Following the passage of Australia’s merger law reforms in late 2024, the Australian Consumer and Competition Commission (ACCC) has released initial guidance about the transition to the new regime.
In case you missed it:
- The new regime will come into effect on 1 January 2026, with business able to use it voluntarily from 1 July 2025.
- Merger approvals will move from an option to voluntarily engage with the ACCC about a proposed transaction (via informal clearance or merger authorisation), to a mandatory approval application if certain thresholds are satisfied.
- The ACCC will no longer grant informal clearance after 31 December 2025 and applications for merger clearance will no longer be an option from 1 July 2025.
These changes are a significant departure from the current Australian merger clearance regime and will be particularly relevant for anyone contemplating a transaction. Whether buy-side or sell-side, the reforms will need to be considered in planning for and executing any transaction which falls within the proposed thresholds.
Summary of new regime:
Under the new regime:
- Acquisitions meeting specific thresholds must be notified to the ACCC.
- Transactions subject to mandatory notification cannot proceed unless explicitly cleared by the ACCC.
- The ACCC intends to focus on specific industries where there are high levels of merger activity or whether there is a significant impact on consumers – for example, supermarkets, aged care, childcare, medical and dental practices.
- Certain criteria, if met, will trigger a requirement to notify a transaction. Certain transactions may also be exempt from notification. See our previous article here for further details on the thresholds, exemptions, and details of the application timeframes and process.
Merger transactions during the transition period: 1 July 2025 – 31 December 2025
During the period 1 July 2025 to 31 December 2025 (Transition Period), businesses considering a transaction can either continue to use the existing informal merger review process or use the new regime voluntarily.
The current application for formal merger authorisation will not be available and the last day for submitting a merger authorisation application is 30 June 2025. Even so, if a submitted merger authorisation application is not finalised by 31 December 2025, it will not continue to be assessed and, if the transaction is notifiable under the new regime, it will need to be notified as such.
The ACCC has also indicated that during the Transition Period, it will be mindful of potential anti-competitive activity and will seek to exercise its enforcement powers for any transactions which may seek to avoid the required notification at any time, including by seeking urgent injunctions against the parties.
Informal review during the Transition Period
If a business contemplating a transaction during the Transition Period chooses to use the informal merger clearance process currently available, the ACCC recommends engaging as soon as possible and has advised in the guidance that requests for informal clearance received from October to December 2025 risk not being processed in time before 1 January 2026, when formal notification and application will be required under the new regime.
If the ACCC decides to pre-assess or not oppose a transaction under the informal clearance regime, the business will not require public review where (1) a clearance letter is issued by the ACCC in accordance with new section 189 of the Competition and Consumer Act 2010 (Cth) (Clearance Letter) and (2) the transaction is implemented within 12 months of that Clearance Letter. Otherwise, if the transaction is notifiable and meets the thresholds under the new regime, the parties will need to notify the ACCC in accordance with the new process.
Informal review completed prior to the Transition Period
- If a transaction has undergone an informal review and been cleared prior to the Transition Period and it is implemented prior to 1 January 2026, there will be no further need to notify under the new regime.
- If a transaction has undergone an informal review and been cleared prior to the Transition Period but it is not effected prior to 1 January 2026, the parties can seek an updated informal review from the ACCC during the Transition Period. The ACCC will reconsider the proposed transaction and may elect to maintain it’s original view, in which case it will provide a Clearance Letter and the transaction will need to be implemented within 12 months.
Voluntary notification and notification from 1 January 2026
Businesses have the option of notifying a transaction to the ACCC from 1 July 2025, which will be particularly important where pre-clearance is unable to be sought until late 2025, or where it is likely that informal review will not be complete before 1 January 2026.
If a transaction is not cleared by 31 December 2025, is notifiable and meets the thresholds, the parties will need to undertake the notification and approval process under the new regime. If the transaction does not meet the thresholds, the parties are not obligated to notify, but may choose to do so voluntarily in circumstances where they are unsure if the thresholds are met.
We are here to help
We will continue to provide updates on the ACCC’s implementation and guidance as more information becomes available, including industry specific information. For further advice or assistance with navigating the new regime, please contact our team.
If you would like to discuss the proposed changes to Australia’s merger laws or how they may affect a transaction, please contact our Mergers and Acquisitions team.