Merger timelines and fees

The clock starts on the effective notification date: the day the notification is made and its fee paid, which can be a non-business day. Counting begins on the next business day, business day 1. Paying the fee is not itself a notification: the ACCC confirms the effective notification date in writing once the notification is lodged and any fee is paid.

The ACCC says it “expects to decide around 80% of acquisitions in 15 to 20 business days through early phase 1 decisions or notification waivers.” If no determination is made before the end of the determination period, section 51ABZI(2) of the Act provides that the ACCC is taken to have determined that the acquisition may be put into effect; a deemed determination of that kind carries no conditions.

The ACCC expects only a small number of matters to need phase 2, which begins immediately after phase 1 ends.

The ACCC lists some circumstances in which timelines may be extended or adjusted, including when the notifying party offers a commitment or undertaking, asks for an extension, misses a date for providing information, or takes more than 10 days to answer a compulsory request for information.

When a notified acquisition is approved, the ACCC publishes its reasons on the acquisitions register, and the acquisition cannot proceed for 14 calendar days from that date, to allow for applications to the Tribunal for review. It must then be completed within 12 months of the approval decision, or the parties will need an extension or a fresh notification. How review and extensions work is in waivers, Tribunal review and penalties.

A public benefit application can be lodged only after the ACCC has considered the acquisition’s competitive effects and either did not approve it or approved it with conditions. It must be lodged within 21 calendar days of the ACCC’s decision. The ACCC then weighs whether the acquisition is likely to benefit the public by more than the detriment it is likely to cause.

The phase runs 50 business days, subject to extensions. The ACCC issues a public benefit assessment 20 business days in, and business day 35 is the final day for the parties to respond or offer a remedy.

For the phase 2 fee, the deal’s value is the greater of the market value of the shares and assets acquired and the consideration for them, measured on the contract date or, where there is no contract date, on the effective notification date. Notification fees are paid by electronic funds transfer, with proof of payment uploaded through the portal on the same day; credit card payment is not available for notification fees.

A small business with aggregated turnover of less than $10 million may be eligible for a fee exemption. It is available where the only notifying party, or every notifying party where there are several, is a small business entity in the income year containing the contract date. “Small business entity” takes its meaning from the Income Tax Assessment Act 1997, and the ACCC points to the Australian Taxation Office for more on that definition.