77EOrders relating to acquisitions that were not notified even though they were required to be

77E Orders relating to acquisitions that were not notified even though they were required to be

Order declaring an acquisition to be void

(1) The Federal Court must, on the application of the Commission, make an order declaring that an acquisition is, and is taken always to have been, void if the Court is satisfied that the acquisition:

(a) is stayed because of subsection 51ABE(2); and

(b) is put into effect;

unless the Court believes it is undesirable to make the order.

Note: Subsection 51ABE(2) applies if the acquisition is required to be notified, but is not a notified acquisition.

Other orders such as divestiture orders

(2) The Federal Court may, on the application of the Commission, make such orders (other than an order described in subsection (1)) as the Court believes are desirable to deal with an acquisition that the Court is satisfied:

(a) is stayed because of subsection 51ABE(2); and

(b) is put into effect.

Example: An order for the divestiture of shares or assets.

Note: Subsection 51ABE(2) applies if the acquisition is required to be notified, but is not a notified acquisition.

Orders giving effect to, or dealing with the consequences of, a voiding order

(3) The Federal Court may, on the application of the Commission or any other person, make such orders as the Court believes are desirable to give effect to, or to deal with the consequences of, an order made under subsection (1) about an acquisition.

Timing for applying for orders

(4) An application under subsection (1), (2) or (3) must be made no later than 6 years after the acquisition was put into effect.

Matters to which the Court must not have regard

(5) In determining whether to make an order under subsection (1), (2) or (3), the Court must not have regard to any of the following:

(a) whether the acquisition would or could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market;

(b) whether the acquisition would or could, in all the circumstances, result, or be likely to result, in a benefit to the public;

(c) whether a benefit described in paragraph (b) would or could, in all the circumstances, outweigh the detriment to the public that would result, or be likely to result, from the acquisition.

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

Commission may intervene in proceedings

(6) If an application is made under subsection (3) by a person other than the Commission:

(a) the Court must give a copy of the application to the Commission; and