Document Type

Article

Publication Date

2013

Keywords

QIW Retailers Ltd. v. Davids Holdings Pty Ltd., Australian Competition and Consumer Commission v. Metcash Trading Limited, Mergers and acquisitions

Disciplines

Antitrust and Trade Regulation

Abstract

In 1994, the Full Federal Court upheld the decision of the trial judge to prevent the acquisition of QIW by Davids, on the grounds that, Davids would become the only supplier of groceries to independent retailers in the geographic market. While the independent retailers faced significant competition in the downstream (retail) business from the integrated retail chains, the Court found that such competition would not be sufficient to prevent the exercise of monopoly power in the upstream (wholesale) business.

In 2011, the Full Federal Court upheld the decision of the trial judge not to prevent the acquisition by Metcash of Franklins. The acquisition had been opposed by the ACCC on the grounds that it would leave Metcash as effectively the only wholesale supplier of packaged groceries to independent retailers in New South Wales. The Court rejected the Commission’s claim, finding that the merged firm would not be able to exercise market power due to the constraining presence downstream of the integrated retail chains.

Two cases with apparently similar facts. What explains the different outcomes? In this article, we try to identify a critical analytical difference in the way that the cases were presented to the Court and will suggest that this difference may have had a significant influence on the outcomes.

Publication Citation

Published in: Competition & Consumer Law Journal, vol. 20, no. 3 (2013).

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