Which supermarkets are subject to special obligations?
The Competition and Consumer (Notification of Acquisitions) Determination 2025 (Determination) defines “major supermarkets” to include Coles Group Limited and Woolworths Group Limited and their connected entities.
Other supermarkets that are not currently covered under the meaning of a “major supermarket” and so the general notification thresholds apply to them (see below).
Notification requirements for major supermarkets
The Determination provides that from 1 January 2026, major supermarkets must notify the ACCC for the following acquisitions regardless of whether those transactions meet the general notification thresholds.
Acquisitions of supermarket businesses: Any acquisition of shares or assets, where a major supermarket acquires, in whole or in part, a “supermarket business”. A “supermarket business” is defined by reference to the Competition and Consumer (Industry Codes – Food and Grocery) Regulations 2024 (Cth). A business is a supermarket business if:
(the main purpose of the business is the retail sale of grocery products to consumers
a substantial proportion of those grocery products is food that is not for in-store consumption.
Acquisitions of interests in land for supermarket use: Any acquisition (legal or equitable) of land that a major supermarket will use for a supermarket business (as defined above), if the land meets the below size tests:
If there is a commercial building on the land (which is not intended to be demolished): the gross lettable area is greater than 1,000 m2.
If the building is absent or will be demolished: the site area is greater than 2,000m2.
If the land is directly adjacent to existing land already held, the parcels are aggregated for the above tests.
The land notification requirement does not apply to:
Lease renewals or extensions for land with a currently operating commercial business on the site (to maintain continuity).
Interests in land previously notified for the same site (to avoid duplication).
Sale-and-leaseback arrangements.
Land where only a non‑supermarket business operates or will operate.
Minority shareholdings (where no control is being acquired): Even when a major supermarket is not proposing to acquire ‘control’ of either a supermarket business or land as set out above, it is still required to notify the ACCC.
These supermarket‑specific notification obligations are set to sunset five years from the date of the date of the registration of the Determination, in June 2030.
Substantive assessment
The ACCC’s substantive test for assessment is whether the acquisition would or could, in all circumstances, have the likely effect of substantially lessening competition. The legislation makes clear that substantial lessening of competition includes having the likely effect of creating, strengthening or entrenching a substantial degree of power in the market.
For major supermarkets, the application of this test raises some novel considerations in the context of the special obligations above, for example in assessing notifications relating to acquisitions of interests in land with no obvious competitive overlaps. It remains to be seen how the ACCC will apply the legislation to such cases under the new regime.
Seeking early legal advice and maintaining a close working relationship between the property and legal teams of the businesses will assist the major supermarkets in better anticipating any challenges and navigating the ACCC process.
Notification requirements for other supermarkets
For supermarket businesses other than the major supermarkets, acquisitions are notifiable if they meet the general monetary thresholds.
In simple terms, for most transactions, notification is required if:
The combined Australian revenue of the parties to the transaction (including related bodies corporate and connected entities of the buyer) is at least $200 million and either the revenue of the target or assets being acquired is at least $50 million, or the global transaction value is at least $250 million (higher threshold applies for acquisition of assets where the asset does not form all or substantially all assets of a business, please see our briefing here for details).
For very large acquirers (Australian revenue over $500 million), notification is triggered if the revenue attributable to the assets being acquired is at least $10 million.
Serial acquisitions are also captured, with a three-year look-back for previous acquisitions of the same or substitutable/competitive goods or services that cumulatively meet the above thresholds.
For further details on the thresholds and related concepts, please see our briefing here.
How can we help?
The new merger control regime represents increased ACCC scrutiny for the supermarket sector in Australia. Early planning, careful analysis and engagement with the ACCC (where relevant) will be critical to navigating these changes and ensuring continued compliance.
If you wish to discuss how the merger reforms may affect your organisation, please contact us.
Australia’s new merger reforms have commenced and mark the most significant overhaul of Australia’s merger control framework in decades.