The long-awaited Competition and Consumer Protection Bill was finally published on 31 March 2014. Key reforms include the merger of the Competition Authority and the National Consumer Agency along with extended timelines for merger review and a fundamental restructuring of the media merger regime. The Bill proposes new enforcement powers and whistle-blower protections as well as a new procedure for handling disputes regarding legal privilege and a new power to issue 'Grocery Code' regulations.
Merger of the Competition Authority and the National Consumer Agency
The existing competition and consumer agencies will merge to create the Competition and Consumer Protection Commission. The CCPC's executive will comprise a Chairperson and a maximum of six members.
The statutory functions of the CCPC will be to promote competition and consumer welfare, in particular through enforcement activities. In terms of prioritisation of its competition and consumer mandates it may be necessary for the CCPC to allocate the greater part of its resources to the areas where its work load is uncontrollable (eg, merger control) placing a constraint on its ability to undertake pro-active enforcement activities, market studies, or consumer information campaigns.
Changes to Merger Control Regime
The most notable changes relate to an extension of time periods for merger review.
Other notable changes are as follows:
The CCPC can issue a Request for Information to 'stop the clock' during Phase II. The current legislation provides for the issue of a RFI to 'stop the clock' during Phase I only. Clarification that an acquisition by a financial institution is notifiable where it is intended to facilitate an onward sale to an ultimate buyer that has assumed "the major part of the economic risks" of the overall deal. A merger filing will be invalid and a related merger determination void where the CCPC is of the opinion that "full information" has not been provided by the merging parties. This increases risk for merging parties, as the current test for invalidity / voidness relates to information that is "false or misleading in a material respect". Media Mergers
The Bill radically amends the current media merger regime. Key changes include:
Changes to the jurisdictional test for media mergers. First, the Bill confirms that the statutory concept of 'carries on business' has the same meaning in the context of standard mergers and media mergers ie, (a) having a physical...