On 4 March 2025, the ACCC released its much-anticipated guidance on how it proposes to manage the transition to Australia's new mandatory merger control regime. The guidance strongly suggests that, if the ACCC does not provide clearance prior to October 2025 under the current informal regime, it is highly unlikely that merger parties will receive clearance before the 31 December 2025 cut off.
Key takeaways
- Engage early as there is a high risk of a large number of transactions being notified in H2 2025.
- Informal clearance applications received from October 2025 are unlikely to be cleared before 31 December 2025. Either an early approach to the ACCC will be necessary or acquirers will need to engage with the new regime voluntarily.
- Voluntary filing under the new regime is encouraged from 1 July 2025 and mandatory from 1 January 2026. If there is a risk that a deal will not complete prior to 31 December, engage early.
- An acquisition will only be exempt from the new merger clearance regime if the ACCC grants clearance or authorisation between 1 July 2025 – 31 December 2025. If a transaction is granted informal clearance prior to 1 July 2025 and completes after 31 December, the ACCC will need to be approached to request an updated informal view by early October 2025. If an updated informal review is not received by 31 December 2025, notification will need to be made under the new regime prior to completion.
- Notwithstanding that the ACCC does not have call in powers, there are no safe harbours under the new regime.
Informal reviews during the key transition periods
The ACCC has encouraged parties wishing to use the informal merger review process after 1 July 2025 to engage with them as soon as possible. The ACCC's guidance strongly indicates that a significant number of informal merger review applications are anticipated for H2 2025 and that there is a high risk that acquisitions with material competition risks notified to the regulator during that period may not receive clearance prior to the new mandatory regime coming into effect.
This risk is also apparent in the ACCC's warning that voluntary notifications under the new regime should be seriously considered for any transaction from early October onwards, regardless of competition effects.
Restarting filings
Any notifiable transaction that has not received clearance under the informal merger review process by 31 December 2025 will need to re-file in accordance with the new regime. While the ACCC has stated that it will try to consider the acquisition under the new regime quickly, reflecting work already undertaken during the informal review, the potential delay risk is high. It is also unclear what weight will be given to previously submitted information.
The filing requirements for the new regime, including the structure and content of the information provided to the ACCC, are yet unknown. It is also unclear whether fees will be payable for voluntary filings made during H2 2025 and whether, in the case of a re-filing requirement, what fees will be required. Voluntarily filing under the new regime at the outset will help mitigate these unknown and additional fees.
No call in power? No worries!
The ACCC has made clear in its guidance that a breach of section 50 of the Competition and Consumer Act 2010 (Cth) is still in play notwithstanding that an acquisition falls below the new mandatory thresholds. Despite the high likelihood of the low mandatory thresholds capturing the majority of at-risk transactions, the ACCC's encouragement for below threshold acquisitions that raise material competition issues to be voluntarily notified indicates that the ACCC will still be ready to take enforcement action where necessary. While the new merger regime did not provide the ACCC with its desired call-in powers, where no safe harbours exist for below threshold transactions, acquirers must undertake in-depth competition risk assessment to ascertain their filing requirements.
Conclusion
While already widely speculated that the new regime would significantly increase the ACCC's workload, the regulator's strong encouragement for parties to voluntarily notify under the new regime from October 2025 is the clearest indication of the volume of filings anticipated to date.
The guidance provides some clarity as to how the ACCC will approach the transition process, although there are many remaining pieces of the puzzle including the previously foreshadowed consultation on 27 pieces of subordinate legislation, the forms required for filing, and information production requirements.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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