Merger clearance process

We strongly encourage potential merger clearance applicants to inform us, by contacting the Head of Mergers (at registrar@comcom.govt.nz) about potential clearance applications as early as possible.

We also encourage potential applicants to initiate pre-notification discussions with us before submitting a clearance application. We treat the fact and content (including any documents provided) of all pre-notification discussions as confidential until an application is registered.

Pre-notification discussions are not compulsory, but can benefit both the Commission and the applicant by (for example) allowing the Commission to start gathering background information and research on the industry and market(s) in question, begin planning the resourcing of its investigation, and indicate to the applicant whether there is any information not contained in the applicant’s draft clearance application that the Commission would like to receive in order to assist its inquiries.

Further information on pre-notification discussions, including the kinds of information and documents that the Commission typically requests during this period, is set out at [6.1] to [6.10] of the Mergers and Acquisitions Guidelines.

Businesses that wish to apply for a merger clearance must complete our application form, including the declaration and confidentiality waivers (if applicable) and send it to registrar@comcom.govt.nz, as well as paying the fee of $3,680 (GST incl).

We publish completed applications on our website, as well as issuing a media release to alert interested parties to the application.

Further information on making a clearance application is set out at [6.11] to [6.23] of the Mergers and Acquisitions Guidelines.

For most clearance applications we publish a Statement of Preliminary Issues. This outlines our preliminary view of the competition issues that we will need to consider during our investigation (based on the information we have at that time), with the aim of increasing the transparency of our process, providing interested parties with the opportunity to submit on the matters identified, and gathering further information which might assist our investigation.

Parties are invited to submit on the Statement of Preliminary Issues within the timeframe specified in the Statement of Preliminary Issues itself.

At the same time, the Commission will undertake inquiries to test the matters set out in the Statement of Preliminary Issues, including by reaching out to the merger parties and third parties to seek further information.

After an initial period of investigation, the Commission will consider whether it is satisfied that the transaction is not likely to substantially lessen competition in any market in New Zealand. If it is satisfied, the Commission will grant clearance for the transaction. If it is not satisfied, the Commission will issue a Statement of Issues.

We publish a Statement of Issues where, following our initial investigation, we have concerns about potential competition issue that may arise from a proposed merger. A Statement of Issues is not a final decision and does not mean that we intend to decline to clear a merger. A Statement of Issues aims to clearly outline our concerns and invite the applicant, target, and interested parties to provide further information relating to those concerns.

After publishing our Statement of Issues, we will continue to investigate, including gathering additional information from the merger parties and third parties.

After receiving submissions and cross-submissions on our Statement of Issues, and undertaking further investigation into the likely effect of the proposed transaction, the Commission will consider whether it is satisfied that the transaction is not likely to substantially lessen competition in any market in New Zealand. If it is satisfied, the Commission will grant clearance for the transaction. If it is not satisfied, the Commission will issue a Statement of Unresolved Issues.

A Statement of Unresolved Issues provides the applicant with a further opportunity to allay our concerns, such as by way of proposed divestment undertakings. It also gives the target and interested parties a further opportunity to provide information relating to these concerns.

Once we have completed our investigation, the Division (ie, the panel of members of the Commission appointed by the Chair for the purposes of making a decision on a particular case) makes a decision on whether to grant or decline clearance. The Chair of the Division then signs a notice of clearance or decline of clearance.

We are only required by law to publish written reasons if we decline to grant clearance to a merger. However, we generally publish reasons to explain our clearance decisions, and to provide guidance to interested parties and future applicants.

While we draft written reasons during our investigation, we can only finalise these following our decision. This means that we generally do not publish written reasons on the day we issue our decision.