Authorisations

Under the Commerce Act, certain agreements and mergers (together transactions) are prohibited as they can lead to anti-competitive outcomes, such as increased prices or lack of choice. However, the Commerce Act recognises that in some circumstances, an anti-competitive transaction may lead to sufficient public benefits that would outweigh the competitive harm.

We can authorise an anti-competitive transaction where we are satisfied that it will likely benefit New Zealand.

We have published our Authorisation Guidelines to give businesses in depth information on the laws that govern our authorisation assessments, the economic and legal analysis we conduct, and the process we follow in coming to our decisions.

Parties who wish to apply for authorisation for a transaction must complete the relevant application form (available below) and send this to registrar@comcom.govt.nz, as well as paying the fee of $11,500 (incl GST) for an agreement or $23,000 (incl GST) for a merger.

Once we have received the application we check it is in the correct form and completed to a sufficient standard to enable us to start investigating. We publish applications on either the Authorisation Register for agreements or mergers on our website.

Our investigation involves requesting information and documents from relevant parties, conducting research, and interviewing interested parties.

Once we have collected all the relevant information, we first assess whether we have jurisdiction to authorise the transaction.

  • We can only authorise a merger that substantially lessens competition. If we are satisfied that a merger is unlikely to substantially lessen competition, we clear the merger.
  • We can only authorise an agreement that lessens competition, or if it is deemed to lessen competition (as it breaches section 30 (price-fixing between competitors)) or breaches one of section 29 (exclusionary contracts) or sections 37 and 38 (resale price maintenance).

We then assess whether, despite any harm to competition, the transaction results in sufficient public benefits that the transaction will likely benefit New Zealand. If we are satisfied that the transaction will do so, we authorise the transaction. If we are not satisfied that it will, we decline to authorise the transaction.

Do I need to apply for an authorisation?

We encourage parties who are contemplating entering into a potentially anti-competitive transaction 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 the Competition Manager at competition@comcom.govt.nz

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