Seven Months of Mandatory Merger Control in Australia: What the New ACCC Regime Has Taught Deal Parties

Seven months of mandatory merger control in Australia have reshaped how joint venture transactions are planned, documented and executed. Since the new regime commenced on 1 January 2026, every JV deal team operating above the prescribed thresholds has had to navigate a mandatory notification and suspensory clearance process administered by the Australian Competition and Consumer Commission (ACCC). The shift from a voluntary, informal system to a formal, mandatory framework has introduced new timing risks, document-production obligations and strategic considerations that demand early planning. This article provides a practical retrospective for in-house counsel, external advisers and commercial executives structuring joint ventures in Australia, drawing on regulator guidance, legislative materials and early practitioner observations.

Executive Summary, Key Takeaways for JV Deal Teams

After seven months of operation, the mandatory merger control regime has produced a set of clear, practical lessons for parties contemplating joint venture formations, asset contributions or acquisitions of joint control. The following five takeaways capture what deal teams need to know right now.

• The regime is mandatory and suspensory. Parties to a notifiable acquisition cannot complete the transaction until the ACCC grants clearance or the statutory review period expires without a determination. There is no option to close and seek retrospective approval.
• JV structures are caught more often than expected. Acquisitions of joint control, asset transfers into a JV entity and share acquisitions conferring de-facto influence have all triggered notification obligations where the relevant turnover and asset thresholds are met.
• Timelines vary significantly. Industry observers report that straightforward notifications have been resolved relatively quickly, while transactions raising horizontal overlaps or vertical concerns have attracted extended investigation and third-party market inquiries.
• Early engagement with the ACCC pays dividends. Pre-notification discussions help parties identify potential concerns, scope information requests and reduce the risk of delays during the formal review period.
• JV agreements need new protective clauses. Conditions precedent tied to ACCC clearance, interim operating covenants, reverse break fees and clear allocation of notification costs are now essential contractual architecture.

What Changed, Legal and Policy Background

Australia’s transition from a voluntary, informal merger clearance process to a formal mandatory merger control regime represents the most significant reform to Australian competition law in decades. The changes were driven by the 2023 Competition Review, which concluded that the previous system, under which the ACCC assessed mergers informally and could only challenge transactions in court, lacked transparency, enforceability and procedural certainty.

Key Legislative Amendments and Effective Dates

The amendments to the Competition and Consumer Act 2010 (Cth) introduced a new merger notification and clearance framework. The core features of the new merger control regime are:

• Mandatory notification. Parties to acquisitions that meet prescribed monetary thresholds must notify the ACCC before completing the transaction.
• Suspensory effect. Completion is prohibited until the ACCC issues a clearance decision or the applicable statutory period expires. Closing before clearance is a contravention carrying significant penalties.
• Threshold-based triggers. The Competition and Consumer (Notification of Acquisitions) Determination 2025 sets out the turnover and asset value thresholds that determine whether a transaction requires notification.
• Dual-track review. The ACCC operates a short-form pathway for lower-complexity matters and a long-form pathway for transactions that raise substantive competition concerns.

The regime commenced on 1 January 2026, applying to all acquisitions completed on or after that date. The policy rationale, outlined in Treasury’s 2023 Competition Review, was to bring Australia into line with international best practice and give the ACCC ex-ante decision-making power rather than relying on ex-post court enforcement.

Which JV Deals Are Being Caught, Australia Merger Control Thresholds and Practical Examples

The notification obligation is triggered when an acquisition meets the monetary thresholds prescribed by the Notification of Acquisitions Determination. These thresholds are assessed by reference to the turnover and asset values of the parties involved. For JV transactions, the critical question is whether the formation of the venture, or the transfer of assets or shares into it, constitutes a notifiable “acquisition” under the amended Act.

Several JV structures commonly encountered in Australian deal practice are directly affected:

• Acquisitions of joint control. Where two or more parties acquire joint control of a target entity or newly formed JV vehicle, the transaction is an acquisition for the purposes of the regime. If the parties’ combined turnover or the target entity’s assets exceed the prescribed thresholds, notification is mandatory.
• Asset contributions to a JV. Transfers of business assets, including intellectual property, customer contracts and operational infrastructure, into a JV entity are treated as acquisitions by the receiving entity. The value of the contributed assets is assessed against the relevant thresholds.
• Minority stakes with control rights. Even a minority shareholding can trigger notification if it is accompanied by governance rights (such as board appointment rights, veto powers over strategic decisions, or access to competitively sensitive information) that confer de-facto joint control.

Illustrative Examples

Three common JV scenarios illustrate how the thresholds and control tests apply in practice:

• Cross-shareholding JV. Two mid-market competitors each acquire a 50% stake in a new entity formed to pursue a specific project. The combined turnover of the parents exceeds the threshold. Notification is required, and the ACCC is likely to scrutinise horizontal overlaps between the parents’ existing operations and the JV’s proposed activities.
• Private equity roll-over JV. A private equity sponsor acquires a controlling stake in a target, with the vendor retaining a minority interest and board representation. If the vendor’s retained rights amount to joint control, the transaction may be caught, even though the vendor is rolling over rather than acquiring a new interest.
• Strategic 50:50 JV with shared control. Two parties from different sectors form a joint venture to enter a new market. Each contributes assets above the threshold. Even though neither party is a direct competitor, the ACCC will assess whether the JV creates vertical linkages or conglomerate effects that could substantially lessen competition.

Seven Months In, How the ACCC Has Actually Been Handling Mandatory Merger Control in Australia

The first seven months of the new regime have provided JV deal teams with valuable, if still preliminary, data about how the ACCC is exercising its new powers. Early indications suggest a regulator that is thorough, resource-intensive in its information requests, and willing to use the full scope of the statutory review periods for complex matters.

Leading practitioner commentary has highlighted several observable patterns. The ACCC has been active in requesting supplementary information beyond the standard notification forms, particularly in transactions involving horizontal overlaps or concentrated markets. Industry observers expect this level of scrutiny to continue as the regulator builds its precedent base and refines its internal assessment processes.

Typical ACCC Requests and Information Packages

Deal teams that have been through the ACCC merger notification process in 2026 report a broadly consistent set of document requests. The following checklist reflects the types of materials the ACCC has typically sought:

A recurring theme in observed practice is that the ACCC has sought internal documents, such as board papers, strategy presentations and emails between senior executives, that go well beyond the formal notification requirements. Deal teams should anticipate this and implement document-preservation protocols from the outset of transaction planning.

Observed Timings and Outcomes

There is no single statutory timeline that applies to all notifications. The practical duration of an ACCC review depends on the complexity of the transaction and the extent of any competition concerns identified. Early practitioner observations suggest the following ranges:

• Short-form pathway (lower-complexity matters): Initial assessment and clearance within the statutory initial review period, provided no material competition concerns are identified and no supplementary information requests are issued.
• Long-form pathway (complex or contentious matters): Extended review involving detailed market inquiries, third-party consultations and, in some cases, remedy negotiations. The likely practical effect is that parties should plan for a review period spanning several months for transactions in concentrated sectors.
• Post-clearance window: Following an ACCC clearance decision, a period exists during which third parties may seek review. Deal teams must factor this window into their completion mechanics and long-stop date calculations.

The key lesson from the first seven months of mandatory merger control in Australia is that deal timetables must build in flexibility. Fixed completion dates without adequate clearance buffers expose parties to the risk of breaching the suspensory obligation or triggering break-fee provisions prematurely.

Practical Checklist and JV Deal Team Playbook

A disciplined, step-by-step approach to ACCC merger notification is now a baseline requirement for every JV transaction that may meet the prescribed thresholds. The following playbook distils the practical steps that deal teams should embed in their transaction management processes.

1. Run a threshold assessment at the earliest stage of deal planning. Before signing heads of agreement, calculate the parties’ combined turnover and the target entity’s or contributed assets’ values against the Notification of Acquisitions Determination thresholds. Engage advisers to assess whether governance rights could confer joint control even below an equity majority.
2. Appoint a notification owner. Designate a single point of accountability, typically the lead transaction lawyer or a senior in-house counsel, to manage the notification process, coordinate with the ACCC, and track statutory deadlines.
3. Prepare the data room for regulatory scrutiny. Assemble the core document package (see the information-request table above) before filing. Pre-draft competitive-impact analyses, market definitions and pro-competitive rationales. Early preparation significantly reduces the time spent responding to ACCC supplementary requests.
4. Draft the notification form with precision. The ACCC’s notification forms require detailed market and competitive data. Incomplete or imprecise submissions delay the start of the review clock and increase the risk of follow-up requests.
5. Manage the suspensory period actively. During the review period, parties must not take any steps to complete or give effect to the acquisition. Implement interim operating covenants in the JV agreement that govern the conduct of contributed businesses during the waiting period, particularly concerning pricing, staffing and customer contracts.
6. Engage the ACCC in pre-notification discussions. Where the transaction raises potential competition concerns, seek informal pre-notification engagement with the ACCC. This step can help identify likely information requests, flag potential remedy options and shorten the formal review period.
7. Build clearance mechanics into the JV agreement. The agreement should contain a condition precedent requiring ACCC clearance, a realistic long-stop date that accounts for potential extended review, clear allocation of notification costs, and a reverse break fee triggered if clearance is not obtained.
8. Plan for post-clearance integration. Prepare integration plans in advance but do not implement them until after the clearance decision and the expiry of any third-party review window. Premature integration steps, even preparatory ones, can attract enforcement scrutiny.

Red Flags for JV Structures That Increase Enforcement Risk

Certain structural features consistently attract closer ACCC scrutiny and increase the likelihood of extended review or remedy conditions:

• Horizontal overlaps: JV parents that are competitors in the same product or geographic market face the most intensive review.
• Information-sharing mechanisms: JV governance structures that allow parents to access each other’s competitively sensitive information (pricing, customer data, strategic plans) raise competition concerns independent of the JV’s own market position.
• Non-compete obligations: Broad restraints that prevent JV parents from competing with the venture, particularly where the parents have significant existing market positions, are likely to attract conditions or undertakings.
• Aggregation of market power: Asset contributions that consolidate a significant share of supply in a relevant market will trigger substantive review, even where neither parent individually holds a dominant position.

ACCC Notification Waiver, Urgent Pathways and Tactical Options

The mandatory nature of the new regime does not mean that every notification follows an identical, protracted pathway. The ACCC has indicated that it will allocate its review resources proportionately, and several tactical options are available to deal parties seeking to manage timing risk.

• Waiver of the notification obligation. In limited circumstances, parties may seek a waiver from the ACCC where the acquisition clearly does not raise competition concerns. The likely practical effect of a waiver, where granted, is a significantly shortened timeline and reduced information burden. However, early indications suggest the ACCC will grant waivers sparingly and only where the competitive impact is plainly minimal.
• Pre-notification engagement. Informal discussions with the ACCC before lodging a formal notification allow parties to scope the review, identify likely concerns, and submit a more complete notification, all of which can reduce the formal review timeline.
• Short-form notification. Transactions that meet the short-form criteria (lower complexity, no material overlaps, no significant vertical or conglomerate effects) benefit from a streamlined assessment pathway. Deal teams should assess eligibility for the short-form process early and tailor their submission accordingly.
• Confidentiality protections. The ACCC has established processes for handling commercially sensitive information submitted during the notification process. Parties should proactively identify confidential material and request appropriate protections at the time of filing.
• Coordinating with other regulators. Cross-border JVs that also require clearance in other jurisdictions (such as the European Commission or the New Zealand Commerce Commission) should coordinate filing timelines to avoid sequential delays.

Enforcement, Penalties and Remedies Seen So Far

The enforcement architecture underpinning Australia’s mandatory merger control regime carries real consequences for non-compliance. The ACCC has the power to impose significant civil penalties on parties that fail to notify, complete a transaction before clearance, or provide false or misleading information during the notification process.

The potential consequences of non-compliance include:

• Civil pecuniary penalties: Substantial fines for individuals and corporations that contravene the notification and suspensory obligations.
• Divestiture orders: The ACCC can seek orders requiring the unwinding of a completed acquisition that was not properly notified.
• Conduct remedies and undertakings: Where the ACCC identifies competition concerns but does not block a transaction outright, it may accept court-enforceable undertakings, such as behavioural commitments, information-barrier obligations, or restrictions on the scope of the JV’s activities.
• Reputational and commercial damage: Enforcement action attracts public attention, disrupts deal timetables and can undermine stakeholder confidence in a JV’s viability.

Stakeholder bodies, including the Law Council of Australia, have raised concerns about the procedural fairness of certain aspects of the enforcement framework, particularly regarding the timing of ACCC file releases and the adequacy of review periods. Industry observers expect these procedural questions to be tested as the regime matures and the volume of contested decisions increases.

Recommendations for In-House Counsel and External Advisers

Based on the lessons emerging from the first seven months of mandatory merger control in Australia, deal teams should implement the following six recommendations immediately:

1. Embed a threshold checklist in every new JV mandate. No transaction should proceed past the term-sheet stage without a documented assessment of notification obligations.
2. Assign notification ownership from day one. A named individual should be responsible for managing the ACCC process end-to-end.
3. Preserve documents proactively. Implement litigation-hold-style preservation notices for internal documents that may be responsive to ACCC information requests.
4. Prepare market materials in advance. Draft competitive-impact analyses, market definitions and customer-switching analyses before the notification is filed, not in response to ACCC follow-up queries.
5. Develop a communications plan for the suspensory period. Employees, customers, suppliers and counterparties need clear messaging about the transaction’s regulatory status and the restrictions that apply during the waiting period.
6. Engage specialist competition counsel early. The complexity of the new regime, particularly for JV structures that straddle multiple control and threshold tests, warrants early involvement of advisers with direct experience of the ACCC notification process. Find a joint ventures lawyer in Australia through the Global Law Experts directory for tailored pre-deal guidance.

Comparison Table, Notification Obligations by Entity and Transaction Type

The table below summarises the notification position and practical implications for the most common JV transaction structures under Australia’s mandatory merger control regime.

Sources

1. Australian Competition & Consumer Commission, Mergers and Acquisitions Guidance
2. Treasury, Competition Review / Mergers
3. MinterEllison, Six Months In: Navigating Australia’s New Merger Regime
4. Norton Rose Fulbright, Australia’s New Mandatory Merger Control Regime
5. Gilbert + Tobin, Merger Remedies Under Australia’s New Mandatory and Suspensory Merger Control Regime
6. Law Council of Australia, Supplementary Submission on Merger Reform
7. BDO Australia, How to Prepare for Australia’s Merger Control Regime
8. Wolters Kluwer, Transition to Mandatory Merger Control in Australia