AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
2.10 Joint Ventures Under the 2026 mandatory regime, Australia does not expressly rely on the European “full-function” versus “non-full-function” distinction to determine jurisdic - tion for a merger filing for a joint venture (JV). Instead, mandatory notification depends entirely on whether the formation or alteration of the JV involves an acqui - sition of shares, assets, or control that satisfies the statutory thresholds. In the JV context, the control analysis remains highly fact-specific. Not every consent right, veto or gov - ernance protection will amount to practical control. The key question is whether the relevant rights confer genuine joint influence over the financial and operat - ing policies of the JV vehicle, as distinct from ordinary minority protections or structural safeguards that are purely defensive in character. Jurisdictional Assessment: Incorporated Versus Unincorporated Incorporated JVs (share acquisitions) The creation of, or entry into, a corporate JV vehicle is assessed as an acquisition of shares. If a JV partner acquires practical control (under section 50AA of the Corporation Act 2010 (Cth)) or crosses the new quan - titative voting power thresholds (eg, >20% or ≥50%), the transaction is notifiable if financial thresholds are met. Under the 2026 “connected entity” rules, a JV partner’s broader corporate group revenue is aggre - gated into the threshold test. This means the forma - tion of a brand-new, zero-revenue JV can trigger a mandatory filing if the parent companies are large. Unincorporated JVs (asset acquisitions) Unincorporated JVs (UJVs) need to be considered as potential asset acquisitions. Because the 2026 regime utilises a broad definition of “assets” (capturing legal and equitable rights, land and IP), contributing assets to a JV, or acquiring a participating interest in a UJV’s asset pool, can trigger a mandatory filing if the “dis - crete asset” transaction value thresholds are met. If the formation of a UJV involves the transfer of prop - erty, pooling of physical assets or the granting of spe - cific legal rights (such as IP licences) then a threshold assessment should be undertaken. If a UJV is strictly a contractual arrangement involving no transfer of prop - erty, no acquisition of legal or equitable rights and no
Australia within the preceding 36 months (from the contract date of the transaction in question). However, specific exemptions apply to: • Previously notified acquisitions – Acquisitions are exempt from aggregation if they were previously notified and cleared by the ACCC under the new mandatory regime, provided that such clearance was not granted solely under the serial acquisitions limb (ie, notification was premised on an acquisi - tion triggering the serial acquisitions threshold). Clearances obtained under the ACCC’s legacy informal merger regime and Notification Waivers must also be accumulated. • De minimis targets – Entities that have annual Aus - tralian revenue <AUD2 million or discrete assets with a market value <AUD2 million. • No local nexus – Targets that do not carry on busi - ness in Australia. • Lapsed control – Entities where the acquirer has never obtained control, has since divested the interest, or is legally precluded from exercising governance. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to Austral - ian merger control if they meet the thresholds and possess the requisite local nexus. The target must be “connected with Australia”, meaning it is incorporated in Australia, its Australian revenue/assets trigger the specific target-revenue or transaction-value limbs of the tests, or it carries on a business in Australia. Deter - mining whether a business is “carried on” in Australia requires a holistic, fact-specific assessment of the degree of commercial activity within the jurisdiction. For share transactions, the target entity itself must be engaged in Australian commerce, whereas for asset- based deals, the specific assets must be utilised in or integrated into a business operating locally. 2.9 Market Share Jurisdictional Threshold Australia does not utilise a market share-based juris - dictional threshold. The regime relies entirely on objec - tive financial and voting-power metrics to provide certainty for transaction planning. Market shares are nevertheless relevant for determining the most appro - priate notification pathway and form of application.
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