ACCC releases merger process guidance for new system

From 1 January 2026, merger parties that trigger specified thresholds will be required to notify the ACCC and obtain clearance before completing their transactions, or risk facing penalties. Parties to a proposed acquisition should now start to consider the impact of the regime change as deals not finalised before 31 December 2025 risk having to refile under the new regime. Parties may seek to notify under the new regime from 1 July this year.

The ACCC has now released draft merger process guidelines on how the ACCC will manage the review process under the new regime. Among other things, the guidance explains for the new system: how the steps in the mandatory notification process will operate, the ACCC’s expectations in relation to pre-notification engagement, the availability of waivers, key timeframes and the ACCC’s approach to serial acquisitions. These process guidelines are separate to the merger assessment guidelines released by the ACCC last week.

The ACCC is seeking feedback on these guidelines until 28 April 2025.

Getting a head start: Pre-notification engagement

In contrast to the old system, the ACCC is implementing a formal system for pre-notification engagement and is encouraging parties to use this system at least two weeks before they formally notify the ACCC of their transaction.

The ACCC says it may be appropriate to contact the ACCC “much earlier” in some cases, including where:

• The transaction involves concentrated markets;

• The transaction is global and will require review by competition agencies overseas; or

• Where the parties believe competition issues involved in the transaction may be addressed by an undertaking or remedy.

There are no statutory time limits for pre-notification discussions. Pre-notification discussions are not compulsory, however the ACCC is responsible for determining the "Effective Notification Date" (Day 0 of the review period). As a result, even if parties don't formally engage in pre-notification discussions, if the ACCC determines an application is incomplete, the statutory review period will likely be delayed.

Getting a waiver will not always be faster

For the first time the ACCC has provided insight as to how the waiver process will work for parties whose transactions should not need to be notified because they either (i) are unlikely to meet the monetary thresholds or (ii) do not raise competition risks requiring further investigation.

The ACCC expects to make most waiver decisions within 20 business days but will not make a decision until an application has been on the ACCC’s Acquisitions Register for at least 10 business days, so that third parties have an opportunity to make submissions. The ACCC’s reasons for any waiver determination will be published on its Acquisitions Register.

Interestingly with a Phase 1 “early determination” taking 15 days, a waiver may not be a quicker path through the ACCC process.  However, we expect that the information requirements of a waiver application to be lower than for a formal notification in line with the ACCC’s stated intention that the waiver process will be an “efficient” means of considering straightforward matters quickly and with a “low burden" on business.

The details of what information should accompany waiver applications and the ACCC’s approach will be provided by way of updates to the merger process guidelines following the government making legislative instruments relating to notification waivers.

Timeframes for notifying the ACCC

Key timeframes that businesses should be aware of when notifying the ACCC about an acquisition:

Phase 1 is up to 30 Business Days. The earliest the ACCC may approve an acquisition is after 15 Business Days from the effective notification date, which is when the notification was made. The ACCC anticipates that 80% of acquisitions will be approved within the first 15 to 20 Business Days, or through the notification waiver process.

If the ACCC decides the acquisition should be subject to further in-depth assessment, there may be a Phase 2 which can last up to 90 Business Days.

The Public Benefit Phase, arising on application from the notifying party following the ACCC making a determination that the acquisition must not be put into effect or may be put into effect subject to conditions, is 50 Business Days starting from when the ACCC receives a public benefit application.

There are significant consequences regarding the length of these timeframes if a business fails to provide complete, accurate and up to date information to the ACCC or the ACCC is not notified of any material changes of fact. The ACCC has the power to:

• make a decision that there is no effective notification date. This means that the ACCC cannot continue to consider a notification, and the merger parties must lodge a new notification;

• set a new notification date, which may be the date it receives additional information, or when it becomes aware of a material change of fact; and

• extend the timeline by the number of Business Days it takes the notifying party to provide the ACCC with additional information.

In more serious cases, for example where the provision of misleading or false information constitutes an offence or contravention of the competition legislation, significant penalties can apply.

ACCC concerns about serial acquisitions

The ACCC is concerned with companies that engage in multiple smaller acquisitions, which over time cumulatively harm competition. Under the new merger regime, the ACCC can take into account previous acquisitions when assessing the effects on competition of an acquisition, where the prior acquisitions:

• occurred in the previous three years;

• involved any of the parties to the current acquisition; and

• involved a company that supplies the same goods or services or goods or services substitutable for, or otherwise in competition with, the goods and services of a target of the current acquisition.

The ACCC has foreshadowed that it will ask for information relating to these prior acquisitions, such as the target’s name, acquirer name, shares or assets acquired, date the acquisition was put into effect, and turnover.

Interaction with FIRB process

The guidelines confirm that, consistent with current practice, even if an acquisition falls below the thresholds, if it is notified to FIRB, Treasury may refer the acquisition to the ACCC for a view on competition effects as part of the FIRB review process.

The guidelines also note that the ACCC is currently working with Treasury on the interaction between the foreign investment framework and the ACCC's merger regime. Further guidance on how the two regimes will operate together will follow.