The ACCC has released draft merger assessment guidelines in its transition steps towards a new merger regime.
The merger assessment guidelines outline the analytical framework the ACCC will apply when assessing notified acquisitions under the new regime, reflecting best practice for competition assessments.
While the new regime will not be compulsory until January 1, 2026, the guidelines provide early draft guidance.
“The merger assessment guidelines are intended to help the community, including merger parties and their advisers, understand how the ACCC will assess acquisitions under the new regime,” ACCC commissioner Dr Philip Williams said.
“This combined with the increased transparency that will be available for all decisions and the reasons for the decisions, will provide greater predictability regarding the ACCC’s analysis and decision making.”
Dr Williams added that while the ‘substantial lessening of competition’ legal test has not changed, the legislation clarifies that it does include creating, strengthening or entrenching a substantial degree of market power.
“This reflects the economic link between a lessening of competition and an increase in market power, which is recognised in the jurisprudence and supports the approach to merger assessment set out in the guidelines,” Dr Williams said.
“Another change is that the cumulative effect on competition resulting from serial acquisitions over the preceding three years can now be taken into account in the ACCC’s decision on whether to approve an acquisition.”
The overhaul of the merger process comes amid a raft of merger deals within the retail/apparel space, including the shareholder deal between Myer and Premier Investments, where Myer acquired five brands under Premier – Just Jeans, Jay Jays, Jacqui E, Dotti and Portmans.
Meanwhile, the Melbourne subsidiary of global agricultural firm Louis Dreyfus Company secured control of Namoi Cotton Limited – one of Australia’s largest ginning business – after its shareholding in the business and voting power increased above 50 per cent last year.
The recently released merger assessment guidelines from the ACCC will be updated following a consultation process and will be released ahead of voluntary notifications commencing on July 1, 2025.
Further updates are expected over time, including to reflect decisions of the Australian Competition Tribunal as they occur.
The ACCC is seeking feedback on the merger assessment guidelines from businesses and their advisers, consumers and other interested members of the community.
The guidelines are available to download from the ACCC’s consultation hub which also sets out the details for making a submission.
The consultation will run from March 20 to April 17, 2025.