The ACCC has now published its final merger assessment guidelines, interim merger process guidelines and quick guide for businesses, setting out its analytical framework and process for assessing notified acquisitions while the new regime is available voluntarily now and when it becomes compulsory on 1 January 2026.
These follow the recent publication of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Determination) that sets the notification thresholds, filing fees, application forms and details required for the new acquisitions register under the new merger control system, as we reported here.
This update covers:
the notification forms
the new acquisitions register
the ACCC’s analytical framework under the new merger assessment guidelines
the interim process guidelines for reviewing notified acquisitions, to be further updated later this year.
Notification forms
The finalised pre-notification engagement request form, short and long notification forms and application for public benefit determination form are now available on the ACCC website.
The short and long notification forms are as set out in the Determination, which generally reflect the terms of the draft instrument (as we reported here). The Government has now published the public benefits review application form. The long and short application forms will involve significant front-loading and generally require more upfront work compared with current practice in Australia. The ACCC has separately issued guidance on when it requires parties to use the long form application (as we covered previously here).
On all notifiable deals (that is both forms), parties will need to provide the following:
Information regarding the parties: including a description of the parties, Australian revenue for each party (over the last three years), identifying the goods or services supplied by the parties (including any vertical or other overlaps between the parties), the main industries in which the parties supply those goods or services and a description of what will be acquired and the process or transaction structure.
Information regarding the acquisition: including the type of acquisition (for example, horizontal, vertical or conglomerate), the commercial rationale for the acquisition, the consideration received or receivable and (if applicable) the transaction value for purposes of the transaction value test, information regarding related filings in other jurisdictions and details of any goodwill protection provisions.
Information regarding prior deals (over the last three years): including date the acquisition was put into effect and the Australian revenue of the acquired entity.
Information regarding competitive effects of an acquisition: including a description of the goods or services supplied, identifying other key suppliers, identifying relevant markets and providing estimated market shares for each (over the last three years) including the methodology.
Competitor and customer contacts: for each party’s top five closest competitors, top five largest customers and five customers closest to the median spend of customers.
Documents: transaction documents (including any supply or other ancillary agreements that are conditional on the acquisition), audited financial documents and organisation charts.
Parties that are required to notify using the long form will need to provide additional detailed data and information relating to:
Description of any existing or proposed commercial relationships: between the parties to the acquisition relating to the supply of relevant goods and services.
Additional information regarding barriers to entry: including identifying material suppliers who have started or stopped supplying relevant goods or services (over the last three years) and factors influencing entry (including estimated cost of entry), time required to enter, the importance of economies of scale and scope and network effects, access to inputs, legal or regulatory requirements, customer switching costs and long term contracts.
Additional information for market share estimates: identify third party datasets or reports that parties use to estimate or analyse market shares and how the parties use such data.
Specific additional information depending on whether the acquisition is horizontal, vertical or conglomerate: such as information on how competition works for overlapping products, information regarding ability and incentive to engage in input/customer foreclosure post-acquisition or otherwise foreclose competitors.
Further information about parties’ interests: whether any of the parties have non-controlling shareholdings or cross directorships in companies that supply the same or similar products or services as other parties to the acquisition.
Board documents: (including papers, reports, presentations, studies, market research and so on) explains the rationale for the acquisition, analyses the acquisition, assesses the valuation of the target for the acquisition or examines the competitive dynamics (including competitors, market shares and business plans for relevant goods or services).
For the public benefits application, parties will need to provide additional detail about the claimed public benefits and detriments, including:
The extent to which the public benefit is anticipated to arise because of the acquisition and the likelihood that the public benefit will be realised.
The size of the public benefit and the basis on which it has been assessed.
An estimate of any costs that will be incurred to realise the public benefit.
Any known or reasonably ascertainable detriments to the public.
Contact details for any known, or reasonably ascertainable, people additional to the parties to the acquisition identified in the notification, who are likely to be impacted by, or may have an interest in commenting on, the public benefits and detriments that would be likely to result from the acquisition.
Final or most recent versions of transaction documents and any such transaction documents previously provided to the ACCC that have subsequently been updated.
Acquisitions register
The new acquisitions register will include the following details of notifications:
The names, ABNs and ANZSIC class codes of each notifying party and target.
A summary of the details of the acquisition.
The effective notification date for the notification.
The end of the determination period for the notification.
A summary of any decision of the Commission in relation to the application.
Any extension of a determination period in respect of a notification of an acquisition and the reasons for the extension.
The current stage of each notification of an acquisition.
A statement that consultation is occurring and the nature of the consultation (if applicable).
A summary of the notice of competition concerns that has been given to a notifying party (if applicable).
A summary of the public benefit assessment has been given to a notifying party (if applicable).
A statement to the effect that information or a document has been withheld or removed (if applicable).
Merger control assessment guidelines
The ACCC’s final merger assessment guidelines are largely similar to the draft, which we analysed here. However, there are some incremental changes to clarify how it proposes to assess serial and killer acquisitions, multi-sided platforms and conglomerate effects as follows.
Serial / killer acquisitions and loss of dynamic competition: The ACCC changes emphasising its focus on acquisition of potential competitors. For example, the ACCC now generally refers to mergers that seek to “prevent or hinder” potential competition, rather than needing to “eliminate” it as previously drafted. The ACCC now:
Expressly states it may have “serious concerns” with a merger that eliminates entry or the threat of entry where that may be the only source of potential future competitive constraints.
More definitively states that in situations where a company is contemplating entering a market but instead decides to acquire an existing player this “will” (rather than only “may”) remove the potential competition that the company would have brought about by entering the market.
However, the ACCC does now acknowledge in its final guidelines that a “merger may increase a firm’s ability to innovate” and has sought to clarify the evidentiary for establishing potential competition. For example, the ACCC now states that it will consider whether entry by one of the merger parties absent the merger would be likely, timely and sufficient to produce future competition and expected closeness of competition between firms. Further, evidence that a firm already participates in adjacent or related markets will be a factor suggesting that firm will more likely enter or expand.
Multi-sided platforms: The ACCC has clarified that it will assess acquisitions involving multi-sided platforms using the following framework:
The ACCC will use its general market definition framework to identify the relevant markets in these types of acquisitions, but it will also be informed by whether the merger will primarily affect one side or both sides of the platform, the different incentives the platform has on each side of the platform and the strength of any direct and indirect network effects.
The ACCC may consider when assessing competitive effects of the acquisition the risk of amplifying market power (for example, if interoperability or multi-homing is necessary to compete), presence of any conflicts of interest, barriers to entry and whether those barriers are increasing, the risk of a tipping effect).
Conglomerate effects: In its discussion of conglomerate effects, the ACCC has added an example of how a merged firm may “link sales” by “making a product work better when used in conjunction with another product of the merged firm (or work less well if used with a rival’s product)”.
Merger control process guidelines
The ACCC’s interim merger process guidelines are also largely similar to the draft, which we analysed here. However, there are key changes to clarify how the ACCC proposes to assess competitive bidding scenarios, foreign investment proposals, remedies and materially incomplete notifications or public benefit applications as follows.
Competitive bidding scenarios: The ACCC has clarified that in competitive bidding scenarios, a bidder will not be able to notify a proposed acquisition to the ACCC until the vendor and a bidder reach the point where they either enter into or intend to enter into, a contract, arrangement or understanding pursuant to which the proposed acquisition is to take place. While the ACCC will not consider wholly speculative acquisitions, in appropriate cases there may be pre-notification engagement with bidders in a competitive bidding process in contemplation of a potential notification or waiver application being made at a later stage.
Foreign investment proposals: The ACCC has noted that:
For acquisitions involving foreign investors that are not required to be notified under the ACCC’s merger control regime, Treasury may refer these acquisitions under the foreign investment framework to the ACCC for a competition assessment. If Treasury or the ACCC identifies potential competition issues, Treasury will progress the assessment of the acquisition under the Foreign Acquisitions and Takeovers Act 1975 in consultation with the ACCC, including the ACCC’s views on the competition effects. In those circumstances, parties may wish to make a voluntary notification to the ACCC to assist with the assessment.
For acquisitions involving foreign investors that must be notified under the ACCC’s merger control regime or where parties choose to voluntarily notify the ACCC of acquisitions which are below the notification thresholds, an ACCC decision on the notification or a notification waiver application is required to finalise the competition aspect of the assessment under the foreign investment framework. Treasury will continue to progress the national interest assessment of the acquisition in the foreign investment framework while the ACCC conducts its assessment under the merger control regime.
Remedies: The ACCC has provided a new chapter on remedies, which includes guidance on the following:
The key types of remedies that can address or prevent competitive harm that would otherwise result from an acquisition or increase the likelihood of a net public benefit. The ACCC explicitly states that it generally has a strong preference for structural remedies, which bring about permanent structural change, in contrast to behavioural remedies that are often only effective while the behavioural obligations remain in effect and parties act in accordance with those obligations.
Commitments or undertakings offered by parties proposing a remedy, including when and how offers can be made and the impact that offers have on the assessment timeline. The ACCC also indicates that it will provide guidance on the standard terms that the ACCC generally expects to be included in these kinds of remedies and the typical contents of supporting submissions.
The ACCC’s approach to assessing remedies. The ACCC’s approach and process will depend on factors including the complexity of the issues the remedy is seeking to address, the complexity of the remedy required (including any risks) and the extent to which a remedy raises issues that need to be tested with third parties.
Materially incomplete notifications or public benefit applications: The ACCC clarifies it will focus on whether the ACCC has received sufficient information to conduct a review efficiently and effectively within the applicable timeframes when considering whether a notification or application is materially incomplete. For example:
The notifying party only provides the ACCC with the information required in the short notification form, but the characteristics of the acquisition mean that this does not provide sufficient information to the ACCC and the parties should have provided the information in the long form.
The ACCC has advised the notifying party during pre-notification engagement that there is other available information or data that is clearly necessary to assess the acquisition and the parties do not provide this information or data at the time of lodgement.
The notifying party omits details about a key area of competitive overlap.
The notifying party does not disclose it has a major shareholding in a competitor.
The ACCC encourages parties to report material changes of fact to the ACCC as soon as is practicable after the notifying party becomes aware of the change.
Next steps
We are waiting further detail from the Government on the criteria and form for notification waivers.
See our earlier analysis of the merger reforms for further detail.