ADMINISTRATIVE PROCEDURES

Procedures for applications for clearance and authorisation of mergers

A person who proposes a merger may seek a clearance or an authorisation for the merger from the Commerce Commission, where the merger does or is likely to substantially lessen competition. The Commission will provide notice of the decision in writing to the applicant. Clearances or authorisations protect the merger from action by the Commission or private individuals. Notice of the decision will be given in writing.

A fuller description of the procedure for a clearance is given in section 66 of the Commerce Act. Section 67 describes the procedure for the consideration of an authorisation.

Procedures for applications for authorisations of restrictive trade practices

A person who wishes to engage in a restrictive trade practice that would otherwise breach the Commerce Act may apply to the Commerce Commission for an authorisation under section 58 of the Commerce Act. In considering an application for authorisation, the Commission assesses public benefits versus detriments of the proposed restrictive trade practice or anti-competitive behaviour.

Section 60 of the Act lays out the procedure for applications for authorisation of restrictive trade practices. A summary of the procedures follows.

Every application must be made in the prescribed form, and must be accompanied by the prescribed fee. When the Commerce Commission receives the application, it must:

  1. record the application in the register to be kept by the Commission for the purpose;
  2. give written notice of the date of registration to the person by or on whose behalf the application was made;
  3. give notice of the application to any other person who, in the Commission's opinion, is likely to have an interest in the application; and,
  4. give public notice of the application in such manner as the Commission thinks fit.

Any person who has an interest in any application in respect of which a notice is given may give written notice to the Commission of that person's interest.

The person making the application shall from time to time produce or furnish to the Commission further documents of information in relation to the application as may be required by the Commission.

Before determining an application for an authorisation, the Commerce Commission must prepare a draft determination in relation to the application. The Commission sends a copy of the draft determination and a summary of the reasons to:

  1. the applicant;
  2. any person to whom a notice has been given;
  3. any person who in the opinion of the Commission has an interest in the application; and,
  4. any other person who the Commission considers may assist the Commission in its determination of the application.

The applicant and each other person to whom a copy of the draft determination is sent shall notify the Commerce Commission within 10 working days after a date fixed by the Commission whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.

If anyone notified of the draft determination wishes a conference to be held, the Commerce Commission will appoint a date for the conference. The procedures for the conference are described in section 64 of the Commerce Act.

The Commerce Commission will subsequently make a final determination. If the Commission is satisfied that there are sufficient public benefits to outweigh any detriments arising from the lessening of competition, it may grant an authorisation. The Commission must state in writing its reasons for the determination it made.

Procedures for initiating investigations into likely restrictive trade practices

The Commerce Commission routinely gathers information about trade practices by monitoring and analysing information, focusing on particular industries and businesses and practices across industries and businesses.

A key source of information is information provided to the Commission by the public. The Commission may seek additional information on matters raised through contacts from the public. The Commission analyses such information and screens it against a set of enforcement criteria, to determine whether to commence an investigation.

Depending on the outcome of the investigation, the Commission will determine that no further enforcement action is required, issue an advisory letter or a warning, reach a settlement with the offending party, apply for a cease and desist order, or initiate court action.

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APPLICATION FORMS

Commerce Act Application Forms

Application for Authorisation of Restrictive Trade Practices (s58)
http://www.comcom.govt.nz/adjudication/documents/s58.pdf

Application for Business Acquisition Clearance (s66)
http://www.comcom.govt.nz/adjudication/documents/s66.pdf

Application for Business Acquisition Authorisation (s67)
http://www.comcom.govt.nz/adjudication/documents/s67.pdf

 

 

 

 

 

 

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