Authorising anti-competitive agreements or mergers that will likely benefit New Zealand
This page was updated2 months ago
Under the Commerce Act, certain agreements and mergers are prohibited as they can lead to anti-competitive outcomes, such as increased prices or lack of choice for consumers. However, the law allows the Commission to authorise anti-competitive agreements and mergers in some cases where the public benefits outweigh the competitive harms.
Temporary changes have been made to the Commerce Act as a result of COVID-19. These changes enable the Commission to better respond to the needs of businesses seeking legal certainty through the authorisation process for agreements during the epidemic period. We have issued guidelines to assist businesses considering an authorisation during this time.
Anti-competitive agreements or mergers could include:
mergers or acquisitions that would be likely to have the effect of substantially lessening competition in a market
agreements that have the effect of fixing, controlling or maintaining prices of goods or services
a supplier enforcing a minimum sale price for retailers
agreements between competitors that have the purpose of restricting or limiting the supply of goods or services to competitors.
Do I need to apply for an authorisation?
We encourage parties that are contemplating entering into a potentially anti-competitive agreement or merger to seek legal advice, and to discuss their plans with us. While we cannot give ‘informal’ authorisation, we can provide guidance on potential areas of concern. If you would like to discuss a potential application, please contact our Trade Practices Manager or Mergers Manager (as applicable) at firstname.lastname@example.org.
Parties who wish to apply for authorisation for an anti-competitive agreement or merger must complete the relevant application form (available below) and send this to email@example.com, as well as paying the fee of $36,800 (GST incl).
We publish the applications on our case register, as well as issuing a media release to alert interested parties. In each case, our investigation involves requesting information and documents from relevant parties, conducting research, and interviewing interested parties. Under the law, we can only authorise the agreement or merger if we are satisfied that the benefits to the public outweigh the competitive harm of the agreement or merger.
Our Authorisation Guidelines provide more information on the laws that govern our authorisation assessments, the economic and legal analysis we conduct, and the process we follow in reaching our decisions. Our revised authorisation guidelines were published in December 2020 following consultation.
Our Advisory Note provides guidance to businesses and advisors on the use of quantitative analysis to assess mergers.