Prohibition of acquisitions that would result in a substantial lessening of competition
50 Prohibition of acquisitions that would result in a substantial lessening of competition
A corporation must not directly or indirectly:
acquire shares in the capital of a body corporate; or
acquire any assets of a person;
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
The corporation will not be prevented from making the acquisition if the corporation is granted an authorisation for the acquisition under section 88.
A person must not directly or indirectly:
acquire shares in the capital of a corporation; or
acquire any assets of a corporation;
if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
The person will not be prevented from making the acquisition if the person is granted an authorisation for the acquisition under section 88.
For the purposes of this section, an 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.
Subsections 46(3) to (8) have effect for the purposes of this section as if:
a reference in those subsections (other than in paragraph 46(8)(b)) to section 46 included a reference to this section; and
a reference in those subsections to a market were a reference to a market (within the meaning of this section).
Subsections 46(3) to (8) contain matters relevant to working out whether a corporation has a substantial degree of power in a market.
To avoid doubt, subsection (3) does not affect the meaning of substantially lessening competition outside this section.
Where:
a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;
the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted an authorisation to acquire the shares or assets; and
the person applied for the grant of such an authorisation before the expiration of 14 days after the contract was entered into;
the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before:
the application for the authorisation is disposed of; or
the contract ceases to be subject to the condition;
whichever first happens.
For the purposes of subsection (4), an application for an authorisation is taken to be disposed of 14 days after the day the Tribunal makes a determination on the application.
Notified acquisitions
This section does not apply to a notified acquisition.
Definitions
In this section:
market means a market for goods or services in:
Australia; or
a State; or
a Territory; or
a region of Australia.
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