In Australian Competition and Consumer Commission v Metcash Trading Limited [2011] FCAFC 151 the Full Federal Court dismissed the ACCC’s appeal against the trial judge’s decision that the proposed acquisition by Metcash of the Franklins supermarket business was not likely to result in a substantial lessening of competition in the wholesale supply of packaged groceries to independent retailers in NSW and the ACT.

The Full Federal Court rejected the ACCC’s “counterfactual” analysis, or comparison of the likely future state of competition both with and without the acquisition in determining whether a substantial lessening of competition was likely.

The ACCC has decided that it will not seek special leave to appeal to the High Court (see here).

But it appears that the ACCC will continue to assess the likely competitive effect of an acquisition on the basis of a “real chance” test.