When a merger must be notified

The ACCC’s summary sets out a threshold for acquisitions that result in large merged firms, an extra one for very large acquirers buying smaller targets, and a cumulative threshold aimed at creeping or serial acquisitions, which comes in two versions. Its guidance for small businesses counts four separate monetary notification thresholds in all.

Some earlier acquisitions are left out of the three-year total. The ACCC lists them, among them acquisitions already notified to the ACCC (other than those notified under the creeping or serial thresholds), acquisitions below $2 million Australian revenue, and acquisitions of certain assets below $2 million market value.

Two asset thresholds commenced on 1 April 2026. They cover buying an asset where, in the ACCC’s words, “the acquisition does not involve all, or substantially all, of the assets of a business.” Notice is required where the acquirer group has Australian revenue of $200 million or more and the deal’s global transaction value is $200 million or more, or where the acquirer group’s Australian revenue is $500 million or more and the global transaction value is $50 million or more.

The ACCC adds that “acquisitions of assets in the ordinary course of business are generally not subject to the merger control regime, other than where they involve interests in land or patents.”

The ACCC says an acquisition is then only required to be notified if the target is connected with Australia, which it explains as “carrying on business in Australia”, and no exemptions apply.

Section 1-8 of the Notification of Acquisitions Determination defines an entity’s Australian revenue as “so much of the entity’s gross revenue, determined in accordance with accounting standards, for the entity’s most recently ended 12-month financial reporting period, that is attributable to transactions or assets within Australia, or transactions into Australia.”

Transaction value is the greater of two amounts: the market value of all the shares and assets acquired under the deal, or the consideration for them.

The dollar amounts in these tests are “to be indexed on the first day of each calendar year starting on or after 1 January 2027”, unless the indexation factor is 1 or less.

The Competition and Consumer Act exempts an acquisition of shares where the acquirer does not obtain control of the target, or already controlled it, unless a legislative instrument requires notification anyway. It also exempts an acquisition of shares in a Chapter 6 entity that results in voting power of 20% or less.

The ACCC’s page also lists exemptions for some acquisitions of land and quasi-land rights, for certain financial market activity, for external administrators, for transfers between superannuation entities, and for acquisitions resulting from the operation of a law. Each comes with conditions that the page sets out in full. Acquisitions that are part of certain internal restructures or reorganisations fall outside the regime altogether.

Some acquisitions of shares must be notified when they change voting power, even without giving the buyer control of the entity, though only if the general notification thresholds are also met. For every body corporate, the ACCC says an acquisition of shares must be notified if it results in voting power between 20% and 50% (inclusive) increasing to 50% or more. Separate voting power rules apply to unlisted companies that are not widely held and to Chapter 6 entities.

The two major supermarket groups named in the Determination must also notify certain acquisitions, including any acquisition of a supermarket business and, subject to listed exemptions, land acquisitions above set sizes, regardless of the general thresholds or the control exemption.

Where a large business is buying a small one, the thresholds are met and no exemption applies, the ACCC puts it plainly: “the acquiring large business must notify the ACCC and wait for approval before proceeding with the acquisition.” Under section 45AW of the Act, a principal party to an acquisition contravenes the law if an acquisition required to be notified is put into effect without having been notified.

Notifications go through the ACCC’s acquisitions portal, on a short form or a long form. The ACCC says the short form will be appropriate in most instances, and the long form suits acquisitions that may raise greater competition risks or complexity. Businesses may also notify voluntarily, and the ACCC encourages them to engage with it on a confidential basis before notifying.