Submission: ACCC merger notification reforms

13/01/2025

ARITA has provided a submission to the Treasury expressing concerns about the impact of changes to ACCC merger notification reforms.

In the submission, ARITA asserts that the requirement to notify acquisitions that meet the relevant thresholds – and the prohibition on putting those acquisitions into effect until a waiver or determination is obtained from the ACCC or the Australian Competition Tribunal – will create delays that cannot be managed in an external administration or receivership, and that without amendments being made to the Competition and Consumer (Notification of Acquisitions) Determination 2025, there is a significant risk that sale of businesses or assets by registered liquidators that would otherwise be possible, will be thwarted.

In theory, the Determination currently exempts acquisitions by a person in the person’s capacity as an administrator, receiver, receiver and manager or liquidator, but it does not exempt sales by an administrator, receiver, receiver and manager or liquidator – which is the real-world scenario.

This creates a range of problems, including conflicts in timing, the cost burden on creditors, issues with funding of ongoing trading, loss of jobs, and potential increased claims on the Fair Entitlements Guarantee.

ARITA submits that section 2-21 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 should be amended so that the existing exemption applies not only to acquisitions by an external administrator or receiver, but also to acquisitions from a person acting in that capacity. In practical terms, this would exclude from the mandatory notification regime sales of shares or assets by companies in administration, liquidation or receivership where the transaction is effected by an administrator, receiver, receiver and manager or liquidator in that capacity.

Read ARITA’s full submission here.