Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

According to Section 50 of the Competition and Consumer Act, a concentration subject to control occurs both where there is a direct or indirect acquisition of shares or assets by a corporation, or by a third party on behalf of another corporation or person. The Federal Court has determined that even an option as regards the purchase of shares can constitute an acquisition subject to merger control …

Concept of concentration

Merger control in Australia is carried out under the provisions of Sections 50 and 50A, 88 and 90 of the Competition and Consumer Act 2010 (CCA). The Australian Competition and Consumer Commission (ACCC) is invested with the power to assess merger applications and keeps a register of mergers.

The ACCC defined its analytical framework for the assessment of merger proposals in the October 2018 Merger Authorization Guidelines and set the procedural rules in the Informal Merger Review Process Guidelines of September 2013 and the Formal Merger Review Process Guidelines of June 2008. Specific Media merger guidelines were published in 2017 for the media industry.

The legal framework governing mergers was overhauled in 2025 by the Competition and Consumer (Notification of Acquisitions) Determination, introducing a mandatory and suspensory merger review system, which will come into force on 1 January 2026. In this regard, the Australian government has issued rules specifying the circumstances in which transactions taking effect from 1 January 2026 will need to be notified to the ACC under the newly introduced Part IVA of the CCA (see Section 51ABO, 51ABP(1) and 51ABQ(1)). These rules also establish the applicable notification fees, including substantial charges for “Phase 2” reviews, which are scaled according to the value of the transaction. 

Transactions expected to be completed after 1 January 2026 must be assessed in light of these new obligations. Parties to such transactions should determine whether ACCC approval is required and, where appropriate, consider relying on transitional provisions available until 31 December 2025 to mitigate regulatory uncertainty. 

From 1 January 2026 any acquisition of shares, assets, units in unit trusts, interests in managed investment schemes, or interests in land that meets the prescribed notification thresholds must be notified to the ACCC prior to completion.

Transactions completed without the requisite clearance will be rendered automatically void, and parties may face significant civil penalties.

As part of the transitional arrangements, from 1 July 2025, the ACCC will accept voluntary notifications under the new regime. This mechanism is particularly relevant for transactions expected to complete in 2026, especially where reliance on the transitional rules may not be possible or desirable.

Importantly, the ACCC has indicated that it will cease accepting merger filings under the existing informal merger review process from 1 October 2025. Consequently, businesses seeking to secure clearance under the current regime must act promptly. Where clearance is obtained under the existing informal process, the transaction may still benefit from transitional provisions, provided completion occurs within 12 months of the ACCC’s clearance letter. In such cases, a new notification under the 2026 regime will not be required.

Context

According to Section 50 of the Competition and Consumer Act, a concentration subject to control occurs both where there is a direct or indirect acquisition of shares or assets by a corporation, or by a third party on behalf of another corporation or person. The Federal Court has determined that even an option as regards the purchase of shares can constitute an acquisition subject to merger control (Trade Practices Comm'n v. Arnotts Ltd., A.T.P.R. 41-002, 1990, Fed. Ct.). Joint ventures are also covered by the Section when they involve such an acquisition of shares or assets. “Assets” are interpreted broadly. Pursuant to section 51ABN of the CCA, the term encompasses any kind of property as well as legal or equitable rights, regardless of whether such rights constitute property in the strict sense. It also includes the acquisition of shares and equitable interests in shares.

Furthermore, section 51ABC of the CCA extends the notification obligation to acquisitions of units in a unit trust, as well as to interests in managed investment schemes as defined under the CCA.

Joint ventures are defined in Section 4J of the CCA as an activity in trade or commerce “(i) carried on jointly by two or more persons, whether or not in partnership; or (ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate.”

Joint ventures may be governed either by Section 50 controlling mergers, or under Section 45 regulating anticompetitive agreements. Where a joint venture may be considered under either heading, Section 50 is deemed to be the applicable provision. The same test is applied under both provisions, i.e., whether the joint venture is likely to substantially lessen competition in the relevant market, although it may be more advantageous to have the matter governed by Section 50 as under the merger provisions, the matter is likely to be addressed more quickly by the ACCC, and private parties cannot sue to enjoin a merger until after it is consummated.

Joint ventures involving asset or share acquisitions that meet the new notification thresholds will fall under the new law starting 1 January 2026. In the meantime, such joint ventures can voluntarily choose to apply the interim regime starting 1 July to 31 December 2025.

Section 50 of the Competition and Consumer Act (CCA) prohibits mergers or acquisitions that would have the effect or likely effect of substantially lessening competition in any market for goods and services. 

In evaluating the anticompetitive effects of a merger or acquisition, the ACCC first identifies the relevant market, including its product, geographic, functional and temporal dimensions. Section 4E of the Act defines a market as “a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.” The ACCC then considers if any other products and geographic regions constitute relevant close substitutes. Importantly, the ACCC defines markets by reference to products and regions, not by reference to the firms supplying those products or regions at the time of the merger (Appendix A, Merger Assessement Guidelines). The emphasis is thus placed on demand and supply side substitution possibilities, reflecting economic realities rather than existing market structures. This approach ensures that the competitive assessment captures all relevant constraints, regardless of whether they are currently exercised by active market participants.

In conceptual terms, the relevant market can be identified by determining the smallest group of products over which a profit-maximizing monopolist could impose a small but significant and non-transitory increase in price, or equivalent exercise of market power. Thereafter, the ACCC considers the smallest geographic area over which a profit-maximizing monopolist could impose a small but significant and non-transitory increase in prices.

Pursuant to Section 50§3, factors to be taken into consideration in determining the effect or likelihood to have the effect of substantially lessening competition in a market include: 

- the actual and potential level of import competition in the market;

- the height of barriers to entry to the market;

- the level of concentration in the market;

- the degree of countervailing power in the market;

the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;

- the extent to which substitutes are available in the market or are likely to be available in the market;

- the dynamic characteristics of the market, including growth, innovation and product differentiation;

- the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;

- the nature and extent of vertical integration in the market.

For the time being, the authorization procedure for mergers parallels the authorization procedure applicable generally for anticompetitive conduct. Essentially, the ACCC considers whether the merger which substantially lessens competition will produce public benefits that outweigh any anticompetitive effects of the merger. The ACCC is required by the Act to consider as a public benefit any significant increase in the real value of exports, any significant substitution of domestic products for imported goods and other matters that relate to the international competitiveness of Australian industry. In effect, before 2025, there was no statutory obligation for parties to the merger to notify the ACCC of a proposed acquisition. Instead, notification was voluntary in nature. Two main pathways were available to parties seeking regulatory certainty: informal clearance and the authorization procedure.

Control criteria

Australia’s new merger control regime, taking full effect on 1 January 2026, introduces a tiered system of monetary thresholds that trigger mandatory notification to the ACCC. This approach recognizes that the competitive risks posed by acquisitions vary according to the size and market position of the acquiring group “connected with Australia”. 

First, where an acquisition would result in the formation or expansion of a large corporate group, defined as one where the combined Australian revenue of the acquirer and target exceeds AUD 200 million revenue and the target's Australian revenue exceeds AUD 50 million or the global transaction value is over AUD 250 million, notification is required. 

Second, a distinct threshold applies to very large corporate groups, where the acquiring group’s Australian revenue exceeds AUD 500 million. In such cases, the obligation to notify arises if the acquirer has made acquisitions in overlapping markets over the previous three years valued above AUD 10 million in aggregate on the contract date. 

Third, the law directly addresses the phenomenon of creeping or serial acquisitions, strategies through which firms incrementally accumulate market power without any single transaction reaching traditional merger thresholds. If an acquirer, within a group whose revenue exceeds AUD 200 million, has made multiple acquisitions in the same or related markets exceeding AUD 50 million over a rolling three-year period, notification is similarly mandated. 

For very large acquirers, defined as corporate groups with Australian revenue exceeding AUD 500 million, notification is required if, over the preceding three-year period, it has undertaken one or more acquisitions in overlapping or related markets with a cumulative transaction value exceeding AUD 10 million dollars. 

Global Competition Law

811. Concept of concentration

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Les notions juridiques connexes

811. Concept of concentration

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise