The Australian Competition and Consumer Commission (ACCC) has received an application under section 88(1) of the Competition and Consumer Act 2010 (the Act) for authorisation from Brookfield LP (Eos Aggregator (Bermuda) LP) (Brookfield LP) and MidOcean Reef Bidco Pty Ltd (MidOcean), collectively the Applicants. The Applicants request authorisation of their proposed acquisition of Origin Energy Limited (Origin), comprising two interdependent acquisitions (together, the Proposed Acquisition):
1. Scheme Acquisition: It is proposed that MidOcean will acquire 100% of the ordinary shares in Origin pursuant to a scheme of arrangement under the Corporations Act 2001 (Cth). The Scheme Acquisition is subject to various conditions precedent including FIRB approval, ACCC authorisation, Origin shareholder approval and Court approval.
2. On-Sale Acquisition: Conditional upon the Scheme Acquisition, MidOcean will procure that Origin’s business is divided into two separate businesses:
Origin's Energy Markets business: comprising Origin's energy retailing business, electricity generating assets, energy wholesale and trading business, development assets relating to energy production and storage, its investment in Octopus Energy and its LPG business and domestic gas trading business. Origin's Energy Markets businesses will be acquired by Brookfield LP; and
Origin’s Integrated Gas business: comprising Origin’s upstream gas interests and shareholding in Australia Pacific LNG (APLNG) will be retained by MidOcean Energy.
The Applicants also provided a draft, court enforceable undertaking pursuant to section 87B of the Competition and Consumer Act 2010 – a draft ring-fencing undertaking offered by three Brookfield entities (the draft undertaking). A copy of the draft undertaking is available under the Applications heading below.
Immediately following completion of the Proposed Acquisition, MidOcean Energy intends to sell 2.49% of Origin's 27.5% interest in APLNG to ConocoPhillips. This sale does not form part of the conduct for which the parties are seeking authorisation.
The Proposed Acquisition involves several entities with complex corporate structures. By way of summary:
a Brookfield LP related entity currently has a controlling stake in AusNet Services Ltd (AusNet). AusNet owns and operates electricity transmission assets, electricity distribution assets, gas distribution assets and behind the meter services in the National Electricity Market;
a separate Brookfield LP related entity currently has a 50% stake in Intellihub, a company that provides smart meters and associated services in Australia; and
a co-underwriter in Brookfield LP currently has an indirect interest in Jemena. Jemena owns and operates gas transmission and processing facilities, gas distribution assets and electricity distribution assets in eastern Australia.
Further details about the Proposed Acquisition can be found in the application below. Additional supporting material, including annexures to the application and witness statements, will be published below in the near future. The ACCC has not yet made a determination regarding the applicants’ claims of confidentiality and will initially publish the application documents on the ACCC Public Register bearing the applicants’ redactions.
The ACCC has 90 days from the date that the application was lodged to make its decision. This timeframe can be extended with the agreement of the applicants but, in this case, the Applicants have not agreed to an extension of the timeframe at this stage.
The ACCC is commencing its public consultation on the application and will invite interested parties to make submissions on the application and draft undertaking, to be provided no later than 5pm on 21 June 2023. The ACCC may, but need not, have regard to any information provided after that date.
Details about how to make a submission will be included in the ACCC’s invitation to make submissions.
An indicative timetable for the ACCC’s assessment of this matter is set out below for your information.
