Commission Publishes Revised Authorisation Guidelines And Application Forms

The Commerce Commission has released its updated Authorisation Guidelines that explain its approach to assessing applications to authorise agreements or mergers in the public interest.

The Guidelines were last updated in 2013 and since then the Commission has considered several authorisations, some of which have been before the courts.

The revised Guidelines include some process changes and further clarify our approach to assessing when benefits and detriments are likely to arise.

The revisions also recognise the Court of Appeal’s comments in NZME v Commerce Commission, confirming that it is open to the Commission to adopt a modified total welfare approach in its analysis of public benefits.

The revised authorisation application forms reflect the same developments in the Commission’s approach.

A copy of the revised Guidelines and the revised application forms are available on our website:
• Authorisation Guidelines
• Section 58 authorisation application form
• Section 67 authorisation application form

Background

The Commerce Act 1986 prohibits certain agreements and mergers that harm competition.

Merging firms can seek clearance for a proposed merger. Clearance will be granted if we are satisfied that the merger would not be likely to substantially lessen competition in any New Zealand market. In addition, the Commerce Act recognises that a merger that substantially lessens competition or an agreement that lessens competition may have sufficient public benefit to outweigh the competitive harm arising from the agreement or merger.

In such cases, firms can apply to the Commission for authorisation of an agreement or merger. Authorisation allows firms to undertake conduct that would otherwise breach the Commerce Act. We will grant an authorisation when we are satisfied that the agreement or merger is likely to benefit the New Zealand public.

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