If your business is planning an acquisition, the Australian Competition and Consumer Commission’s (ACCC) interim Merger Process Guidelines, released on 30 June 2025, outline critical steps you must follow under Australia’s new mandatory merger control regime, effective 1 January 2026. Understanding these guidelines will help you avoid costly penalties and delays. This alert highlights key processes, timelines, and compliance tips to ensure your business is prepared. In particular, there may be steps that you may need to consider now for deals expected to complete on or after 1 January 2026.
Why This Matters for Your Business
The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth), passed on 10 December 2024, introduces mandatory notification requirements for certain acquisitions under the Competition and Consumer Act 2010 (Cth). The ACCC’s interim Merger Process Guidelines (the Guidelines) detail how your business must notify and work with the ACCC to secure approval for acquisitions.
Starting 1 July 2025, you can voluntarily notify the ACCC under the new regime, but from 1 January 2026, notification becomes mandatory for qualifying acquisitions. The Guidelines also note that an online acquisitions portal is being developed, with updates expected later in 2025.
Key Features of the New Merger Regime
The Guidelines outline the following essentials for businesses:
Mandatory Notification Requirements:
- You must notify the ACCC before completing acquisitions that meet specific monetary thresholds or targeted classes (to be finalised in Q2 2025).
- Exemptions may apply for certain land acquisitions (e.g., residential or commercial property deals) unless additional criteria are met.
- It will also be possible to voluntarily apply for a waiver of the obligation to notify, as a more efficient means of progressing acquisitions which, for example, are unlikely to meet the notification thresholds or do not raise competition risks that need further investigation.
- Failing to notify or completing a notifiable acquisition without ACCC approval can lead to severe penalties: up to $50 million, three times the benefit derived, or 30% of your adjusted turnover during the breach period for corporations, and up to $2.5 million for individuals.
Failing to notify or completing a notifiable acquisition without ACCC approval can lead to severe penalties: up to $50 million, three times the benefit derived, or 30% of your adjusted turnover during the breach period for corporations, and up to $2.5 million for individuals.
Assessment Process:
- Phase 1: A 30-business-day initial review to check for competition concerns. The ACCC may approve your acquisition (with or without conditions) or move to Phase 2.
- Phase 2: A 90-business-day in-depth review if the ACCC has concerns the acquisition may substantially lessen competition. The ACCC issues a Notice of Competition Concerns and may approve, approve with conditions, or block the acquisition.
- Public Benefit Phase: If your acquisition is blocked or approved with conditions, you can apply for a 50-business-day public benefit assessment to show it delivers net public benefits.
Pre-Notification Engagement:
- The ACCC encourages confidential discussions before formal notification, especially for complex or global deals. This can help you understand requirements and prepare thorough submissions.
Remedies and Conditions:
- You can propose commitments (e.g., divestitures or behavioural changes) in Phase 1 (by Day 20), Phase 2 (by Day 60), or the Public Benefit Phase (by Day 35) to address competition issues or enhance public benefits.
- The ACCC may impose conditions, and non-compliance carries significant penalties.
Timeline Extensions:
- Timelines may extend in specific cases, such as when you offer remedies (up to 15 business days in Phase 1 or 2) or if new information arises, requiring updates.
Review Options:
- If you disagree with an ACCC decision, you can seek a merits review by the Australian Competition Tribunal or a judicial review by the Federal Court on legal grounds.
- Certain procedural decisions (e.g., incomplete notifications) can be reviewed internally by the ACCC or by the Tribunal.
Action Steps for Your Business
Start Early with the ACCC:
- Engage with the ACCC before notifying, especially for deals in concentrated markets or global transactions. Pre-notification discussions can clarify whether your acquisition requires notification and help you prepare complete submissions.
Ensure Accurate Submissions:
- Provide full and accurate details in your notification (short or long form) to avoid delays or penalties. Incomplete or misleading information may lead the ACCC to reject your notification, requiring a resubmission.
Plan Your Timing:
- For acquisitions planned around 1 January 2026, consider voluntary notification from 1 July 2025 to secure approval before the mandatory regime starts. Informal clearances granted before 31 December 2025 are valid if your deal completes within 12 months.
Consider Remedies Strategically:
- Propose remedies early to address potential competition concerns and avoid prolonged reviews. Ensure your proposals are detailed, explaining how they resolve issues or deliver public benefits.
Stay Compliant to Avoid Penalties:
- Be aware of hefty fines for failing to notify, completing deals without approval, or providing false information. During the ACCC’s review, ensure your business and the target operate independently to avoid gun-jumping risks.
Transition Period: 1 July 2025 to 31 December 2025
During this period:
- Informal Clearances: You can seek informal clearances, but requests after October 2025 may not be processed before 31 December 2025. Clearances granted before 1 July 2025 may need an updated review if your deal extends past 1 January 2026.
- Merger Authorisations: Applications submitted before 30 June 2025 will be processed until 31 December 2025. Authorisations granted within this period exempt your deal from mandatory notification if completed within 12 months.
- Voluntary Notifications: Voluntarily notifying under the new regime from 1 July 2025 can help you avoid delays for deals expected to complete on or after 1 January 2026.
What’s Next?
The ACCC will update the Guidelines once the online portal is live and final notification thresholds are set. Filing fees, expected to range from ~$57,000 (for notifications which are assessed within Phase 1) to between $475,000 and $1,595,000 (for notifications which progress to Phase 2). Exemptions for small businesses apply and further assessment details are due in the coming months.
Navigating the new merger regime requires careful planning and compliance. Our team at McCullough Robertson specialises in guiding businesses through ACCC notifications, competition assessments, and regulatory approvals.
For expert advice on your next acquisition or to discuss how the new merger regime impacts your business, contact Charlie Watson, Special Counsel at cwatson@mccullough.com.au or Stephen Iu, Partner at siu@mccullough.com.au.
