Caltex Australia Petroleum Pty Ltd - s.87B undertaking

On 22 May 2014, the ACCC announced that it had accepted an undertaking (the Undertaking) from Caltex Australia Petroleum Pty Ltd (Caltex) in relation to its proposed acquisition of the fuel division of Scotts Group (Scotts)(the Proposed Acquisition).

The ACCC considered that, in the absence of this Undertaking, the Proposed Acquisition would result in competition concerns in the local markets for the retail supply of petrol in Nhill, Victoria and Mount Gambier, South Australia.

In the absence of the Undertaking, Caltex would have controlled the majority of sites in Mount Gambier and, importantly, these would have been located on key transport routes into and out of Mount Gambier. In Nhill, Caltex would have controlled two of the three retail sites in the town. In both towns, the ACCC concluded that the remaining independent retail sites would not have provided a strong competitive constraint on Caltex.

The objective of the Undertaking is to address the ACCC’s competition concerns, which would otherwise arise as a consequence of the Proposed Acquisition. This Undertaking addresses the ACCC’s competition concerns in the Local Markets by:

1. in relation to the ACCC’s competition concerns regarding Caltex’s acquisitions of Scotts owned retail sites in Mt Gambier, requiring Caltex to divest three retail sites to an Approved Purchaser;
2. in relation to the ACCC’s competition concerns regarding Caltex’s acquisition of a Scotts operated retail site in Nhill, requiring Caltex to divest one retail site to an Approved Purchaser;
3. ensuring the Approved Purchaser has the necessary assets to operate the Divestiture Businesses effectively;
4. ensuring the provision of any Technical Assistance by Caltex required by the Approved Purchasers to operate the Divestiture Businesses effectively;
5. preserving the Divestiture Businesses prior to divestiture; and
6. providing for the effective oversight of Caltex's compliance with this Undertaking.

As part of accepting the Undertaking the ACCC approved Commercial Street Pty Ltd, 34 Bay Road Pty Ltd, Jubilee Highway Pty Ltd, and AM/PM Always Pty Ltd (together, Agostino), as the Approved Purchaser of the Divestiture Businesses.