Inquiry into the Trade Practices (
Creeping Acquisitions) Amendment Bill 2007 [2008] Senate Stading Committee on Economics
One way in which the major supermarkets increase their market share is through «
creeping acquisitions»; a series of takeovers, each of which is individually too small to «substantially lessen competition» but which cumulatively may do so.
Competition issues in Qld (Competitive neutrality, electricity, supermarket dominance, insurance, tender process, hospital licencing laws»), improving environment for small business (unfair contract provisions, MMP and
creeping acquisitions), improving small business competitiveness.
It recommended that provisions be introduced into the CC Act to ensure the ACCC has the powers to prevent
creeping acquisitions that substantially lessen competition in a market.
In September 2008, the Government released a discussion paper seeking views from interested parties in relation to the best way to address
creeping acquisitions.
The ACCC accordingly maintains its support for the introduction of legislation that would better allow it to address
creeping acquisitions more generally.»
4.28 The then government did not support the Committee's recommended amendments, noting the Dawson Review's findings that the CC Act is adequate to address
creeping acquisitions.
Creeping acquisitions are those acquisitions which in and of themselves do not lessen competition but, taken as a collective, may have a greater effect over time.
4.35 While noting that
creeping acquisitions are not a current concern in the grocery retailing industry, the Grocery Inquiry cited the supermarket industry as one where
creeping acquisitions could potentially become a concern, due to particular structural features of the market.
4.31 The ACCC Chairman, Graeme Samuel, noted that the Charter will benefit consumers by promoting competition in the supermarket sector, particularly by helping to address concerns about
creeping acquisitions.
However, the ACCC stated that section 50 is unlikely to address all concerns in relation to
creeping acquisitions and it maintained its support for the introduction of a general
creeping acquisitions law to address potential shortcomings of section 50.
A Senate Inquiry into the Bill found that concerns about
creeping acquisitions are valid and the provisions in section 50 are insufficient to address the problem adequately.
... the supermarket industry, because of the particular structural features of the market, is one where
creeping acquisitions are a potential area of concern.
Government consultation 4.36 As part of its preliminary response to the Grocery Inquiry and in line with its 2007 election commitment, the Government committed to respond appropriately and carefully to concerns about
creeping acquisitions.
In its report, the Committee considered that
creeping acquisitions must at some point result in a very concentrated market and that section 50 does not effectively address this issue.
Government's 2007 election commitment 4.33 In the context of ongoing community concerns about
creeping acquisitions, reflecting that the regulatory responses to date had not adequately addressed the problem, the then - Opposition committed in the lead - up to the 2007 election, to introduce a law in relation to
creeping acquisitions.
While
creeping acquisitions are not currently an issue in the grocery industry, they are a broad issue that can affect many industries.
As a result, issues have arisen as to how section 50 of the Competition and Consumer Act is applied to these markets, particularly those affected by
creeping acquisitions.
This Act changed the reference in s 50 (1) from «a market» to «any market» (purporting to remove any doubt that a merger will be prohibited if it substantially lessens competition in a market other than the market in which the merging parties compete; this had never been a problem in the past) and removing the word «substantial» from the definition of market in subsection 50 (6)(this was theoretically directed at
creeping acquisitions, but has little to do with concept of creeping acquisition discussed in this report)
The Government is concerned to ensure that there are appropriate mechanisms in place to preserve adequate competition in this and other sectors where
creeping acquisitions might be a problem.
Senate Inquiry into the Effectiveness of the Trade Practices Act 1974 in Protecting Small Business 4.26 Submissions to the 2004 Senate Inquiry (The Effectiveness of the Trade Practices Act 1974 in Protecting Small Business) highlighted particular concerns about
creeping acquisitions in the retail grocery and the retail liquor sectors.
Little came of these discussions with a very modest change to the law, purporting to relate to
creeping acquisitions, introduced by the Competition and Consumer Legislation Amendment Act 2011.
4.25 The Dawson Review concluded that concentrated markets can be highly competitive and that there was no need to amend section 50 of the CC Act to address
creeping acquisitions.
It found that although such acquisitions do not appear to be a significant current concern in the supermarket retail sector, particular structural features of the supermarket industry mean that
creeping acquisitions are a potential concern.
Charter for the Acquisition of Independent Supermarkets 4.30 The ACCC introduced a voluntary Charter for the Acquisition of Independent Supermarkets in July 2005, in response to community unease about
creeping acquisitions in the supermarket industry.
This has prompted and item in today's Australian Financial Review by Sue Mitchell - «Woolies, ACCC at loggerheads on deals» (at p 3), in which she refers to the «tense» relations between the ACCC and major supermarkets «hehead of a crackdown on
creeping acquisitions».
The Committee considers that provisions should be introduced into the Act to ensure that the ACCC has powers to prevent
creeping acquisitions which substantially lessen competition in a market.
That is called
creeping acquisition.