Australia: Treasury publishes proposed merger notification

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Today, the Australian Treasury released a consultation paper on the proposed monetary and market share thresholds that would trigger the requirement to notify an acquisition to the Australian Competition and Consumer Commission (ACCC).Australian Competition and Consumer Commission) is part of the federal government’s proposed new mandatory merger control regime.

Transactions proposed to meet either threshold must be notified to and approved by the ACCC, and there are penalties for failing to notify or for proceeding with a notifiable merger without prior notification to the ACCC.

The consultation document is available here and submissions close on September 20, 2024.

The proposed merger notification thresholds include a monetary threshold and a market concentration threshold. The proposed thresholds are shown in the table below and have been published in the consultation document.

The consultation paper states that the proposed thresholds are based on international practice and available ACCC data. These thresholds are designed to target anti-competitive and economically significant acquisitions, including serial acquisitions, and ensure that merging parties with significant market power are appropriately scrutinized.

The consultation paper acknowledges that there are concerns that market share thresholds may introduce uncertainty into a mandatory merger control regime and therefore do not generally recommend them as part of a mandatory regime. To provide certainty, the government is considering establishing a notification exemption procedure that would allow merging parties to seek a “notification exemption” from the ACCC. Exemptions would be at the discretion of the ACCC and would bind the regulator in relation to mandatory notification obligations (but would not prevent the ACCC from subsequently taking action in relation to an anti-competitive merger).

In addition to these notification thresholds, the Minister will be empowered by legislative instrument to require notification of certain high-risk acquisitions where they are in sectors with high market concentration or high barriers to entry or expansion. The Minister will be guided by the ACCC’s report or recommendation and will conduct a consultation process before making a decision.

Merging parties may voluntarily notify the ACCC of acquisitions below the proposed threshold to obtain regulatory certainty.

The consultation paper states that as part of the new system, the ACCC will publish guidance on the processes and application of the new system to enable businesses to transition to the new system with greater certainty and predictability.

If you have any questions about the proposed changes to Australia’s merger control system, or are interested in providing comments, please contact us.

For more information on the new mandatory moratorium on merger control regime which will come into force on 1 January 2026, please see our previous client alert .

This alert was prepared with assistance from Naasha Loopoo and Alison Chen.