Is authorisation the answer? AGL has another go

On 4 March 2014 the ACCC published its decision to oppose AGL Energy Limited's (AGL) proposed acquisition of Macquarie Generation (MacGen), principally on the basis that it would result in a substantial lessening of competition in the market for the retail supply of electricity in NSW. In our In Brief on the decision, we commented that it raised significant obstacles to the proposed privatisation of state-owned electricity assets in both NSW and Queensland.

Based on outspoken criticism by AGL's Managing Director and Chief Executive Officer, Michael Fraser, of the legal and factual basis for the ACCC's decision, it seemed likely that AGL would seek to challenge the ACCC's decision. However, unlike the approach it adopted in relation to the acquisition of the Loy Yang generation assets in Victoria, when it sought a Federal Court declaration that the acquisition did not breach section 50 of the Competition and Consumer Act, AGL has instead sought merger authorisation