The Commerce Commission may grant authorisations for restrictive trade practices or business acquisitions that may otherwise breach certain provisions of the Commerce Act 1986, on application by a person or business involved in such a practice or acquisition. In general, the Commission is empowered to grant an authorisation for a practice or acquisition if it is satisfied that the public benefit of the practice or acquisition outweighs the detriment arising from the loss of competition. Part 5 of the Commerce Act sets out some procedural requirements for the consideration of authorisation applications.
These guidelines set out a streamlined process developed by the Commission that will enable the Commission to make a decision on straightforward authorisation applications as quickly as possible. The Commission anticipates that not all authorisation applications will be able to be dealt with under the streamlined process.
The streamlined authorisation process will apply to applications that seek authorisation for practices or acquisitions that the Commission considers are relatively straightforward, have obvious public benefits and will have a relatively limited impact on competition in the relevant market. In cases where the streamlined process can be used the benefits to applicants will be:
- Timely decisions: The streamlined process is designed to provide greater certainty as to the timetable and the timeframe required for the Commission to decide on authorisation applications. If the streamlined process applies, the Commission will aim to issue a draft determination within 20 working days and will aim to issue a final determination within 40 working days of registering an authorisation application. This should allow businesses to make more timely commercial decisions.
- Cost-effectiveness: The streamlined authorisation process is designed to help ensure that applicants' costs are kept to a minimum.
- Transparency:The streamlined authorisation guidelines are designed to clarify the Commission's processes so that applicants are fully informed of the Commission's progress towards a determination.
The streamlined authorisation process is available for applications made under:
- section 58 of the Commerce Act (restrictive trade practice authorisations); and
- section 67 of the Commerce Act (business acquisition authorisations).
Applications that do not qualify for the streamlined process will continue to be considered under the Commission's standard authorisation procedures. This would be the case where the issues are complex or would have a significant impact on the relevant markets. However, it is expected that most of the features of the streamlined process will be used for all authorisation applications, thereby significantly reducing the time required for them as well.
These guidelines set out how the Commission will determine whether or not the streamlined process may be used for the application and the criteria against which a streamlined authorisation application will be assessed. These guidelines also describe the key milestones in the process.
The Commission's practice for assessing applications for authorisation will continue to develop in the light of judicial precedent, general practice and experience. These guidelines may, in due course, be supplemented, revised or replaced. Although the Commission will follow these guidelines in assessing authorisation applications that are submitted for consideration under the streamlined process, it will apply them flexibly and may depart from the approach described when warranted. These guidelines will be updated as required.
Although these guidelines cover the main process issues for businesses and their advisers, they do not cover every issue that may arise. They are not intended to be:
- a binding statement of how discretion will be exercised in a particular situation;
- a substitute for legal advice; or
- a restatement or definitive interpretation of the Commerce Act (or any regulations or orders made under it).
Anyone in doubt about whether they may be affected by the legislation should consider seeking legal advice.