Tabcorp-Tatts merger not quite home and dry

The Australian Competition and Consumer Commission (ACCC) is appealing the Australian Competitions Tribunal (ACT) approval of the Tabcorp-Tatts merger through the Federal Court system.

The ACCC has filed for a judicial review of the ACT decision, in which TabCorp and Tatts Groups were granted authorisation to merge (see previous reports), believing the ACT made three reviewable legal errors in its decision which were central to its assessment of the merger.

“We are seeking judicial review because we believe these legal principles are fundamental not only to the Tabcorp decision but to all future merger and non-merger authorisation assessments,” Rod Sims, Chairman of the ACCC, said.

Our readers will recall TabCorp applied to the ACCC for an informal merger clearance late last year, however, withdrew its application after a statement of issues was published and submitted its application directly to the ACT for a decision.

The three grounds identified by ACCC for review cover the ACT’s opinion that there would not be a substantial lessening of competition, the Tribunal’s failure to compare the likely future state of competition both with and without the proposed acquisition in its consideration, and an error in the weight it gave to benefits, such as cost savings and revenue synergies, which would be retained by Tabcorp and not shared with consumers more broadly.

In its submission to the Federal Court, the ACCC is also seeking an order that the matter be dealt with on an expedited timetable.