The new mandatory pre-merger notification regime will take effect on 1 January 2026. Under the new regime, parties undertaking acquisitions that exceed certain monetary thresholds will need to notify the ACCC prior to the transaction completing. The monetary thresholds are yet to be determined by regulation, however, the Australian Government has announced that it is likely to include Australian turnover and transaction value thresholds. Parties will be prohibited from completing notifiable acquisitions without ACCC approval.

Enforcement risks

Under the new regime, parties will be prohibited from implementing a notifiable acquisition before having notified it to the ACCC and obtained the ACCC’s approval. Parties who put into effect a notifiable acquisition without notification and/or without ACCC approval (sometimes referred to as “gun-jumping”) will be subject to pecuniary penalties. The new regime will require merger parties to be extra careful to avoid any gun-jumping risks when conducting due diligence or engaging in integration planning. The ACCC is expected to enforce these prohibitions vigorously to ensure that parties comply with the new law.

Top 3 themes of the new merger regime

Notifiable Acquisitions

The notification thresholds are yet to be determined. The Treasury has proposed that an acquisition be notifiable if one of the following thresholds is met:

Economy-wide threshold

• The parties’ combined Australian turnover exceeds $200 million; and
• either the Australian turnover of each of at least two of the parties exceeds $50 million OR the global transaction value exceeds $250 million.

• The acquirer’s Australian turnover exceeds $500 million; and
• the Australian turnover of each of at least two of the parties exceeds $10 million.

Large acquisitions

• The parties’ combined Australian turnover exceeds $200 million; and
• the cumulative Australian turnover from acquisitions relating to the same or substitutable products over a 3-year period exceeds $50 million.
  OR

Large acquirers

• The acquirer’s Australian turnover exceeds $500 million; and
• the cumulative Australian turnover from acquisitions relating to the same or substitutable products over a 3-year period exceeds $10 million.

In addition, the Minister of Treasury will have the power to determine classes of acquisitions that are required to be notified even if they do not meet any of the monetary thresholds (e.g. in industry sectors with high levels of market concentration, such as supermarkets).

There will also be a process whereby parties may seek a notification waiver from the ACCC.

Review Process

The review process will consist of the following steps:

• Phase 1 review: The statutory period for the initial review will be 30 business days, but the ACCC may make a “fast-tracked” determination after 15 business days. The ACCC will either determine that the acquisition can be put into effect or that it needs to conduct an in-depth review.

• Phase 2 review: The statutory period for the in-depth review will be 90 business days. The ACCC will either determine that the acquisition can be put into effect or must not be put into effect.

• Substantial public benefit application: The parties can make a substantial public benefit application within 21 days of the ACCC’s determination to oppose an acquisition. The statutory period for the public benefit assessment will be 50 business days. The ACCC will then again either determine that the acquisition can be put into effect or must not be put into effect.

The statutory timeframes will be extended by 15 business days if a remedy is offered. The ACCC will also have the ability to “stop the clock” by, for example, requesting additional information from the parties.

The ACCC will encourage parties to engage with it in pre-lodgement discussions to identify the information and economic data that the parties will need to submit.

Substantive Assessment

The ACCC must not oppose an acquisition unless it is satisfied that the acquisition would have, or be likely to have, the effect of substantially lessening competition (SLC). The SLC test now explicitly states that an acquisition may have the effect of SLC if it creates, strengthens or entrenches a substantial degree of power in a market. The purpose of this amendment is to emphasise the importance of considering the competitive structure of the relevant markets. In addition, the ACCC will now be able to take into account the combined effects of all relevant acquisitions made by the same acquirer over the 3-year period preceding the notified acquisition.

Parties will have the right to make an application to the ACCC to approve an acquisition on “substantial public benefit” grounds if the ACCC has opposed an acquisition on competition grounds. The ACCC may approve such an application if it is satisfied that the acquisition would be likely to result in a public benefit that would substantially outweigh the public detriment likely to result from the acquisition.