CC 1 (2011) Limited - s.87B undertaking

On 18 December 2015, the ACCC announced it had accepted an undertaking from CC 1 (2011) Limited, Max-Inf (Ningbo) Baby Product Co., Ltd (Max-Inf), and Britax Childcare Pty Ltd (together, the parties) in relation to Nordic Capital Fund VII’s proposed acquisition of a controlling interest in Max-Inf Holdings Limited (the proposed acquisition).

Max-Inf is a Chinese manufacturer of child restraint systems.  Max-Inf currently supplies products to Infa-Secure Pty Ltd which is one of the three main suppliers of these products in Australia. Britax is a close competitor of Infa-Secure.

The ACCC considered that in the absence of the section 87B undertaking, the proposed acquisition was likely to raise competition concerns in the market for the wholesale supply of child restraint systems in Australia.

By acquiring an interest in the supplier to one of its key competitors in Australia, concerns were raised that the proposed acquisition would be likely to provide Nordic and Max-Inf with the ability and incentive to foreclose supply of child restraint systems to Infa-Secure. While it is possible to source supply from alternative suppliers of child restraint systems, the ACCC was aware that the transition to a new supplier can take some time to ensure the security and quality of supply necessary to compete in Australia.

The section 87B undertaking requires the parties to continue to supply Infa-Secure Pty Ltd with child restraint systems while it establishes alternative supply arrangements.

The objective of the undertaking is to address the ACCC’s competition concerns which would otherwise arise as a consequence of the proposed acquisition. The undertaking aims to achieve this objective by:

1. placing an obligation on Max-Inf to comply with the transitional supply agreement it agreed with Infa-Secure
2. placing obligations on the parties not to do anything to hinder or prevent Infa-Secure from sourcing or supplying child restraint systems products in Australia
3. placing obligations on CC 1 and Max-Inf to ensure that Infa-Secure’s confidential information is not provided to or accessed by Britax (or any Australian Britax business)
4. placing an obligation on Britax not to receive, access, or seek to access from CC 1, Max-Inf or any of their related bodies corporate, any of Infa-Secure’s confidential information, and not to use any such information that it receives
5. placing an obligation on CC 1 to procure that Max-Inf complies with the transitional supply agreement and that Max-Inf and Britax comply with the undertaking.

On 18 December 2019, the parties provided an executed withdrawal instrument to the ACCC requesting the undertaking be withdrawn because the transitional supply agreement between Max-Inf and Infa-Secure had expired. On 9 January 2020, the ACCC consented to the parties’ withdrawal request and the undertaking was withdrawn.