The ACCC has marked a further milestone in the transition steps towards the new merger regime with the release of the draft merger assessment guidelines for consultation.
The merger assessment guidelines outline the analytical framework the ACCC will apply when assessing notified acquisitions under the new regime, reflecting best practice for competition assessments.
While the new regime will not be compulsory until 1 January 2026, the guidelines provide early draft guidance.
"The merger assessment guidelines are intended to help the community, including merger parties and their advisers, understand how the ACCC will assess acquisitions under the new regime," ACCC Commissioner Dr Philip Williams said.
"This combined with the increased transparency that will be available for all decisions and the reasons for the decisions, will provide greater predictability regarding the ACCC's analysis and decision making."
"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," Dr Williams said.
"Another change is that the cumulative effect on competition resulting from serial acquisitions over the preceding three years can now be taken into account in the ACCC's decision on whether to approve an acquisition."
The ACCC is seeking feedback on the merger assessment guidelines from businesses and their advisers, consumers and other interested members of the community.
The guidelines are available to download from the ACCC's consultation hub which also sets out the details for making a submission.
The consultation will run from 20 March to 17 April 2025.
Anyone interested in merger reform updates can subscribe for updates on the ACCC website here: Merger reform.
Background
On 10 December 2024, the Australian Parliament passed the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024. The ACCC welcomed the new legislation.
Under the new regime, all transactions above a prescribed threshold must be notified to the ACCC.
The ACCC issued a Statement of Goals in October 2024 to outline its approach to implementing the new regime and to reduce uncertainty during the transition. This included a commitment to release merger assessment guidelines and merger process guidelines for public consultation by the end of Q1 2025.
The guidelines will replace the 2008 Merger Guidelines and reflect changes resulting from the new merger regime as well as updating them to align with current best practice for competition assessments.
The ACCC recently released Transition guidance to assist businesses navigate the transitional period leading up to the new merger control regime commencing on 1 January 2026.
The ACCC will also be releasing merger process guidelines by the end of March and these will be available on the ACCC website at Consultations on merger regime changes.
'Serial acquisitions' refers to acquisitions where a number of smaller transactions occur over time that cumulatively end up causing serious harm to competition.
