The ACCC wants the data harvest that might result from a merger to be factored into any regulatory approval of such a transaction.
Speaking at the National Press Club yesterday, ACCC chair Gina Cass-Gottlieb included “increased access to, or control of data, technology or other significant assets” in a list of factors she would like to be able to examine in a proposed merger.
Other factors she would like included in the ACCC’s powers under Section 50 of the Australian Competition and Consumer Act would include “the loss of actual or potential competitive rivalry; whether the acquisition is part of a series of relevant acquisitions, and whether the acquisition entrenches or extends a position of substantial market power.”
She also suggested the ACCC’s decision-making powers could be strengthened to bring them more into line with European practice.
Such a change, she said, would “ensure that the focus is not just on the incremental change arising from a merger but also the overall enhancement of dominant positions by large firms in the market.”
Noting the impact of technology on market structures, Cass-Gottlieb said that “a handful of large tech companies are playing increasingly important roles in our lives, as gatekeepers over how we interact with each other and businesses, and yet in many cases, these companies face only limited competitive constraint.”
Cass-Gottlieb was also critical of the processes for merger approval as it now stands, saying the “voluntary and enforcement-based” merger notification scheme that now applies is subject to being gamed by international companies.
“We are finding that businesses are pushing the boundaries of the informal regime”, she said.
“There is no requirement for merger parties to notify the ACCC of proposed mergers and acquisitions or to wait for clearance before they can complete.
“In instances where the ACCC considers a merger to be anti-competitive, and where the merger parties do not voluntarily abandon the transaction or offer remedies that address the competition concerns, the ACCC must take action in the Federal Court to seek orders to prevent or unwind the transaction.”
