Law Council of Australia

Business Law Section

Reforming Mergers and Acquisitions — Notification Thresholds

The Competition and Consumer Committee and Corporations Committee of the Business Law Section of the Law Council of Australia (Committees) welcomes this opportunity to provide feedback on the proposed notification thresholds included in the consultation paper (Consultation Paper) published on 30 August 2024 (Proposed Thresholds).1

Consistent with international best practice, the Committees submit that the objectives of merger notification thresholds should be for thresholds to be:2

At the same time, the Committees recognise that the Taskforce is focused on ensuring that the ACCC is able to identify and monitor smaller transactions that may fall under financial thresholds, but which nonetheless raise competition concerns. However, the Committees are concerned that this concern with “killer acquisitions” and other theories of harm associated with competition concerns in small markets (or involving low-value transactions) has led to the proposal of financial and concentration thresholds that are unnecessarily complex, overlapping, and uncertain, and which are out-of-step with international practice.

The approach proposed in the Consultation Paper would result in merger parties being required to assess deals based on a multifactorial approach with four potential tests comprising eight potential limbs in addition to thresholds of ‘control’ and ‘material connection’ to Australia.

Read the full submission below.

1 Treasury, Merger Notification Thresholds, 30 August 2024.
2 ICN Recommended Practices for Merger Notification and Review Procedures, pages 5-6.

Last Updated on 11/10/2024

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