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

Although only the ACCC can seek an order from the Federal Court to enjoin a merger prior to consummation, Section 81 of the CCA provides that any party demonstrating standing may seek a divestiture order from the Federal Court once the merger has been consummated. With regard to mergers outside of Australia governed by Section 50(A), private parties can likewise only seek a divestiture order post  …

The Federal Courts

Before 2026, notification was voluntary, but the Merger Guidelines suggest notification of mergers where either the acquirer will have a share of 20% or more of any market and it and the target supply substitutable goods or services. In practice, many mergers are notified before realization. The ACCC also offered undertakings the possibility of an informal clearance, which was without binding legal effect. To prohibit a merger, the ACCC must seek an order from the Federal Court and only the ACCC had the power to seek such an order.

Since the 2017 amendments, parties may apply for an authorization directly to the ACCC under Section 88 of the CCA and no more to the Australian Competition Tribunal. The ACCC may have authorized the merger where it satisfied, according to Section 90(7), that the transaction would not have the effect, or would not be likely to have the effect, of substantially lessening competition or that it would result, or would be likely to result, in a benefit to the public which would outweigh the detriment to the public that would result, or be likely to result, from the conduct.

With the enactment of Australia’s new mandatory merger control regime adopted in 2024 and entering into full effect on 1 January 2026, the ACCC has been vested with expanded powers that significantly enhance its oversight role for mergers and acquisitions. These powers are codified in Part IVA of the CCA (2010). Starting 1 January 2026, the ACCC is the decision-maker for notified acquisitions, empowering it to grant unconditional or conditional clearance or to prohibit transactions outright. The new law also grants the ACCC jurisdiction to examine serial or creeping acquisitions through cumulative threshold provisions, which account for transactions implemented over a three-year period in the same or related markets. These changes reflect a structural pivot away from Australia’s historically informal and voluntary review system, aligning national merger control with international best practices and reinforcing the ACCC’s capacity to prevent transactions that may substantially lessen competition. The combination of mandatory pre-clearance, suspensory effect and post-transaction enforceability transforms the ACCC from a consultative authority into a central regulatory gatekeeper in the Australian merger landscape.

The ACCC

Since the 2017 amendments, the Australian Competition Tribunal only reviews decisions of the ACCC. 

The Tribunal consists of a President and Deputy Presidents (who are judges of the Federal Court) and members appointed because of their experience in industry, trade, economics, law or public administration. 

The 2026 new merger control regime provides detailed procedural guidance for applications to the Tribunal seeking review of certain decisions made by the ACCC. Reviewable decisions include findings that a notification or public benefit application is materially incomplete, contains false or misleading information, or is affected by a material change of fact. Applications for review of such decisions must be submitted within seven days of receiving the ACCC’s notice and must include a copy of the notice along with a statement of facts and issues on which the applicant intends to rely. In addition, notifying parties, or any other person granted leave by the Tribunal, may apply for review of an acquisition, which encompasses the ACCC’s decision on whether an acquisition is capable of being authorized, including following a public benefit assessment. Such applications must include a summary of the key findings of fact, economic analysis and legal reasoning as well as a concise statement outlining the applicant’s principal factual, economic and legal contentions.

The Australian Competition Tribunal

Although only the ACCC can seek an order from the Federal Court to enjoin a merger prior to consummation, Section 81 of the CCA provides that any party demonstrating standing may seek a divestiture order from the Federal Court once the merger has been consummated. With regard to mergers outside of Australia governed by Section 50(A), private parties can likewise only seek a divestiture order post consummation of the merger.

The Federal Court retains powers to order post-merger divestitures under Section 81. It also oversees judicial review and enforces penalties. For notifiable mergers, pre-merger injunctions are no longer needed as unapproved completions are void. More precisely, under the reformed merger control regime, effective from 1 January 2026, the Federal Court assumes a significantly expanded enforcement role to uphold the statutory integrity of mandatory and suspensory merger notification obligations. Pursuant to newly inserted section 81B of the CCA, the Court is expressly empowered to order the divestiture of shares or assets or to declare an acquisition void ab initio where clearance was obtained on the basis of false or misleading information, or where the acquirer failed to comply with imposed conditions. This provision allows for post-completion structural relief within three years of the transaction being effected. Additionally, under section 80 CCA, the Court may grant injunctive relief to prevent or reverse mergers that contravene the new suspensory framework. 

The Court also retains jurisdiction to impose pecuniary penalties for breaches of the implementation of unnotified or stayed acquisitions, and may make director disqualification orders to a person from managing corporations under section 86E CCA. Collectively, these provisions underscore the pivotal role of the Federal Court as both a forum for substantive merger adjudication and a guardian of procedural compliance, ensuring that the new regime not only deters anticompetitive concentrations ex ante but also enables robust ex post enforcement.

Global Competition Law

816. The Federal Courts

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Les notions juridiques connexes

816. The Federal Courts

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