AUSTRALIA Law and Practice Contributed by: Mark Grime and George Lukic, Thomsons
way if satisfied that the transaction generates a “net public benefit” that outweighs the anti-competitive detriment. 4.2 Markets Affected by a Transaction The ACCC maps affected markets by analysing hori - zontal overlaps, vertical supply chain integration, and conglomerate relationships. While there is no defini - tive statutory de minimis safe harbour that guarantees clearance, the ACCC’s Notification Waiver Guidelines indicate that combined shares below 5% in fragment - ed markets will rarely attract scrutiny. 4.3 Reliance on Case Law The ACCC and the Australian Competition Tribunal primarily rely on domestic jurisprudence and deci - sional practice. However, they frequently draw upon analytical frameworks, market definition precedents, and economic theories of harm developed by the US Department of Justice (DOJ)/Federal Trade Commis - sion (FTC), the European Commission, and the UK Competition and Markets Authority (CMA), particularly in rapidly evolving global digital, platform, and phar - maceutical markets. 4.4 Competition Concerns The ACCC investigates traditional horizontal unilat - eral effects (such as the loss of direct rivalry), verti - cal foreclosure, and co-ordinated effects (facilitating collusion). The defining trend of 2026 is the ACCC’s aggressive scrutiny of “ecosystem” theories of harm and “killer acquisitions” with a particular focus on the elimination of potential or nascent competition. Furthermore, via the new look-back thresholds, the ACCC rigorously targets the aggregate, cumulative effect of “creeping” serial acquisitions by private equity roll-ups and large corporate groups. Beyond these, the ACCC is increasingly focused on portfolio effects, including how a merger might enable anti- competitive bundling or provide the merged entity with unfair access to commercially sensitive data of its rivals, further entrenching dominant market positions. 4.5 Economic Efficiencies Procedurally, the mandatory regime enforces a strict separation: efficiencies are largely excluded from the initial SLC Determination review (Phase 1 and Phase 2) unless they are so significant that they enhance
market rivalry. Private corporate synergies cannot be used to “offset” a loss of competition during this stage of the review. If a transaction is deemed anti- competitive, the parties may proceed to the Public Benefit Phase of the review process where the ACCC applies a “Net Public Benefit” test, weighing broader economic gains against the identified competitive harm. Standard operational efficiencies and other private benefits can only be raised during the Public Benefit Phase. 4.6 Non-Competition Issues The ACCC is a pure competition and consumer reg - ulator; it does not factor industrial policy, national security, or foreign subsidies into the SLC test. How - ever, if parties seek clearance under the alternative “net public benefit” pathway, the ACCC can consider broader economic benefits, such as significant envi - ronmental sustainability gains, export promotion, or the preservation of regional employment. Foreign direct investment (FDI) and national security are strict - ly the purview of FIRB (see 9.1 Legislation and Filing Requirements ). 4.7 Special Consideration for Joint Ventures See 2.10 Joint Ventures . The ACCC first assesses the structural impact of the JV on its specific market. Sec - ondly, it examines the potential for the JV to facilitate illegal “spill-over” co-ordination between the parent entities in markets outside the JV’s scope. Any ancil - lary restraints restricting the parents from competing must be strictly necessary and proportionate to the JV’s legitimate functioning. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The 2026 regime fundamentally empowered the ACCC. It is no longer required to apply to the Federal Court to block a deal. If, at the end of Phase 2 (or the Public Benefit Phase), the ACCC is not satisfied that the transaction avoids an SLC (or lacks a net public benefit), it simply issues a formal administrative deci - sion refusing clearance. This decision legally prevents the transaction from closing.
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