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About remedies
Remedies can be offered by a business to address concerns that could result from an acquisition, so that it may be approved. A remedy is often in the form of a commitment or undertaking.
Businesses may decide to offer a remedy if they think it will address the competition concerns raised by their acquisition. Where a public benefit application has been made, remedies may also address concerns about the likelihood of a net public benefit.
The ÌÇÐÄÔ´´ considers the nature, form and scope of conditions when deciding whether to accept or impose a remedy.
We encourage businesses to proactively consider whether offering a remedy would address the concerns that may be raised by the acquisition, rather than wait for us to raise concerns.
There are specific timeframes within which businesses can offer a remedy.
Offering a remedy in phase 1 that addresses competition concerns can, in some cases, mean that the notification may not need to be subject to a more in-depth competition assessment in phase 2.
Types of remedies
Remedies may be structural or behavioural
Remedies are generally either:
- structural – changing the structure of a business and/or a market, or
- behavioural – requiring a business to operate in a certain way.
The ÌÇÐÄÔ´´ has a strong preference for structural remedies.
The most common type of structural remedy is divestiture. It involves a company selling part or all of a business to a purchaser approved by the ÌÇÐÄÔ´´. This can address competition concerns and enable the acquisition to be approved.
ÌÇÐÄÔ´´â€™s power to include conditions
The ÌÇÐÄÔ´´ may approve an acquisition with conditions. We may determine the nature, form and scope of conditions.
These conditions may reflect remedies that the parties have offered to the ÌÇÐÄÔ´´. It may also be a remedy that we consider appropriate, following consultation with the parties to the acquisition and any relevant third parties.
Timeframes to offer remedies
The timeframes within which businesses can offer a remedy depend on the phase of the review process.
The ÌÇÐÄÔ´´ may extend the timeline by 15 business days when a remedy is offered within certain timeframes.
Remedies cannot be proposed after certain times in each phase. The table outlines these windows and points, which can be adjusted by other extensions.
| Phase | Timeframes for remedy extensions | When remedies cannot be offered |
|---|---|---|
| Phase 1 | Between the effective notification date and business day 20 | After business day 20 |
| Phase 2 | Between business day 50 and 60 | After business day 60 |
| Public benefit phase | Between effective application date and business day 35 | After business day 35 |
Tools to assist with remedies
Standard divestiture terms
If you intend to offer a divestiture remedy, you can use the standard divestiture terms.
These standard terms address some of the risks that commonly arise in divestiture undertakings.
They are not a comprehensive statement of all the matters that need to be addressed. Many of the terms, for example, around auditing and monitoring, are also applicable to other types of remedies.
Standard divestiture terms ( DOCX 165.43 KB | PDF 442.46 KB )
Matters to address in your submission in support of a remedy
To assist you in offering a remedy, we have prepared guidance on the matters to address in your detailed supporting submission.
This information is relevant to how the offer would address competition concerns, be implemented, and be effectively monitored.
It is not mandatory to provide this information, but it may assist us to consider the offer as quickly as possible.
We encourage you to use the information contained in the guidance below to prepare the submission.
Optional information supporting a remedy offer ( DOCX 110.21 KB | PDF 146.36 KB )
Offer a remedy
You can offer a commitment or undertaking:
- by including the offer in your notification, or
- after notifying by emailing your offer to the ÌÇÐÄÔ´´ team allocated to your acquisition.
Please also provide a copy to mergersru@accc.gov.au. If you send your offer by email please title your email: 'Offer of commitment or undertaking under new regime – [insert acquisition name]'.
The ÌÇÐÄÔ´´ will acknowledge receipt of offers made over email.