Law Council of Australia

Business Law Section

Draft merger assessment guidelines

Submission Date: 2 May 2025

The Competition and Consumer Law Committee (Committee) of the Business LawSection of the Law Council of Australia welcomes the opportunity to make asubmission to the Australian Competition and Consumer Commission (ACCC) onthe revised draft of its merger assessment guidelines (the Assessment Guidelines).

Generally, the Committee acknowledges the careful and thorough work that has been undertaken by the ACCC as reflected in the Assessment Guidelines, particularly under time pressure. For the most part, and subject to our comments in the submission, the Committee agrees that the draft reflects an update and modernisation to reflect current understanding and practice and does not represent a fundamental shift away from concepts and approaches as they are currently understood.

However, as the ACCC is aware, the shift to an ACCC-overseen administrative model, with the potential for more regular Tribunal review, potentially increases the substantive legal importance and role of the Assessment Guidance as a document that is likely to inform the reasons of both decision makers.

In that sense, the Assessment Guidelines play an important role and should not beviewed merely (or even primarily) as an explanatory document aiming to provide an accessible explanation of merger concepts for the uninitiated. That task can be left to other publications, like FAQs. Consistent with similar regulatory guidance in otherjurisdictions,1 the Assessment Guidelines will now operate as an important and substantive legal instrument used by the ACCC as primary decision maker to set out its analytical framework and approach.

1 See, for e.g., the 2023 US Merger Guidelines and the European Commission Horizontal and Non-Horizonal Guidelines.

Last Updated on 05/05/2025

Share

Related Documents
Tags

Most recent items in Business Law Section


Trending Items in Business Law Section