The Australian Competition and Consumer Commission (ACCC) released guidance on transitional arrangements for the country's new mandatory merger control regime. Businesses can use the new regime voluntarily from July 1, 2025 before the system takes full effect from January 1, 2026 (see our alert on key elements and staged introduction of the regime).
The transitional guidance indicates how businesses can engage with the ACCC on mergers throughout this year, including whether informal clearances received during 2025 will mean those acquisitions are exempt from the obligation to notify in 2026.
The ACCC notes that its guidance may be progressively updated to ensure that it addresses new questions as they emerge.
Separately, ACCC chair, Gina Cass-Gottlieb, announced the agency's compliance and enforcement priorities for 2025-2026 at her annual keynote speech. We touch on some of the key competition law priorities.
There were few surprises, with a continued focus on cartels (existing and possibly new investigations and litigation), the supermarket and now broader retail sectors, essential services, Australia's proposed digital platform regulation and implementation of the new mandatory merger control regime.
The ACCC expects important actions ahead on anticompetitive agreements, misuse of market power and cartel conduct, following on from its record imposition of fines and penalties in 2004 (AUD100m, around USD64m).
On cartels, Cass-Gottlieb said that the agency has a strong cartel enforcement program with "several well-advanced investigations spanning a range of important sectors of the economy." She notes the agency will conduct each cartel investigation to pursue either civil or criminal cases, depending on the most effective approach.
There will be a focus on supermarkets (where the top two players account for 67% of the national market). Oversight will now also include broader retail entities with market power. The ACCC intends to use the AUD30m (around USD19m) of government funds allocated to it in October 2024 for investigations and enforcement in this sector. Anticompetitive conduct that may increase consumer prices or treat suppliers unfairly will be pursued. The funding will also be used to target misleading pricing practices.
Cass-Gottlieb touched on the ACCC's priority of promoting competition in essential services with a continued focus on telecommunications, electricity and gas, including its monitoring and regulatory functions.
Noting the critical importance of digital platforms in the Australian economy, the ACCC will continue to treat compliance and enforcement in this sector as a priority. It will continue to work with government on the proposal released in December 2024 for the implementation of a new digital competition regime.
Finally, Cass-Gottlieb touches on the successful implementation of the new merger control regime as a key objective. Public consultation on draft process and analytical guidelines is expected before the end of March and business input is encouraged.
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