51ABZHSubstantial lessening of competition

51ABZH Substantial lessening of competition

(1) This section applies to the Commission considering, for the purposes of this Part, whether an acquisition, if put into effect, would or could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market.

Note: For lessening of competition, see section 4G.

(2) The Commission must have regard to all relevant matters.

(3) Without limiting subsection (2), the Commission may have regard to any of the following matters:

(a) the contract, arrangement or understanding, or proposed contract, arrangement or understanding, pursuant to which the acquisition is to take place;

(b) the commercial relationships of the parties to the acquisition (and, if any of the parties is a body corporate, of a body corporate that is related to that party).

(4) For the purposes of this Part, the acquisition may have the effect or be likely to have the effect of substantially lessening competition in a market if the acquisition would, in all the circumstances, have the effect, or be likely to have the effect, of creating, strengthening or entrenching a substantial degree of power in the market.

(5) Subsections 46(3) to (8) have effect for the purposes of this Part as if:

(a) a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this Part; and

(b) a reference in those subsections to a market were a reference to a market (within the meaning of this Part).

Note: Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.

Cumulative effects

(6) The Commission may treat the effect of the acquisition as being the combined effect of:

(a) the acquisition (the current acquisition); and

(b) any one or more acquisitions:

(i) that are put into effect during the 3 years ending on the effective notification date of the notification of the current acquisition; and

(ii) the parties to which include any party to the current acquisition or, if a party to the current acquisition is a body corporate, include a body corporate that is related to that party; and

(iii) the targets of which are involved (directly or indirectly) in the supply or acquisition of the same goods or services or goods or services that are substitutable for, or otherwise competitive with, each other (disregarding any geographical factors or limitations).

(7) Subsection (6) does not limit the circumstances in which an acquisition would or could, if put in effect, have the effect, or be likely to have the effect, of substantially lessening competition for the purposes of this Part.