By Rachel Martin, Special Counsel
Significant changes are coming into the merger space. From the 1st of January 2026 a new requirement will be introduced wherein the ACCC must be notified for all acquisitions which meet a new prescribed threshold.
Luckily, the Australian Competition and Consumer Commission (ACCC) has released new guidance to help businesses considering a merger in 2025.
The new guidance is centered around Section 50 of the Competition and Consumer Act 2010 (“the Act”), which states that a corporation must not directly or indirectly acquire shares in the capital of a body corporate, or acquire any assets of a person if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market.
To assist merger parties to decide whether they should notify the ACCC, the ACCC has developed a notification threshold which helps the ACCC to filter and limit the merger reviews to those that may potentially raise competition concerns.
The Notification threshold is where a potential merger may result in both of the following:
It’s worth adding that the ACCC can investigate any merger, regardless of whether it meets these thresholds.
Currently, merger parties need not notify the ACCC of proposed acquisitions or to wait for clearance before proceeding with an acquisition.
Of course, failing to engage with the ACCC leaves a business vulnerable to the ACCC taking legal action in the Federal Court (if the acquisition is in breach of Section 50 of the Act).
So, businesses typically voluntarily engage by seeking informal clearance, or applying for merger authorisation.
Under the new mandatory regime, any notifiable acquisitions (as captured by Part IVA of the Act) that meet the specified thresholds must be notified to the ACCC and now must wait for approval from the ACCC before completing the acquisition.
Treasury is proposing three types of notification thresholds: monetary, market concentration thresholds and additional targeted notification requirements (target acquisitions that directly affect Australian consumers).
Treasury released a consultation paper in September 2024, and further detail can be found on the Treasury website. The thresholds are subject to change so please consult with your legal adviser for the most up to date position.
Beginning from July 1st 2025, parties will no longer be able to seek merger authorisation under the present merger clearance regime—for the reason that such a process may not be completed before 31 December 2025, or the new regime is in place.
Furthermore, parties can voluntarily notify under the new regime. This is likely to be taken up by applicants whose clearance is unlikely to be completed by 31 December 2025 either due to its complexity or because the application is being made closer to the end of 2025, in order to avoid the need to ‘reapply’ after 1 January 2026.
Finally, any clearance that occurs under the existing regime in the period July-December 2025 will be exempt from notification under the new regime, as long as completion of the acquisition occurs within 12 months of clearance.
The ACCC has also provided a graphic timeline showing the key dates during the transition.
The ACCC has clearly indicated that it’s likely to receive a large number of requests for informal review up until December 2025 and this will spike the regulator’s workload.
There is no guarantee a matter will be reviewed or finalised quickly, even if there is a low risk of substantially lessening competition.
Therefore, we recommend you consult with your legal adviser to determine the approach with less risk and reduce the time/cost incurred during the transition period.
If you’re considering a merger in the near future or wondering what these changes might mean for your business, talk to the Argon Law team or learn more about how we can assist with mergers and acquisitions.
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