Recap of questions
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Mergers
Issue 1: The substantial lessening of competition test
1. What are your views on the effectiveness of the current merger regime in the Commerce Act? Please provide reasons.
2. What is the likely impact of the Commission blocking a merger (either historically, or if the test is strengthened) on consumers in New Zealand? Please provide examples or reasons.
3. Has the ‘substantial lessening of competition’ test been effective in practice in preventing mergers that harm competition? Please provide examples of where it has, or has not, been effective.
4. Should the ‘substantial lessening of competition’ test be amended or clarified, including for:
a. Creeping acquisitions? If so, should a three-year period be applied to assessing the cumulative effect of a series of acquisitions for the same goods or services?
b. Entrenchment of market power (eg including acquisitions relating to small or nascent competitors)?
c. In relation to just the merger provisions or wherever the test applies in the Commerce Act?
If so, how? Please provide reasons.
5. How important is it for the ‘substantial lessening of competition’ test in the Commerce Act to be aligned with the merger test in Australian competition law, for example, to provide certainty for businesses operating across the Tasman and promote a Single Economic Market? Please provide reasons and examples.
6. How effective do you consider the current merger regime is in balancing the risk of not enough versus too much intervention in markets?
Issue 2: Substantial degree of influence
7. Do you consider that the current test of ‘substantial degree of influence’ captures all the circumstances in which a firm may influence the activities of another? If not, please provide examples.
8. Should the Commerce Act be amended to provide relevant criteria or further clarify how to assess effective control? If so, how should it be amended? Please provide reasons.
Issue 3: Assets of a business
9. Do you consider the term “assets of a business” in section 47 of the Commerce Act is unclear or unduly narrows the application of the merger review provisions in the Act?
10. If you consider there is a problem, how should the phrase be amended? For example, by:
a. referring simply to “assets”? or
b. should the definition of “assets” in the Commerce Act be further refined?
Issue 4: Mergers outside the clearance process
11. What are your views on how effectively New Zealand’s voluntary merger regime is working?
12. Do you consider non-notified mergers to be an issue in New Zealand? Please provide reasons.
13. What are your views on amending the Act to confer additional powers on the Commission to strengthen its ability to investigate and stop potentially anti-competitive mergers? In responding, please consider the merits of each of the options:
a. A stay and/or hold separate power
b. A call-in power
c. A mandatory notification power for designated companies.
Issue 5: Behavioural undertakings
14. Should the Commerce Commission be able to accept behavioural undertakings to address concerns with proposed mergers? If so, in what circumstances?
Anti-competitive conduct
Issue 6: Facilitating beneficial collaboration
15. Has uncertainty regarding the application of the Commerce Act deterred arrangements that you consider to be beneficial? Please provide examples.
16. What are your views on whether further clarity could be provided in the Commerce Act to allow for classes of beneficial collaboration without risking breaching the Commerce Act?
17. What are your views on the merits of possible regulatory options outlined in this paper to mitigate this issue?
18. If relevant, what do you consider should be the key design features of your preferred option to facilitate beneficial collaboration?
Issue 7: Anti-competitive concerted practices
19. What are your views on whether the Commerce Act adequately deters forms of ‘tacit collusion’ between firms that is designed to lessen competition between them?
20. Should ‘concerted practices’ (eg, when firms coordinate with each other for the purpose or effect of harming competition) be explicitly prohibited? What would be the best way to do this?
Code or rule-making powers and other matters
Issue 8: Industry Codes or Rules
21. Do you consider that industry codes or rules could either:
a. Fill a gap in the competition regulation regime or
b. Prove a more efficient and appropriate response to addressing sector-specified competition issues rather than developing primary legislation?
Please provide reasons.
22. If you think that industry codes or rules could fill a gap, what class of matters or rules could be included in an industry code or rules?
23. If the Commerce Act is amended to provide for the making of industry codes or rules, what matters would be important to consider in the design of the empowering provisions in the Act?
Issue 9: Modernising court injunction powers
24. Should the injunctions powers in the Commerce Act be updated to allow the court to set performance requirements? Please provide reasons
Issue 10: Protecting confidential information
25. Do you consider that the Commission effectively maintains the balance between protecting commercially sensitive information and meeting its legal obligations, including the principle of public availability? Please provide reasons or examples.
26. What additional regulatory changes may be desirable relating to commercially sensitive information? Please provide reasons.
27. What are your views on strengthening the confidentiality order provisions in s 100 of the Act?
Issue 11: Minor and technical amendments to Commerce Act
28. What are your views on these proposed technical amendments to the Commerce Act?
29. Are there any other minor or technical changes you consider could be made to improve the functioning of New Zealand’s competition law?
Any other issues
30. Are there any other issues that you would like to raise?