Competition Analysis of Bank Mergers in Australia Garry K Goddard+ and Greg Walker
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Goddard and Walker Competition Analysis of Bank Mergers in Australia Garry K Goddard+ and Greg Walker# Abstract This paper reviews the competition analysis of bank mergers in Australia, a regulatory task that is undertaken by the Australian Competition and Consumer Commission (ACCC) under the Trade Practices Act 1974 (Cth), s 50. As a preliminary step, some background is provided on ACCC merger assessment procedure. This is followed by a discussion of the three most signifi cant bank merger investigations undertaken by the ACCC, including the ACCC’s most recent and comprehensive investigation into the Commonwealth Bank of Australia’s acquisition of Colonial Limited. Five major themes running through these investigations are then identifi ed and discussed. The fi ve themes include: the use of market share thresholds and analysis of coordinated conduct by the ACCC; market defi nitions, especially the impact of electronic banking and convergence on defi nitions; contestability and entry barriers in retail banking; the importance of regional banks in promoting competition; and the nature of competition remedies accepted by the ACCC. Some brief observations on the implications of all of this for future bank mergers are then presented by way of conclusion. 1. Introduction government and implemented in full over the past fi ve years; In Australia, few, if any, corporate mergers or acquisitions the policy ban on mergers between the four major banks was generate greater public interest and concern than those between retained by the Treasurer and remains in force to the present major fi nancial institutions, and especially those involving day. large retail banks. The extent of public sensitivity has been In commenting on this policy impasse, Harper has such that, since May 1990, mergers between the four largest suggested that: “The ACCC and APRA are more than adequate banks have been explicitly prevented by public policy stances to the task of assessing these likely effects and imposing adopted by successive Federal Governments, fi rst by the “six conditions, as necessary, on merger proposals.”4 Other recent pillars” policy of the former Labor Government and, since papers have expressed negative views on the adequacy and April 1997, by the so-called “four pillars” policy of the accuracy of ACCC determinations in previous bank merger Coalition. It is interesting, given the high profi le of bank cases. Rose has criticised the analysis and remedies adopted mergers as an area of public policy debate in this country, that by the ACCC in the 1997 Westpac takeover of the Bank of there is not an extensive academic literature on the law and Melbourne.5 Valentine and Ford have taken a contrary view economics of assessing the competition (antitrust) effects of to the ACCC on the competitiveness of the Australian banking bank mergers in Australia.1 In the United States, by comparison, industry. They argue that the level of competition is greater there is a vast literature on the antitrust implications of bank than that accepted by the ACCC and that ultimately, removal mergers.2 While the US literature can provide some useful of the four pillars policy will be a political rather than an analytical insights, the very different nature of the two banking economic decision.6 systems and of the regulatory procedures adopted limits the practical value of much of this material in the Australian The ACCC (and its predecessor, the Trade Practices context. Commission) have assessed a number of bank mergers over the past decade. However, three of these merger cases stand out The importance of this topic is highlighted by the debate as being most signifi cant in providing an insight into the major on bank mergers policy, which, if anything, has intensifi ed issues and problems in assessing bank mergers and pursuing since 1997 when the Financial System Inquiry (FSI), or, competition remedies. These three cases are: Westpac Banking as it became known, the Wallis Inquiry into the Australian Corporation’s (WBC) 1995 acquisition of Challenge Bank fi nancial system, reported to government on this issue. Wallis in Western Australia, WBC’s 1997 acquisition of the Bank recommended that the six pillars policy should be abolished of Melbourne Limited (BML), and the Commonwealth Bank and bank merger proposals should be left to be assessed of Australia’s (CBA) 2000 acquisition of Colonial Limited by the appropriate regulatory authorities.3 For bank mergers (Colonial). In addition to these three cases, the ACCC also the appropriate authorities are the Australian Prudential examined the 1995 Advance Bank takeover of the Bank of Regulation Authority (APRA) for prudential effects and the South Australia and the 1996 St George Bank takeover of the Australian Competition and Consumer Commission’s (ACCC) Advance Bank. However, neither of these two cases proved for competition effects. The FSI recommendations on mergers particularly problematic from a competition perspective, and policy were amongst the very few not to be adopted by so their illustrative value is more limited. 6 Journal of Law and Financial Mangement - Volume 1, No. 1 Competition Analysis of Bank Mergers in Australia This paper discusses the ACCC approach to assessing the within which an assessment of the social desirability of competitive impact of bank mergers and acquisitions in recent particular merger transactions can be made using economic years, and the competition remedies accepted by the ACCC concepts and tools. The economic analysis sets out to ascertain in the more problematic cases. The paper is focussed rather the degree of market power that a merged fi rm would or could narrowly on the above topic and does not aim to address enjoy post-merger and to assess whether the exercise of that wider issues, such as the recent review of credit card schemes market power is likely to lead to such economic detriment to by the Reserve Bank of Australia or the current (Dawson consumers and other fi rms in the economy that the proposed Committee) review of Australia’s competition laws and their transaction should not be allowed to proceed. In administering administration. The aims of the paper are essentially twofold. s 50 of the TPA the ACCC has adopted a fi ve-stage process to First, to provide a comprehensive summary of recent bank assess market power, consisting of the following elements of merger investigations in Australia in order to illustrate how analysis: the approach of the ACCC has evolved over time. Secondly, 1. defi nition of the relevant markets impacted by the to comment on the appropriateness of the ACCC approach in merger, particularly in terms of their product and these specifi c cases and the views of its critics. Both authors geographic dimensions; were involved with the ACCC assessment of the CBA merger with Colonial and hence the arguments presented in ACCC 2. calculation of the post-merger market shares of the publications on that merger refl ect to a considerable degree combined entity in each of the relevant markets, and our private views on that merger. However, as noted in the comparison of those market share numbers with the disclaimer, we remain solely responsible for the views in this concentration threshold levels; paper.7 3. assessment of the extent of import competition; The paper proceeds by providing an outline of the 4. assessment of the height of barriers to entry; and merger review process employed by the ACCC (section 2), an fi nally exposition and analysis of the WBC / Challenge and WBC / BML cases (section 3), and the recent CBA / Colonial 5. consideration of a range of other factors, which may case (section 4). Major themes and critical issues running be relevant to competition in the markets impacted by through all these bank merger investigations, including: the the merger.10 use of market share thresholds and analysis of coordinated In considering market defi nition, the ACCC aims to defi ne conduct; market defi nitions, especially the impact of electronic all the product markets likely to be impacted by a proposed banking and convergence on defi nitions; contestability and transaction. Put simply, the aim of the exercise is to identify entry barriers in retail banking; the importance of regional those products or groups of closely related products over which banks in promoting competition; and the nature of competition the merged entity may be able to exercise market power post- remedies accepted by the ACCC are then discussed (section 5) merger. For each product market, all sources and potential before conclusions are presented (section 6). sources of close substitutes for the merged fi rm’s products are 2. Merger Review Process identifi ed and included, and then an appropriate geographic aspect for that product market is ascertained. In theory, product In Australia, an established protocol exists for coordinating substitution can be estimated by calculating (cross-price) those regulatory agencies that play a central role in assessing demand and supply elasticities between various products that bank mergers. Specifi cally, the ACCC analyses the competition are potential substitutes. In practice, however, the data available effects of the proposed merger. APRA examines the prudential to the ACCC may preclude such precise determination, and it aspects of the merger. Both agencies undertake concurrent may prove necessary to use a wider range of information (both assessments and then report their fi ndings to the Federal qualitative and quantitative) about consumer and producer Treasurer, who