ACCC appeals decision on Tabcorp-Tatts merger

The proposed Tabcorp-Tatts Group merger is set to face a new set of hurdles after the ACCC on Monday announced it is seeking a judicial review of its recent approval.

The watchdog on Monday said it has applied for a judicial review of the recent Australian Competition Tribunal (ACT)’s decision to approve the Tabcorp-Tatts merger, alleging that the tribunal made three “reviewable errors” in its decision.

“The Tribunal’s reasons for its decision found that the proposed acquisition was likely to result in substantial public benefits and no material detriment,” said the ACCC in a statement.

“The ACCC is alleging the Tribunal made three reviewable errors. It is therefore seeking clarification of these three points of law which are central to the Tribunal’s assessment of Tabcorp’s proposed acquisition of Tatts,” added ACCC chairman Rod Sims.

One of the errors relates to the way the tribunal would only recognize a “public detriment” if it observed a “substantial” lessening of competition.

The ACCC argued that any lessening of competition, whether substantial or not, should be taken into account.

The ACCC is also seeking a review of the Tribunal’s failure to compare the future state of competition both with and without the proposed merger – arguing that the “future with and without” comparison is… fundamental to the assessment of likely detriment in all competition cases.

Finally the ACCC is seeking a review on the grounds that Tribunal made 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.

“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,” said the ACCC.

The ACCC added it is also seeking an order that this matter be dealt with on an expedited timetable.