ACCC consults on draft merger assessment guidelines
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The news: The competition regulator is seeking feedback on draft guidelines governing how it will assess mergers under a new mandatory notification system taking effect from 1 January 2026.
The consultation period will run through 17 April. The guidance is due to be updated following consultation and ahead of a 1 July commencement date for companies to be able to notify voluntarily under the new system.
The context: Treasurer Jim Chalmers announced proposals last year to force all merger deals above certain monetary thresholds — yet to be legislated — to go to the ACCC for approval. They also included a goal to stop "creeping acquisitions".
Under the new merger laws, notifiable deals won't be able to proceed without a decision from the regualtor or, on review, the Australian Competition Tribunal.
Earlier this month, the ACCC published initial guidance on timing for deal reviews for the rest of the year and beyond.
The 70-page guidance document published today covers topics including "the importance of concentration to merger analysis, and the clarification of the substantial lessening of competition test".
The ACCC has also included in its guidance how it will consider public benefits and detriments linked to a deal.
In a media release accompanying the guidance, ACCC commissioner Phillip Williams said, “while the ‘substantial lessening of competition’ legal test has not changed, the legislation has clarified that it does include creating, strengthening or entrenching a substantial degree of market power".
"This reflects the economic link between a lessening of competition and an increase in market power, which is recognised in the jurisprudence and supports the approach to merger assessment set out in the guidelines."
The government is yet to legislate on procedural detail linked to the mechanics of the new merger system, including monetary thresholds governing which deals will have to be notified to the ACCC.
The source: ACCC
