The Jury Is Out: An Assessment of Proposed Reforms to Australia’s Merger Control Regime for Addressing Competitive Harm in the (Digital) Economy

Recently, competition authorities globally have been advocating for law reform to enhance their enforcement powers in relation to so called “killer acquisitions.” In July 2019, the ACCC released its Final Digital Platform Inquiry Report. As part of this inquiry, the ACCC looked at whether Australia’s merger control regime was fit-for-purpose to address “killer acquisitions” through examining acquisitions by Google and Facebook, and economies of scope created via control of data sets. The Report concluded that these were two factors that had contributed to the dominant market positions of Google and Facebook in Australia and that law reform was needed. This paper examines the substantive and procedural proposals put forward by the ACCC in the Report. This paper will also review the extent to which such proposals would materially change Australia’s current merger control framework, and whether they would be likely to facilitate more effective regulation of “killer acquisitions.”

By Mark Grime & Dave Poddar¹

I. INTRODUCTION

In recent times, competition authorities globally have been strongly advocating for law reform to enhance their enforcement powers in relation to so called “killer acquisitions.” Killer acquisitions are said to arise where a dominant or incumbent firm seeks to acquire a start-up or potential competitor with the ultimate purpose (or effect) of eliminating future or potential competition. Much of the