The ACCC has published updated Guidelines for authorisation of conduct (non-merger) to clarify expectations around interim authorisation requests and decisions.
Interim authorisation is a flexible tool the ACCC has to allow conduct to occur prior to the substantive assessment of an application for authorisation in certain circumstances. The matters that the ACCC takes into account in considering whether to grant interim authorisation include: whether the conduct has the potential to substantially lessen competition; the extent to which the relevant market will change if interim authorisation is granted; the urgency of the need for interim authorisation; the possible harm to the applicant if the request is denied; the possible harm to other parties if interim authorisation is granted or denied; any possible public benefits or detriments that the ACCC can assess at the time of considering the interim request.
In order for the ACCC to be satisfied that it is appropriate to grant interim authorisation, the proposed conduct for interim authorisation requests must be clearly articulated and may be different to (e.g. a subset of) the conduct for which final authorisation is sought. Given any interim authorisation that is granted provides exemption from competition laws for specified conduct while the ACCC assesses the application for authorisation, all requests for interim authorisation must contain compelling reasons in support of why interim authorisation is required in the circumstances.
The updated guidelines also clarify that the ACCC will determine the timing of any decision on interim authorisation based on the circumstances of the application and request for interim authorisation. Interim authorisation may be granted very quickly in exceptional circumstances where warranted. However, in many circumstances, the ACCC will consider it more appropriate to consider a request for interim authorisation as part of the draft determination. The late preparation and lodgement of an application for authorisation, or meeting desired external marketing timeframes for proposed conduct, are unlikely to be sufficient reasons on their own for a request for interim authorisation.
The guidelines also include updates to clarify guidance around applications involving a national emergency declaration.
The ACCC recognises that interim authorisation can play a role in the need for urgent action, including on sustainability collaboration. The ACCC is currently considering submissions made on its draft 'Sustainability collaborations and Australian competition law' guide. The ACCC will take these into account in finalising the sustainability collaboration guide, including in relation to interim authorisation and the process for considering authorisation applications.
The Guidelines for authorisation of conduct (non-merger) provide guidance on the authorisation process for non-merger conduct to help businesses and their advisers lodge applications for authorisation, and interested parties to provide submissions in response to applications.
