ACCC Merger Reforms: Further guidelines and information released in the lead up to new regime

In preparation for Australia’s new merger control regime, the ACCC have continued releasing draft guidance material with the publication of draft guidelines for the merger application process. Here, we explore the latest in the series of guidance material, being the draft guidelines for the merger notification process.

In case you missed it, you can read our previous alerts in chronological order:

1. Federal Government announces reforms to merger laws (22 April 2024)
2. Proposed New Merger Review Regime: Treasury Releases Consultation Paper (5 September 2024)
3. Follow-Up Alert: Historic Merger Law Reform Passes Parliament (4 December 2024)
4. Changes to Australia’s merger laws – ACCC releases guidelines for new regime (5 March 2025)
5. ACCC Merger Reform: Release of draft merger assessment guidelines (27 March 2025)

The most recent set of draft guidelines (Draft Process Guidelines), released on 27 March 2025, explore how businesses and their advisers can engage with the ACCC in respect of Australia’s merger control regime. The release of the Draft Process Guidelines comes in advance of the new regime coming into effect on 1 January 2026, with voluntary notification under the new regime available from 1 July 2025.

Importantly, the Draft Process Guidelines are subject to further update and finalisation following public consultation and we will continue to report on the changes as they are notified by the ACCC.

Similarly, the Australian Treasury also published for public consultation, on 28 March 2025, the Competition and Consumer (Notification of Acquisition) Determination 2025 outlining the intended merger notification thresholds, the determination of “turnover” for the purposes of notification, targeted notification requirements for supermarkets, and giving effect to proposed notification forms.

Summary

The new merger control regime is one requiring mandatory notification where a transaction meets certain criteria and thresholds, and if determined by the Minister, in certain sectors (see our article here for more information). In contrast to the current regime, which is based on a judicial enforcement model, the new mandatory and suspensory regime will involve a different process encouraging pre-notification and engagement with the ACCC and for certain transactions to be subject to compulsory ACCC review before they may proceed.

Among other things, the Draft Process Guidelines provide for:

• how transaction parties can undertake the suggested “pre-notification engagement” with the ACCC and the timeframe for assessment;
• how the notification waiver process will be facilitated;
• the new concept of “serial acquisitions”; and
• what information will be included on the public Acquisitions Register.

Pre-Notification Engagement

The Draft Process Guidelines describe pre-notification engagement as a chance for acquirer to discuss their transaction with the ACCC and consider issues which are likely to be relevant to the ACCC’s assessment, including details of any data or supporting information that ACCC is likely to seek.

If the ACCC determines that a notification is “materially incomplete”, the assessment timelines will be impacted and the parties may need to issue a new notification (and pay the relevant fee, again) and the transaction may be delayed. Accordingly, pre-notification engagement aims to ensure parties have ready the necessary information prior to submission, and reduces the likelihood of the ACCC issuing an extensive request for further information or determining the application incomplete.

The Draft Process Guidelines describe the pre-notification engagement process as follows:

• Acquirers can lodge a “pre-notification engagement request” (Request) in the ACCC’s mergers portal, along with a draft of the proposed notification and other information.
• The ACCC recommends that pre-notification engagement is initiated at least two weeks prior to the intended date of notification, although depending on the industry, merger parties and potential competition concerns, it may be appropriate to commence engagement even sooner.
• Following receipt of the Request, the ACCC aims to contact the notifying party within 5 business days, during which process, the notifying party and ACCC can discuss context for the transaction, the relevant market, clarify information and data required to support the application, and commence considering relevant competition issues.

If an acquirer wishes to seek confidential assessment of their transaction (only available in certain circumstances, such as a surprise hostile takeover), this request should be made during pre-notification assessment.

Notification Date and Assessment Timeframe

The first formal step to obtaining merger clearance is the lodgement of the notification, via the merger portal. The Draft Process Guidelines provide that:

• The notification should be lodged by the principal party to the acquisition, which will usually be the acquirer.
• If there is more than one acquirer, the notification should be made jointly.
• If an acquisition relates to other proposed acquisitions, one combined notification may be available for them all, streamlining the process.
• When the notification is lodged, the applicable fee must be paid.
• Information will be required regarding the business activities of the transaction parties, financial information including turnover, and the relevant markets and customer and competitor details.
• Once a notification is lodged and the fee is paid, the ACCC will determine the “effective notification date”.

It is important to ensure that a notification includes sufficient information for the ACCC to consider, given that without sufficient information, the ACCC may determine the notification is incomplete and that there is no effective notification date, or it may set a new effective notification date. The effective notification date starts the clock for the assessment timeline for the ACCC to make a determination, as follows:

Pre-Notification Engagement - optional but recommended 2+ weeks prior to notification

Effective Notification Date: Notification and fee paid

Phase 1:

Phase 2: Issue of a Phase 2 Notice to the parties and the Acquisitions Register, identifying the parties, their economic activities, and the concerns the ACCC has in relation to the transaction, including the “theory of harm” that is the basis of the Phase 2 Notice, and the matters the ACCC intends to investigate, along with details of any Phase 2 fee.

Following the end of Phase 1 (upon the issue of a Phase 2 Notice):

After Phase 2 concludes: 

• if the ACCC approves the acquisition:
  • after 14 days have elapsed, if no Tribunal review has been requested, it can be effected; and
  • subject to the above, it must be effected within 12 months otherwise, the notification becomes stale and a new notification would need to be lodged.

• if the ACCC does not approve the acquisition:
  • within 14 days, the parties may seek a Tribunal review of the ACCC’s decision; or
  • the parties may lodge a public benefit application.

Notifications Waivers

The Draft Process Guidelines detail the process for an acquirer to apply for a waiver from the requirement to notify an acquisition. Waiver applications will be available from 1 January 2026 where it is considered an acquisition should not require notification, including because it does not raise competition risks requiring notification.

The Draft Process Guidelines provide for the waiver process as follows:

• Unlike the pre-notification engagement process, the ACCC does not expect parties to engage with the ACCC prior to applying for a waiver.
• A waiver application is made in writing and may attract a prescribed application fee, determined by the Minister.
• The application is to be lodged via the ACCC’s mergers portal.
• Waiver applications will be published on the Acquisitions Register, and decisions will be made after at least 10 business days, to enable third parties to make submissions. The Draft Process Guidelines suggest that the majority of waiver applications will be assessed within 20 business days.

In response to a notification waiver application, the ACCC may decide:

• That the acquisition does not require notification; or
• To refuse to grant the waiver applied for,
  and its decision and explanation will be provided to the acquisition parties, as well as published on the Acquisitions Register.

Serial acquisitions 

A significant element of the new regime is the focus on the cumulative effects of serial acquisitions, that is, businesses undertaking numerous acquisitions in a similar sector over time. The Draft Process Guidelines provide that the ACCC will ask for information regarding any prior acquisitions: 

• Put into effect in the previous 3 years;
• Involving any of the parties to the current acquisition; and
• The targets of which are directly or indirectly involved in the supply or acquisition of the same goods or services, or substitutable goods or services, or that are otherwise competitive with each other.

Acquisitions Register

The ACCC will maintain a public register of all acquisitions notified to it, including details of their determinations and reasons (Acquisitions Register). The Draft Process Guidelines provide that the Acquisitions Register will include the following information:

• details of the notified acquisition, including the names of the parties, the industry, and a description of the acquisition;
• where the application involves a “public benefit” assessment, a description of the public benefit and detriments
• the ACCC’s determination and reasons for making the determination;
• where applicable:
  • the ACCC’s decision that the notification is subject to Phase 2 review;
  • the Notice of Competition Concerns
  • the Public Benefit Assessment
  • any other information or documents prescribed in a legislative instrument.

The notification application itself will not be published and the Draft Process Guidelines provide that while the ACCC is committed to treating information provided to it in confidence “responsibly and in accordance with the law”, there may be circumstances in which the ACCC deems it appropriate to disclose information provided to it to a limited extent. 

We are here to help

If you are considering undertaking a transaction in the near future and would like to understand whether it will need to be notified under the new regime, please get in touch with our Mergers & Acquisitions Team.

To stay up-to-date with the latest news regarding the new merger control regime, subscribe to our M&A alerts here.