We last published Benefits and detriments guidelines in 1997 explaining when we will authorise a transaction.
Since then, we have considered a number of authorisations and the courts have issued further guidance in judgments. While these developments in thinking and approach are reflected in our written decisions, our revised guidelines seek to capture these developments in one place. However, the guidelines reflect only one substantive change from the approach we have developed over the years since 1997.
We no longer presume that an anti-competitive transaction would lead to a loss in productive and dynamic efficiency.
In the past, the Commission moved quickly from finding that a transaction is anti-competitive to assessing the extent of any losses in productive and dynamic efficiency. In effect, there was a presumption that an anti-competitive transaction automatically leads to a loss in productive and dynamic efficiency.
That is no longer the case. Our revised guidelines explain that we assess whether an anti-competitive transaction will likely lead to any losses in productive and dynamic efficiency (and if so, their magnitude) on a case-by-case basis.
Naturally, our approach will continue to evolve just as it has since we published our 1997 guidelines, but we trust these guidelines will help businesses to understand our approach, and assist them in their decision making.
When we will authorise transactions
When assessing an application for authorisation, we consider:
- whether we have jurisdiction to authorise the transaction
- whether the benefits to the community generally, from the transaction, outweigh any anti-competitive detriments.
If we consider that the transaction gives rise to net benefits to the community, we authorise the transaction. An authorised transaction cannot be challenged under certain sections of the Commerce Act for the duration of the authorisation.
We have two processes for considering authorisation applications:
- a streamlined process for straightforward applications; and
- a standard process for more complex authorisations.
The streamlined process section explains when that process is appropriate.