Guidelines galore! ACCC releases three sets of guidelines ahead of new Australian merger regime

What you need to know

• The ACCC has released three sets of guidelines ahead of commencement of the new merger regime in Australia.
• Transitional guidelines address how mergers will be dealt with for the remainder of this year and contain important rules regarding when mergers need to be put into effect.
• Draft assessment guidelines update the ACCC's substantive Merger Guidelines from 2008.
• Draft process guidelines update the ACCC's Informal Merger Review Process Guidelines from 2013.

What you need to do

• Familiarise yourself with the new guidelines.
• Carefully consider the implications of the transitional guidelines on any deals in 2025.
• If you intend to seek informal clearance from the ACCC, ensure you do so no later than October 2025 and much earlier if possible, to avoid the possibility of not obtaining informal clearance by 31 December 2025 and having to re-notify under the new regime.
• The new regime will be mandatory from 1 January 2026, but parties may opt-in voluntarily from 1 July 2025, in which case the two sets of draft guidelines will be applicable.

Transitional guidelines, merger assessment guidelines and merger process guidelines

The ACCC has published three sets of guidelines ahead of the commencement of Australia's new merger regime - transitional guidelines, draft merger assessment guidelines and draft merger process guidelines. In this article we highlight the key points from each of them.

Transitional guidelines

Merger clearance processes in Australia will be in a state of flux for the next 12 months as we move from the current voluntary system, through a transition period from 1 July 2025, and then into the new mandatory regime from 1 January 2026. It is important to think strategically about any deal that is progressing between now and early next year which has an Australian element, including deals where there are no substantive competition concerns but the thresholds would be triggered.

On 4 March 2025, the ACCC released guidelines on the transition to a new merger control regime (transitional guidelines) to assist parties to navigate this period.  Key takeaways from the transitional guidelines are as follows:

• Informal reviews in late 2025: Parties can still request informal review of a deal under the existing regime, but the ACCC expects a large number of requests between now and the end of the year and recommends that parties engage with it as soon as possible. Requests for informal review after early October 2025 will risk not being considered in time. In practice, this date may in fact be much earlier. Parties should not assume that simple reviews with limited or no competition concerns will be finalised quickly in this period – the ACCC will not be prioritising these deals. If an informal clearance is not finalised by the ACCC by 31 December 2025, the ACCC will not continue the review after this time. 
• Informal clearance obtained between 1 July and 31 December 2025: From 1 July 2025, the ACCC will issue a "s189 letter" after completing a pre-assessment or public review, when the ACCC decides not oppose the deal. This process is new. Deals assessed by the ACCC between 1 July and 31 December 2025 do not need to be notified under the new regime if:
  • the acquirer receives a s189 letter from the ACCC; and
  • the acquisition is put into effect within 12 months of the ACCC's letter.

If the acquisition is not put into effect within 12 months of the letter, and the acquisition is notifiable and meets the new notification thresholds, the deal must be notified again under the new regime, or the parties must apply for a waiver.

• Informal clearance obtained before 1 July 2025: If parties receive informal clearance before 1 July 2025 and it is possible that the transaction will not complete before 1 January 2026: 
  • if the transaction will not meet the thresholds under the new regime, no further action is required; but
  • if the transaction is likely to meet the thresholds under the new regime, you may be required to re-notify the transaction under the new regime.

To avoid re-notification, parties can request an "updated informal view" and, if the ACCC maintains its original view, the ACCC will issue a s189 letter and the parties will have 12 months from the date of that letter to complete the transaction. It is worth noting that the ACCC may request more information to inform its updated informal view. Parties should request the informal view as close to 1 July 2025 as possible, to avoid the risk of not receiving a s189 letter before 1 January 2026.

• Informal clearance not sought or not finalised before 1 January 2026: If before 1 January 2026 merger parties have not: 
  • directly sought and received a pre-assessment or public review (informal clearance); or
  • finalised their informal clearance process with the ACCC;

and their transaction has not been put into effect, if it meets the thresholds the transaction must be notified under the new regime. 

There are two potential elements to this risk – (i) transactions where informal clearance was not sought (perhaps as there was no substantive competition risk); and (ii) transactions that get "stuck" in informal clearance and do not obtain a s189 letter by 31 December 2025. Both these categories may both require notification (or waiver application, if appropriate) if they exceed the thresholds.

• Merger authorisation: Merger authorisation applications filed before 30 July 2025 will still be considered until 31 December 2025. If the ACCC does not complete a merger authorisation review by 31 December 2025, the transaction will need to be notified under the new regime.

Draft merger assessment guidelines

The draft merger assessment guidelines released on 20 March 2025, detail the approach the ACCC will take when assessing the competitive effects of acquisitions. Once finalised, they will replace the current Merger Guidelines dated November 2008. The key differences between the current Merger Guidelines and the draft merger assessment guidelines largely reflect the legislative changes to the test and regime. Of note: 

• Expansion of substantial lessening of competition test: A key change in the new merger assessment guidelines is to highlight that a substantial lessening of competition can include creating, strengthening or entrenching a substantial degree of power in a market. This reflects the ACCC's recent approach under the current merger regime, including an increased focus on market share as a key indicator of market power, but has the legislative backing of the new merger provisions. The result is that the ACCC will apply greater scrutiny to:
  • serial acquisitions where each individual transaction may only result in a de minimis increase in market power (including because it is an acquisition of a small competitor), but when viewed overall a series of transactions may have the likely effect of substantially lessening competition, and
  • small acquisitions by parties with existing market power, reflecting the view in the new merger guidelines that a small change in market power can still amount to a substantial lessening of competition.

• Approach to serial acquisitions: The draft guidelines highlight that the ACCC may be able to treat the effect of an acquisition as being the combined effect of that acquisition and certain previous acquisitions by a merger party that were put into effect in the 3 years prior to the notification. This includes acquisitions involving goods or services that are the same or substitutable, irrespective of the geographic area. The draft guidelines offer several examples of potential competition concerns. They include where small or potential competitors might face increased difficulty reaching minimum efficient scale, and where a vertically integrated firm makes a series of retail-level acquisitions, making it difficult for a competing wholesaler to maintain economies of scale and offer a competitive wholesale price to remaining independent retail stores. 

• Framework for analysing mergers involving digital platforms: Reflecting the ACCC's close focus on digital platforms in recent years, the new merger guidelines dedicate a section to "Mergers involving multi-sided platforms". The framework emphasises the unique characteristics of these platforms, particularly network effects (including the potential to create a 'tipping effect') and the interconnectedness of different user groups. The ACCC will generally consider each side of a platform to constitute a separate market, although its approach will depend on the circumstances, including the different incentives the platform operator has on each side of the platform, the strength of network effects and the presence of any conflicts of interest. The draft guidelines also highlight that the acquisition of data in a merger can be a significant factor in the ACCC's assessment of potential competition concerns. The ACCC will consider whether the merger provides the merged firm with the ability and incentive to restrict rivals' access to essential data, integrate data in ways that create competitive advantages, or leverage data dominance in platform ecosystems to the detriment of competition. 

• Elimination of potential competition: While the existing merger guidelines frequently reference potential competition concerns from proposed transactions, the new merger assessment guidelines consider at length the impact of mergers that eliminate potential competition rather than real, existing or likely competition. The draft guidelines discuss 'killer acquisitions', and give more specific attention to the concept of the loss of dynamic competition, highlighting the value of competitive pressure exerted by potential entrants on incumbents to innovate and invest. The ACCC identifies this as a major risk in markets impacted by network effects, again directed at digital markets. However, it is unclear from the new merger guidelines how the ACCC will predict future potential competition, particularly in highly dynamic markets where technology changes can dramatically change the competitive landscape in a short timeframe.

• Treatment of efficiencies: The draft guidelines introduce the concept of "rivalry-enhancing efficiencies" as the primary type of efficiency relevant to the ACCC's assessment of the impact of the transaction on competition. These are efficiencies that directly affect the level of competition in a market by changing the incentives of the merged firm and encouraging it to compete more vigorously against rivals. Other types of efficiencies may be considered as part of the public benefit test.

• Net public benefit test: Under the existing merger guidelines, the public benefit of a transaction can be considered through the merger authorisation process (as distinct from the informal merger review process). Under the new regime, the "net public benefit" test will become a standard (yet optional) element of the assessment process, and merger parties will be entitled to apply to the ACCC for approval of transactions that substantially lessen competition but which result in a net public benefit. Parties can only apply for consideration of the net public benefits of a transaction once the ACCC has completed its formal assessment process and has determined that the transaction cannot proceed because it substantially lessens competition. The ACCC will only approve a merger in these circumstances where the net public benefit outweighs the detriment to the public arising from the transaction. 

Consultation on the merger assessment guidelines will conclude on 17 April 2025.

Draft merger process guidelines

The ACCC released draft merger process guidelines for comment on 27 March 2025. These guidelines are intended to replace the existing Informal Merger Review Process Guidelines of 2013. The new process guidelines are intended to assist merger parties to understand the steps the ACCC will take in assessing a merger, when it will take those steps and how parties should engage with the ACCC under the new regime.

Key points from the process guidelines

• Steps and timing: The steps and timing in a merger application are outlined in the process guidelines and are consistent with the legislation passed last year.  Key features include:
  • a pre-notification engagement phase with the ACCC (unspecified length);
  • a Phase 1 initial assessment of 30 business days, with Phase 1 early determination possible after only 15 business days in certain cases;
  • a Phase 2 in depth assessment of 90 business days; and
  • a public benefit phase of 50 business days following a Phase 2 determination.

• What to notify: The process guidelines contain details of the type of acquisitions that may be within the scope of the merger control regime (in general terms these are acquisitions of shares or assets). Whether acquisitions falling within the scope of the regime must be notified will depend on whether the transaction meets the monetary thresholds and whether any exemptions apply. The monetary thresholds will be set by the Minister in a legislative instrument. On Friday 28 March 2025, Treasury published an exposure draft of this instrument.
• When to notify: Parties to an acquisition that is required to be notified must lodge their notification with the ACCC before the acquisition is put into effect, and await the ACCC's determination. The process guidelines note that entering into an acquisition agreement which is not binding until one or more conditions are met (such as regulatory approval) will mean that the business is not taken to acquire the relevant shares or assets until it becomes binding. However, the process guidelines go on to note that a mere speculative proposal cannot be notified – a contract, arrangement or understanding should have been entered into, or all parties propose to enter into it. Notification of takeover bids meeting certain conditions and schemes of arrangements are also permitted.
• Notification waivers for use in some cases: The process guidelines provide initial guidance in relation to notification waivers, but note that the ACCC is continuing to consider its approach and will provide further guidance in due course. Waivers will be available from 1 January 2026. If the ACCC grants a waiver, it removes the obligation to notify, but the acquisition remains subject to section 50 of the Competition and Consumer Act 2010 (Cth) (CCA). According to the process guidelines, waivers are intended to be used where acquisitions should not need to be notified including because, on the information provided, they are unlikely to meet the monetary thresholds or do not raise competition risks that need further investigation.
• Further details on waivers: Details of each waiver application will be placed on the Acquisitions Register prior to the ACCC's determination and a confidential waiver process will not be available. Most waiver applications will be determined within 20 business days, but the application must be on the Acquisitions Register for at least 10 business days before an ACCC determination. In making its determination, the ACCC will consider the object of the CCA, the interests of consumers, the likelihood that the notification thresholds would apply to the acquisition and the likelihood of a substantial lessening of competition. The ACCC's determination and explanation will also be published on the Acquisitions Register.
• Pre-notification engagement process: The ACCC encourages businesses to discuss their acquisition with it before formally lodging a notification. Parties can commence this process by lodging a request via the mergers portal. The process guidelines note that the nature and extent of pre-notification engagement will differ for each acquisition but may include providing a draft notification. It will generally be conducted on a confidential basis. The ACCC encourages businesses to commence pre-notification engagement at least two weeks before the proposed notification will be filed, or "much earlier" where an acquisition may have competition concerns, including where the acquisition involves concentrated markets, is part of a global transaction being considered by other competition agencies, or where it raises competition concerns that may be addressed through a commitment or undertaking. 
• The acquirer is responsible for notifying: A notification may be lodged by a single acquirer or, if there are multiple acquirers, jointly by each of them. Notifications must be made via the mergers portal on the ACCC website and accompanied by the relevant fee.
• Short and long forms will be available: The final design of the forms will be set by a Treasury Minister. However, the process guidelines envisage that for the majority of notifications that do not raise significant competition concerns, businesses will be able to utilise a short form. 
• Confidential assessments are limited: As a rule, the ACCC will publish details about a notification on the Acquisitions Register within 1 Business Day of the effective notification date. However, there are two situations where the ACCC may assess notifications confidentially and not publish them on the Acquisitions Register in the usual time frame. These are (i) certain surprise hostile takeovers, and (ii) certain voluntary transfers of authorised deposit-taking institutions and other regulated entities under the Financial Sector (Transfer and Restructure) Act 1999 (Cth).
• Multi-jurisdictional mergers: Parties may use the pre-notification period to discuss aligning the ACCC's assessment with reviews of the transaction by overseas agencies where appropriate. Notifying parties will often be asked to provide a bilateral confidentiality waiver, to enable the ACCC to discuss the transaction with overseas agencies and vice versa. This is already common practice by the ACCC.
• Foreign investment considerations: The ACCC is currently working with Treasury on the interaction between the foreign investment framework and the new merger regime. Further guidance will be provided in due course, but in the meantime, the new process guidelines note that businesses can decide which application to submit first (if both are required).
• Goodwill provisions: In its determination of a notified acquisition, the ACCC may make a declaration that the statutory exception to the cartel provisions does not apply to a goodwill protection provision of an agreement. Notifying parties should provide the ACCC with details of any goodwill protection provisions at the time of lodging their notification. Further guidance on this issue will also be provided in due course. It will be important to see whether this guidance contemplates the ACCC giving the parties early warning of such a declaration, to enable the parties to make any necessary changes ahead of the determination.
• Commitments or undertakings: The draft process guidelines suggest that in some cases, a remedy offered in Phase 1 may address the ACCC's concerns and avoid a Phase 2 review. To achieve this, the ACCC encourages notifying parties to proactively consider whether commitments or undertakings would address competition concerns and make their "best offer" as early as possible in Phase 1, rather than waiting for the ACCC to raise competition concerns. Further guidance on commitments and undertakings will also be provided in due course. Commitments or undertakings offered in either Phase 1 or Phase 2 must be offered by Business Day 20 and day 60 respectively, or the ACCC must not have regard to them. In a public benefit application, parties may offer commitments or undertakings up to 35 Business Days after the effective application date.
• 14 calendar day waiting period after ACCC determination: If the ACCC approves an acquisition, parties may put it into effect after the 14 calendar day period to request Tribunal review has passed. An acquisition must be put into effect within 12 months of the ACCC's determination in order to avoid having to re-notify.
• Acquisitions Register: The ACCC will maintain a public register of all notified acquisitions, determinations and reasons on the ACCC's website. The Acquisitions Register will include:
  • details of the notified acquisition – e.g. party names, non-confidential description of the acquisition, effective notification date, end of determination period, relevant industry;
  • for public benefit applications – a description of the public benefit and detriment claims;
  • the ACCC's determination and reasons for making the determination;
  • the ACCC's decision (if any) that the notification is subject to Phase 2 review;
  • the Notice of Competition Concerns (if applicable);
  • the Public Benefit Assessment (if applicable); and
  • any other information or documents prescribed in a legislative instrument.

The Register will not include the notification application or public benefit application. It will also not contain submissions from parties to the acquisition or third parties. This is a change from the current merger authorisation process.

• Timeline adjustments: There are a number of circumstances in which timelines may be extended during the ACCC's assessment of an acquisition. These include when a notifying party (i) offers a commitment or undertaking; (ii) requests an extension to the timeline; (iii) does not provide information to the ACCC by the specified date; or (iv) takes longer than 10 days to respond to a section 155 notice. Other examples include when a material change of fact occurs; where the ACCC identifies false or misleading information during Phase 2; or where the Notice of Competition Concerns / Public Benefit Assessment is issued later in the timeline.
• Material changes of fact: Parties have an ongoing obligation to notify the ACCC of any material changes of fact until the ACCC makes its determination and civil penalties will apply for failure to comply with this obligation. As noted above, material changes of fact may also result in changes to the effective notification / application date, or timeline extensions.
• Reviews: Certain ACCC decisions and determinations throughout the process are subject to review. ACCC determinations that an acquisition may or may not be put into effect are subject to limited merits review buy the Tribunal. Notifying parties may apply for this review, as may third parties (but only where permitted by the Tribunal). In addition, the notifying party may also seek review of various process-related decisions by the ACCC. Who is responsible for this review will depend on the decision in question.
• Acquisitions below the thresholds: If an acquisition falls below the threshold and has not been notified, section 50 of the CCA (prohibiting acquisitions of shares or assets that have the effect or likely effect of substantially lessening competition in any market) will continue to apply. The ACCC will monitor acquisitions and take investigatory and enforcement actions in relation to anti-competitive acquisitions, even if they fall below the thresholds.

Consultation on the draft process guidelines concludes 28 April 2025. 

Want to know more?

• Merger reforms passed by Australian Parliament (29 November 2024)