New ACCC Draft Merger Guidelines – more data, evidence and economic analysis

In light of the imminent commencement of the new mandatory merger regime (see our earlier article), the ACCC has released its draft merger assessment guidelines (Draft Guidelines) for public consultation.

The Draft Guidelines provide the analytical framework the ACCC will apply when assessing the competitive effects of transactions and clarify how it will interpret and enforce the new regime, including its approach to competition assessment, market definition and public benefit applications. 

What you need to know

There is nothing surprising or ground-breaking in the Draft Guidelines.

Rather, the ACCC has updated the Draft Guidelines to capture current merger assessment practice and has sought to address some of the features of the new merger regime.

In addition to introducing new material on serial acquisitions (especially in light of the three-year look back provisions), killer acquisitions and multi-sided platforms, the ACCC has placed a greater emphasis on:

• dynamic, future and potential competition;
• customer segmented markets and asymmetric substitution; and
• caution in relation to market share figures.

The ACCC has confirmed that it will take a data and evidence based approach to assessing the competitive effects of a transaction, including using economic analysis where appropriate. Robust and verifiable evidence supporting claims of new entry, efficiencies and public benefits will be needed.

The ACCC has also confirmed that the expanded phrasing for the substantial lessening of competition (SLC) test to include creating, strengthening or entrenching of a substantial degree of market power in a market is not intended to change the application of the SLC test. Rather, it casts increased focus on how a small change in market power could still lead to SLC. 

What's next?

The ACCC and the Government are due to release more information about the process under the new regime including application forms and requirements, the notification waiver exemption and confirmation of notification thresholds. 

The due date for making a submission on the Draft Guidelines is 17 April 2025.