not likely to substantially lessen competition. We propose a simple fix to close the loophole.

Keywords: merger review, pre-merger notification, decision error

JEL Classification: K21, L40