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ARTICLE · 03 NOVEMBER 2008

Informal Merger Approval Process: ACCC May Take A Tougher Line On Undertakings

DLA Piper Australia
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A recent statement by the Australian Competition & Consumer Commission (ACCC) chairman Graeme Samuel suggests that the ACCC may take a tougher stance on undertakings given during the informal merger approval process, or consider bringing to an end its practice of accepting such undertakings altogether.

AustraliaAntitrust/Competition Law
Mark Burger
Mark Burger

A recent statement by the Australian Competition & Consumer Commission (ACCC) chairman Graeme Samuel suggests that the ACCC may take a tougher stance on undertakings given during the informal merger approval process, or consider bringing to an end its practice of accepting such undertakings altogether.

Of particular concern to the ACCC are instances of 'bad faith' where the conduct of a party changed once an undertaking had been accepted by the ACCC and the merger completed. Mr Samuel remarked that:

'Before a merger is cleared, the priority of merger parties and their advisers is to get the deal done. Once the transaction is completed however, priorities shift and some parties view the undertaking commitments given to the ACCC as annoying constraints on their commercial strategies. Their priority becomes minimising the impact those undertakings have on their business... If the gaming of the undertaking process continues, the ACCC will have to seriously look at

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