AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
The Short Form notification (the standard pathway) • Criteria for use: The default requirement for stand - ard, non-complex transactions that require a formal Phase 1 clearance but do not cross the ACCC’s structural “complexity” market share thresholds. • Information requirements are material and include three years of historical revenue data and acquisi - tion activity, market share estimates (including, to the extent relevant, revenue, volume and capacity), executed (or near-final) transaction documents, detailed structure charts, audited financials, and comprehensive contact lists for top competitors, suppliers and customers. The Long Form notification (for complex transactions) • Criteria for use: The Long Form is strictly required for transactions presenting significant structural overlaps or complex market dynamics. According to the ACCC’s formal guidance, parties are gener - ally expected to use the Long Form if they trigger any of the following market share thresholds. (a) Horizontal mergers: The combined post-acqui - sition market share is ≥40% (with a market share increment of ≥2%), or ≥20% (with an increment of ≥5%). (b) Vertical mergers: One party has an estimated market share of ≥30% in the upstream market and the other party has an estimated market share of ≥30% in the downstream market. (c) Conglomerate mergers: The parties supply adjacent products or services, and at least one party has an estimated market share of ≥30% in its respective market. (d) Qualitative triggers: Even if numerical market shares are below these thresholds, the Long Form is expected if the target is deemed a “vig - orous and effective competitor” (a maverick), or is developing a significant product, input, or user base in a market where the parties poten - tially overlap. • Information requirements are significant and include everything required for the Short Form notification, plus details on non-controlling share - holdings, the sales process and bids, and manda - tory production of a broad range of internal cor - porate documents. This includes two years’ worth
is AUD8,300. A standard Phase 1 notification costs AUD56,800. If a matter proceeds to Phase 2, substantial additional fees apply based on transaction value: • value ≤AUD50 million = AUD475,000; • value >AUD50 million to AUD1 billion = AUD 855,000; and • value >AUD 1 billion = AUD1,595,000. Fees must be paid upfront upon lodgement of the relevant phase for the notification to be deemed valid. Exemptions exist for defined “small business entities”,
which have revenues of <AUD10 million. 3.4 Parties Responsible for Filing
The obligation to notify rests with the “principal party”, which is the acquirer. However, target co-operation is practically essential, given the extensive information requirements.
3.5 Information Included in a Filing Pathway Criteria and Documentation
Under the Competition and Consumer (Notification of Acquisitions) Determination 2025, the information burden on merging parties is rigidly dictated by the specific filing pathway utilised. The Notification Waiver (for low-risk transactions) • Criteria for use: Strictly reserved for transactions that trigger the financial thresholds but “clearly do not raise any plausible competition risk” (eg, zero or negligible horizontal overlaps, no vertical rela - tionships, and no adjacent market interactions in Australia). • Information requirements are intentionally stream - lined and include basic information such as a description of the parties, rationale, main indus - tries, market definition and relevant transaction documents. The Notification Waiver requires only 12 months of Australian revenue data and high-lev - el market share estimates based solely on revenue. Parties are exempt from supplying internal board documents, audited financial accounts, or third- party contact lists for market testing.
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