The introduction of Australia’s new mandatory merger control regime, effective 1 January 2026, marks a fundamental shift in the regulatory landscape for renewable energy transactions.[1] For developers, investors and JV participants, the implications go well beyond headline M&A deals, impacting project-level joint-ventures, step-ups in shareholdings and contingent milestone funding structures.
This article examines three critical areas where the reforms will impact renewable energy transactions: joint venture structures and connected entities, step-up in shareholding implications and contingent consideration.
Key takeaways
- JV deals can be caught even at small scale – revenue from JV partners and their wider corporate groups can be aggregated with the JV vehicle, meaning mandatory notification to the ACCC may apply despite low standalone JV turnover.
- Step-ups and staged investments may trigger notification – crossings of the 20% and 50% voting-power thresholds can require a filing even without a change in practical control, which is common in renewable co-development and funding structures.
- Contingent and milestone pricing may push transactions over the line – the contingent consideration payable upon the achievement of milestones may count toward transaction value thresholds.
- Serial or platform acquisitions heighten exposure – pipeline build-outs or repeated asset acquisitions by a JV can activate cumulative revenue tests under the creeping acquisition rules.
- Upfront regulatory planning is now essential – ACCC conditions precedent, extended long-stop dates, threshold modelling and allocation of merger-clearance risk will need to be embedded into transaction documents.
Joint Ventures: when your partner’s revenue becomes your problem
The new merger regime’s “connected entity” and revenue aggregation rules significantly extend the scope of mandatory ACCC notification for JV transactions, even when the JV’s own turnover would otherwise fall below prescribed thresholds.
The concept of a “connected entity” is complex and introduces significant uncertainty into the regime. Entities are connected if they are “related” under Section 4A of the Competition and Consumer Act 2010 (Cth)(for example, as a parent, subsidiary or sibling entity) or if there is a relationship of “control” between them under section 50AA of the Corporations Act 2001 (Cth), including where an entity is able to determine, either alone or with any “associates”, the outcome of another entity’s financial and operating policies.
Crucially, the regime aggregates the Australian revenue of all connected entities of the acquirer and, where relevant, of the target group being acquired. As a result, a JV partner’s group revenue – and potentially that of its parent or related entities – may dictate whether ACCC approval is required, even for minority investments or step-up acquisitions.
Accordingly, a potentially detailed examination of equity structures, inter-entity agreements and on-the-ground business practice may be required. This may differ from conventional analysis undertaken to produce consolidated group financial statements.
Worked Example: Solar Platform JV
To illustrate how the new regime can apply in practice, consider the following joint venture scenario:
- Company A and Company B have established a JV – Solar Platform JV – to acquire and operate solar farms and add BESS capability. Company A owns 70% and Company B owns 30%.
- Company A also has interests in other renewable energy businesses that are similar in nature to Solar Platform JV.
- Solar Platform JV now proposes to acquire Glenworth Solar Farm for $160 million, which has Australian revenue of $10 million.
- Solar Platform JV itself has Australian revenue of $50 million.
- Company A has $300 million in Australian revenue on a standalone basis, but more than $500 million when revenue from its connected entities is included.
Scenario 1: Is Solar Platform JV’s proposed acquisition of Glenworth Solar Farm subject to ACCC approval?
| Acquisition category | Mandatory notification threshold[2] | Is the test satisfied for Glenworth Solar Farm? |
| Acquisitions resulting in large or larger corporate groups | The combined Australian revenue of the acquirer and target (including their connected entities) on the contract date is ≥ $200 million; and either
|
No.
The first limb of the test is satisfied as the JV (as the acquirer), its connected entities (being Company A and B) and the target’s revenue, in total, exceeds $200 million. However, the target’s revenue is only $10 million, which is below the $50 million threshold. Further, the transaction value is under $250 million. |
| Acquisitions by very large corporate groups |
|
Yes. Solar Platform JV’s majority owner, Company A, has combined Australian revenue (including connected entities) over $500 million, satisfying the first limb.Glenworth Solar Farm has revenue of $10 million, satisfying the second limb. |
| Creeping or serial acquisitions resulting in large or larger corporate groups | The:
|
Possibly.
The first limb of the test is satisfied as the JV (as acquirer), its connected entities (being Company A and B) and the target’s revenue exceeds $200 million. The cumulative revenue from any prior acquisitions in the renewables sector over the past 3 years would need to be assessed to determine if it exceeds $50 million. If so, the transaction may be caught under this category. |
| Creeping or serial acquisitions by very large corporate groups | The:
|
Possibly.
The first limb of the test is satisfied as the JV (as acquirer) and its connected entities (being Company A and B) exceeds $200 million. The cumulative revenue from any prior acquisitions in the renewables sector over the past 3 years would need to be assessed to determine if it exceeds $10 million. If so, the transaction may be caught under this category. |
Scenario 2: If the revenue of Glenworth Solar Farm is less than $2m, is Solar Platform JV’s proposed acquisition of Glenworth Solar Farm subject to ACCC approval?
No – ‘Small acquisitions’, referring to a target with less than $2 million in Australian revenue, are excluded from the mandatory notification requirements, meaning transactions below this threshold generally do not need to be notified to the ACCC.[3]
Crossing the Lines: Voting Power Thresholds
The new regime includes a general exemption from notification where an acquirer either already controls the target or does not obtain control through the acquisition. Control is assessed by reference to the capacity to determine the outcome of decisions about the target’s financial or operating policies.
However, from 1 April 2026 there will be carve-outs to this exemption that will require notification for certain share acquisitions even where no change of control occurs. Where the monetary thresholds are met, notification will be required when an acquisition crosses specific voting power thresholds:
| Acquisition category | Mandatory notification threshold |
| 20% Voting Power Threshold | When acquiring an interest in a private, unlisted entity, a notification to the ACCC is triggered if the acquirer’s voting power rises from 20% or less, to above 20%. |
| 50% Voting Power Threshold (all entities) | For any entity, a notification is required if voting power increases past 50%. |
These voting power rules create notification obligations for staged investments and step-up acquisitions that are common in renewable energy joint ventures where the majority threshold are also crossed. For example:
- A co-developer acquiring an additional 5% stake that takes their holding from 18% to 23% must notify (crossing the 20% threshold)
- A JV partner increasing from 48% to 52% to gain majority control must notify (crossing the 50% threshold)
Importantly, these obligations arise regardless of whether the acquirer obtains “control” in the policy sense. The focus is purely on the mathematical crossing of the specified voting power thresholds.
Contingent consideration: counting what you haven’t paid yet
Renewable energy transactions are particularly prone to contingent consideration structures. Purchase prices are frequently tied to successful commissioning, achievement of generation targets, obtaining regulatory approvals, grid connections, or offtake agreements.
A key question facing renewable investors is whether contingent milestones may count towards the transaction value threshold for acquisitions resulting in large or larger corporate groups.
The notification threshold for transaction values, under section 1.12(b) of the Determination, considers the total “consideration received or receivable for all shares and assets being acquired”.
The Explanatory Note to the Determination defines consideration in its ordinary sense, encompassing both cash and non-cash amounts paid for the target.[4] This broad definition indicates that any payment the buyer is contractually obliged to make, including deferred, milestone-linked, or performance-based payments, should generally be included in the transaction value calculation. While there may be arguments for excluding genuinely uncertain contingencies, most milestone or earn-out payments are likely captured as “consideration received or receivable”.[5]
Accordingly, parties structuring transactions with milestone payments should account for the aggregate potential transaction value, not just upfront amounts, when assessing whether mandatory notification thresholds are met.
Get in touch
If you’re in the middle of or contemplating a future transaction, it’s important you have a clear plan for navigating these changes to avoid your transaction being caught up in regulatory red tape. For more information, please contact Alistair Newton and Jo Ruitenberg.
[1] Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) Part 2 (‘the Determination’).
[2] ‘Thresholds and exemptions for acquisition notification’, Australian Competition and Consumer Commission (Web Page) <https://www.accc.gov.au/business/mergers-and-acquisitions/thresholds-and-exemptions-for-acquisition-notification>.
[3] The Determination (n 1) s 1.14.
[4] The Australian Treasury, ‘Explanatory Statement: Competition and Consumer (Notification of Acquisitions) Determination 2025’ (Public Release, 1 July 2025) pp. 13 <https://www.legislation.gov.au/F2025L00753/asmade/downloads>.
[5] Ibid.
