The Full Court of the Federal Court has today set aside the decision of the Australian Competition Tribunal to grant authorisation for Tabcorp Holdings Limited to acquire Tatts Group Limited, referring the decision back to the Tribunal for further consideration.
“The ACCC is pleased that the Full Federal Court has set aside the decision, however the reasons for the decision are not yet public,” ACCC Chairman Rod Sims said.
“The ACCC’s application for review was based on three grounds. The first was the Tribunal’s reasoning that it could only find that the proposed acquisition was likely to result in a detriment to be considered in the net benefit test if it concluded that there would be a substantial lessening of competition.”
“The second ground was that the Tribunal made an error when it failed to compare the likely future state of competition both with and without the proposed acquisition in order to assess competitive detriment,” Mr Sims said.
“Finally, the ACCC argued that the Tribunal had made an error in failing to assign less weight to benefits which would be retained by Tabcorp, its shareholders and the racing industry, and not shared with consumers more broadly,” Mr Sims said.
Background
Tabcorp sought informal merger clearance and the ACCC commenced a review of the proposed acquisition in November 2016.
In March 2017, shortly after the ACCC had published a statement of issues regarding the proposed acquisition, Tabcorp withdrew its application for informal clearance and lodged an application for authorisation with the Australian Competition Tribunal.
In June 2017, the Australian Competition Tribunal granted merger authorisation for Tabcorp to acquire Tatts.
The Australian Competition and Consumer Commission applied to the Federal Court for judicial review of the Australian Competition Tribunal’s decision on 10 July 2017. Crownbet Limited filed a separate application for judicial review. The Full Court of the Federal Court heard the applications for judicial review by both the ACCC and Crownbet on 28 and 29 August 2017.