The Australian Competition and Consumer Commission (ACCC) has formally ruled out appealing the Australian Competition Tribunal’s decision to greenlight ANZ’s acquisition of Suncorp.
Last month, the tribunal quashed the ACCC’s August 2023 decision to block the takeover due to concerns it would “further entrench an oligopoly market structure” within the home loan sector.
Delivering the judgement, Justice John Halley, together with Dr Jill Walker and Diana Eilert, determined the proposed acquisition would “not likely have the effect of lessening competition in the home loans market”.
The tribunal also concluded the takeover would “not have a meaningful impact on the major banks coordination”, particularly as Suncorp is not a “strong competitor” in the home loan market.
They said the proposed acquisition would “constitute real and tangible benefits to the public” and represent a “saving of real resources”.
“The tribunal is satisfied that the proposed acquisition represents a net public benefit because any detriments arising from any reduction in competition are unlikely to be sufficiently certain and significant,” the members determined.
Justice Halley added they were satisfied ANZ will remain constrained by competitors like NAB and Rabobank.
In a statement on 5 March, the ACCC said it does not propose to seek review of the tribunal’s decision.
“While the ACCC reached a different conclusion to the tribunal, in complex cases that require the assessment of significant volumes of information and data, different decision makers can reasonably arrive at different conclusions,” explained Gina Cass-Gottlieb, chair of the ACCC.
According to Cass-Gottlieb, the availability of review of the ACCC’s merger authorisation decisions serves as an “important check and balance” for the administrative decision-making process.
“The ACCC’s role in the review process is to assist the tribunal. In reaching its decision, the tribunal largely adopted the ACCC’s legal and economic framework for assessing the merger and its impacts, although ultimately formed a different view about the significance of the proposed acquisition on competition,” she said.
Additionally, the tribunal shared the ACCC’s “fundamental concerns” that the national home loans market has features which make it currently conducive to coordination, Cass-Gottlieb added.
“The tribunal also found that many of the public benefits claimed by ANZ and Suncorp were either not public benefits or were not specific to the proposed acquisition,” she said.
The ACCC chairperson described the banking market as “critical” for consumers and businesses, highlighting that there have remained “the same four banks with dominant market shares” for many decades.
“For these reasons, the ACCC will continue to closely scrutinise these markets,” she confirmed.
Previously, bank competitor Bendigo and Adelaide Bank had voiced disappointment in its response to the tribunal’s decision, stating the proposed merger “will lead to a lessening of competition”, leaving customers and communities worse off.
“Bendigo and Adelaide Bank is proud to be an independent regional bank. We remain focused on our strategy and our purpose of feeding into the prosperity of our customers and their communities, not off them,” it stated.
The bank had previously opposed the application, submitting the takeover would consolidate ANZ’s market position and structural advantages it has as a major bank, “without engaging in competition, to the substantial detriment of competition” in the home loans markets.
However, the tribunal has rejected the “coordinated effort” of both Bendigo and the ACCC to have the acquisition opposed, ruling instead any market increase would not have a meaningful impact on the degree of likelihood of the major banks engaging in successful coordination.
