In more detail
From 1 January 2026, merger parties must notify the ACCC of acquisitions that meet the prescribed thresholds (see our previous alerts outlining the new regime here and here) with merger parties able to make voluntary notifications under the new regime from 1 July 2025 (for example, if their merger may not be assessed by 31 December 2025). Notification waivers are only available from 1 January 2026.
Treasury and the ACCC are proposing to shift the costs of merger review away from the taxpayer to the merger parties in the form of "cost recovery fees". According to the consultation paper, the proposed fees are scaled to the complexity of the merger review and will ensure that the ACCC is "adequately resourced to administer the new merger system efficiently". The proposed fee amount was determined by "dividing the total cost incurred per type of review by the estimated volume of assessments per year".
The consultation paper proposes the following fees (to be indexed annually):
|
Type of review
|
Proposed fee (exclusive of GST)
|
|
Notification waiver application
(only applicable from 1 January 2026)
|
AUD 8,300
|
|
Phase 1 assessment
|
AUD 56,800
|
|
Phase 2 assessment
|
AUD 952,000
|
|
Public benefit application
|
AUD 401,000
|
The proposed fees represent a substantial change to the current position and will significantly increase the costs to merger parties of obtaining ACCC merger clearance. The proposed fees do not vary according to the size of the transaction (as is the case for Foreign Investment Review Board fees or for merger filings in some overseas jurisdictions such as the United States) or size of the acquirer. The only proposed exemption is for acquisitions by small businesses with an aggregated turnover of less than AUD 10 million.
In the first full year of the new regime, the ACCC indicated it expects to conduct an estimated "100 waiver reviews, 335 Phase 1 reviews, 15 Phase 2 reviews and 3 public benefit reviews". Businesses will not incur additional fees for any extensions to the review timelines.
The process under the new merger regime, with the proposed fees to be incurred by the merger parties for each phase, is summarised in the flowchart below.
If you have questions about the new merger control system, or are interested in making a submission, please contact us.
This alert was prepared with the assistance of Emma Panhuber, Naasha Loopoo and Hayley Bonu.
