The Australian Competition and Consumer Commission (ACCC) has taken a significant step in transitioning to a new merger regime by releasing draft merger assessment guidelines for public consultation. These guidelines outline the analytical framework that the ACCC will use to evaluate notified acquisitions under the new regime, which is designed to reflect best practices in competition assessments.

Although the new merger regime will not be mandatory until January 1, 2026, the ACCC aims to provide early guidance to help businesses, their advisers, and the community understand the assessment process. ACCC Commissioner Dr. Philip Williams emphasized that the guidelines will enhance transparency and predictability in the ACCC's decision-making process.

One key aspect of the new guidelines is the clarification that the legal test for 'substantial lessening of competition' includes the creation, strengthening, or entrenchment of significant market power. This change acknowledges the economic relationship between reduced competition and increased market power, aligning with established legal principles.

Additionally, the guidelines allow the ACCC to consider the cumulative impact of serial acquisitions over the past three years when deciding on the approval of a new acquisition. This is particularly relevant for transactions that may not individually threaten competition but could collectively harm the market.

The ACCC is actively seeking feedback on these draft guidelines from various stakeholders, including businesses, consumers, and the general public. The consultation period will run from March 20 to April 17, 2025, and the finalized guidelines will be released ahead of the voluntary notification process starting on July 1, 2025.

The new merger regime was established following the passage of the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 by the Australian Parliament on December 10, 2024. Under this regime, all transactions exceeding a specified threshold must be reported to the ACCC. The guidelines will replace the previous 2008 Merger Guidelines and will be updated to reflect current best practices and the evolving legal landscape.