1) Is a merger control regulation in force?

Yes. Merger control regulation is contained in Part 3 of the Commerce Act 1986.

2) Which authorities enforce the merger control regulation?

The New Zealand Commerce Commission enforces the Commerce Act including the merger regulation contained therein.

Decisions of the New Zealand Commerce Commission may be appealed to the New Zealand High Court, and further, with leave, to the Court of Appeal and Supreme Court.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part 3 of the Commerce Act. Links to the relevant legislation, guidelines and forms are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

New Zealand's merger control regime only applies to the acquisition of assets of a business or shares. Such acquisitions are assessed by reference to the merger control test rather than the restrictive trade practices prohibitions. However, if an otherwise illegal restrictive provision is included in merger agreements, that restrictive provision will be assessed under New Zealand's restrictive trade practices prohibitions.

There is an exception from the restrictive trade practices prohibitions for covenants in business acquisition agreements that are "solely for the protection of the purchaser in respect of the goodwill of the business". This provides an exception for restraints imposed on vendors that are reasonable in scope and duration to protect the goodwill of the business being acquired. There is no clear dividing line between covenants that are reasonable, and those that are excessive, and a view needs to be taken on a case-by-case basis.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Financial businesses

Approval from the Reserve Bank of New Zealand is required for the following mergers:

• A merger of all or part of a licensed insurer (under the Insurance (Prudential Supervision) Act 2010);
• A merger resulting in a person having significant influence over a registered bank, or an increase in significant influence beyond existing or permitted levels (under the Reserve Bank of New Zealand Act 2021); and
• A merger that would result in an increase of influence over a licensed non-bank deposit taker (NBDT) beyond specified levels (under the Non-bank Deposit Takers Act 2013).

Foreign investment control

The Overseas Investment Act 2005 (the OIA) entered into effect on 25 August 2005. It establishes a regime for screening foreign investment by “overseas persons” in “Sensitive New Zealand Assets”, including sensitive land, significant business assets (including strategically important businesses (SIBs)) and fishing quota. The regime also covers investing in residential property and land, and farmland, but this is not discussed below.

Certain foreign investments must be approved by the relevant Minister or the Chief Executive of Land Information New Zealand (LINZ). Investors are prohibited from implementing those investment before receiving approval. Certain other investments in SIBs that do not meet the mandatory notification thresholds may still be notified voluntarily, and could still be "called in" for review.

New Zealand’s foreign direct investment regime is complex, and investments can be subject to different timelines, fees and substantive tests, depending on their nature. It is recommended that specialist legal advice is sought early in the process.

Regulations and guidelines 

Transactions caught – what is considered a “foreign investment”

Under the OIA, an overseas person is:

• a person who is not a New Zealand citizen and not ordinarily resident in New Zealand; or
• an entity that is incorporated overseas and/or more than 25% owned or controlled, directly or indirectly, by overseas persons; or
• a New Zealand individual or entity investing on behalf of an overseas any of the above.

Foreign Investment includes:

• buying an asset;
• investing in an asset;
• leasing the asset for more than three years;
• acquiring shares or securities in the asset; or
• initiating a takeover of the asset.

Activities/industries and thresholds

It is mandatory for overseas persons to receive approval before making certain investments, including:

• investing in a SIB involved in military or dual-use technology;
• investing in significant business assets (over $100m);
• investing in fishing quota or annual catch entitlement;
• investing in existing forestry; and
• investing in other sensitive land.

An investment in significant business assets or sensitive land includes situations where an investor acquires more than a 25% ownership or control interest in an entity directly or indirectly. Subsequent increases in ownership and control over 50%, 75% and to 100% also constitute relevant investment situations.

“Other sensitive land” includes:

• non-urban land of more than 5 hectares;
• land that is, contains, or adjoins islands, foreshore, seabed, or lakebed;
• conservation or reservation land;
• historic places or wahi tapu; or
• Māori reservations.

Overseas persons investing in SIBs involved in ports or airports, electricity, water, telecommunications, and financial market infrastructure of less than NZD 100m may voluntarily notify these transactions. If they are not notified, however, they may still be "called in" for assessment, even after the investment has been made. This could result in the transaction being unwound or conditions being imposed.

Notification forms and fees

Applications are made online using online webforms, according to the relevant investment pathway. The regime is complex, however, and it is recommended that parties seek specialist legal advice early in the process.

Application fees payable vary, depending on the investment pathway. For example, an application for investment in significant business assets costs NZD 38,800. If an investment concerns significant business assets and sensitive land, application fees range from NZD 68,200 to NZD 146,500.

Relevant authorities and procedures

LINZ has delegated authority to decide almost all applications. The relevant entity within LINZ that assesses applications is the Overseas Investment Office (OIO). However, Ministers have the discretion to ‘call in’ any investment and make the decision themselves. All investments in SIBs are decided by the Minister of Finance.

Different tests are applied when determining whether to approve an investment. Examples of pathways, and the tests that apply to them, are below.

The applicable statutory timeframe for assessment depends on the investment pathway and the test(s) applied. Where more than one test is applicable, the longest timeframe applies. For example, if an investment concerned a significant business asset and a national interest test assessment, the timeframe for the national interest test would prevail. In practice the OIO has complied with this directive, although consent applications subject to the national interest test tend to take the full statutory timeframe.

On 6 June 2024 the Associate Minister of Finance issued a Ministerial Directive in which he set out an expectation that 80% of mandatory filings would be assessed in half the statutory timeframe.

Investor Test

Under the Investor Test, the OIO assesses the character and capability of the investor (overseas person), and entities that control the investor, to determine whether they are suitable to make the investment. The overseas person and all individuals with control of the overseas person must meet the investor test.

Benefit to New Zealand Test

The Benefit to New Zealand test is met where:

• the overseas investment will, or is likely to, benefit New Zealand (or any part of it or group of New Zealanders); and
• if the relevant land is, or includes, residential land, the relevant Ministers are satisfied that the conditions imposed on the consent will be, or are likely to be, met.

The following factors are taken into account when determining whether the test is met: economic benefits, benefits to the natural environment, public access, protection of historic heritage, advancing a significant government policy, oversight or participation by New Zealanders, consequential benefits.

National Interest Test

Under the National Interest Test, consent will only be granted where the Minister of Finance considers that it is not contrary to the national interest of New Zealand. This is a broad discretion, but factors taken into account include:

• national security, public order, and international relations;
• competition, market influence, and the economy;
• economic and social impact;
• alignment with New Zealand’s values and interests; and
• the character of the investors.

Special Forestry Test

Under the Special Forestry Test, investors are required to you are required to:

• use the land exclusively, or nearly exclusively, for forestry activities;
• replant after harvesting, unless they are exempt; and
• not live on the land.

The investor also needs to implement and maintain certain arrangements for the land, including for public access.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Merger filing in New Zealand is voluntary, however it is illegal to make an acquisition results, or is likely to result, in a substantial lessening of competition in a market in New Zealand without first obtaining approval from the New Zealand Commerce Commission).

9) Is there a general definition of transactions subject to merger control?

New Zealand's merger control regime only applies to the acquisition of "assets of a business" or shares.  The phrase “assets of a business” is not defined in the Commerce Act and, therefore, potentially can include any asset owned by a business.

The New Zealand Commerce Commission's approach does not change in situations where a party is only acquiring some assets of a business. The New Zealand Commerce Commission will still consider whether the acquisition of those assets could have the effect or likely effect of substantially lessening competition.  For such an effect to arise, it is typically necessary for the acquisition to involve the transfer of assets that are sufficient in scope to be capable of being operated independently to create a trading activity.

The transfer of the benefit of the operation (i.e. goodwill), the ability to engage in activities (e.g. licenses), the transfer of intellectual property which is recognized by customers (e.g. trademarks), or a vendor's obligation to ensure the new business owners can maintain its customers and knowledge base (e.g. transfer of know-how or customer lists) are all factors that are indicative of a transfer of trading activity that would be subject to the merger control regime.

10) Is "change of control" of a business required?

No, change of control is not required for an acquisition of assets of a business or shares to be subject to New Zealand's merger control regime. However, change of control is relevant in the context of special rules (in section 47A-D of the Commerce Act) that apply to acquisitions by overseas persons of a controlling interest in a New Zealand body corporate through the acquisition outside of New Zealand of assets of a business or shares.  (See further topic 21 below). 

11) How is “control” defined?

There is no definition of "control" for New Zealand's general merger control.  Rather, the Commerce Act simply considers whether the acquisition of "assets of a business" or shares is capable of having the effect or likely effect of substantially lessening competition in a market (irrespective of whether that is a controlling or minority interest).

For the purposes of the more specific regime in sections 47A-D of the Commerce Act, which applies to acquisitions by overseas persons outside New Zealand, a "controlling interest" is defined to be control of the board or 20% of the voting rights, issued shares or dividend entitlements.

12) Acquisition of a minority interest

Minority interests are also caught by the merger control rules. 

13) Joint ventures/joint control – which transactions constitute mergers?

Only joint ventures which involve the acquisition of business assets or shares will be assessed under the merger control regime. This could include, for example, a transfer of assets into an existing JV, or the transfer of shares in a greenfields JV to the founding partners.

Other aspects of a joint venture relationship, such as ongoing collaboration through the joint venture, are analysed pursuant to Part 2 of the Commerce Act, which deals with restrictive trade practices generally.

Part 2 of the Commerce Act applies to unincorporated joint ventures ie those created by contract rather than by acquisition. The Part 2 provisions can be highly technical in their application to joint ventures so specialist legal advice is also recommended when forming joint ventures other than by acquisition.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

There are no thresholds for determining filing in New Zealand. The merger control regime is voluntary, and it is up to the merging parties as to whether they file notification (subject to the caveat that it is illegal to make an acquisition that is, or is likely to, result in a substantial lessening of competition in a market in New Zealand without first obtaining approval from the New Zealand Commerce Commission).

b) Market share thresholds

Not strictly applicable. However, by way of guidance only, the New Zealand Commerce Commission has two indicators where it considers a merger is less likely to raise competition concerns, and where notification is less likely to be advisable:

• where post-merger the three largest firms in the market have a combined market share of less than 70%, and the merged firm’s market share is less than 40%; and/or
• where post-merger the three largest firms in the market have a combined market share of 70% or more, and the merged firm’s market share is less than 20%.

However, these are merely indicators rather than formal safe harbours.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

N/A

16) Rules on calculation and geographical allocation of turnover

N/A

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

All mergers are assessed on a case-by-case basis, as and when they occur, and evaluated independently of each other (albeit that one potential transaction could impact the New Zealand Commerce Commission's assessment of the competitive effect of another potential transaction – for example, if both transactions have impacts on the same or related markets).

19) Temporary change of control

Mergers are assessed only on the basis of whether they are likely to substantially lessen competition in a market in New Zealand. For a lessening of competition to be regarded as substantial, the Commerce Commission has previously noted that the market impact has to be material and able to be sustained for a material period (typically at least two years). Temporary changes of control are unlikely to meet this threshold.

20) Special industries, owners or types of transactions

There are no such exemptions. All mergers are subject to analysis on the basis of whether they are likely to substantially lessen competition in a market.

21) Transactions involving only foreign businesses (foreign-to-foreign)

Pure foreign-to-foreign mergers with no impact on a market in New Zealand are outside of the New Zealand New Zealand Commerce Commission's jurisdiction.

No business (foreign or otherwise) is obligated to notify the New Zealand Commerce Commission. Foreign businesses engaging in a merger may wish to notify the New Zealand Commerce Commission if they consider there is a risk that the merger will substantially lessen competition in a New Zealand market.

Although the New Zealand Commerce Commission's jurisdiction is limited to New Zealand, under section 47A of the Commerce Act 1986 the New Zealand Commerce Commission may apply to the High Court for a declaration where it considers that an "overseas person" has (directly or indirectly) acquired a controlling interest in a New Zealand body corporate. “Controlling interest” is defined to be control of the board or more than 20% of the voting rights, issued shares or dividend entitlements. An “overseas person” means either an individual or body corporate who is neither resident nor carrying on business in New Zealand.

The declaration may be granted where the Court considers such an acquisition of that controlling interest has, or is likely to have, the effect of substantially lessening competition in a market in New Zealand.

The granting of a declaration allows the New Zealand Commerce Commission to apply to the High Court for an order requiring the New Zealand body corporate in which the overseas person has acquired the controlling interest to: i) cease carrying on business in New Zealand in the market to which the declaration relates; ii) dispose of shares or other assets specified by the court; or ii) take any other action that the High Court considers is consistent with the purpose of the Commerce Act.

22) No overlap of activities of the parties

There is no exemption for mergers between parties that do not have overlapping activities. The New Zealand Commerce Commission has previously investigated mergers between firms operating at different levels of the supply chain (vertical mergers) or that supply different, albeit related, products (conglomerate mergers).

23) Other exemptions from notification duty even if thresholds ARE met?

There are no thresholds and New Zealand's merger control regime is voluntary. It is up to the merging parties whether to file a merger notification with the New Zealand Commerce Commission (subject to the caveat that it is illegal to make an acquisition that is, or is likely to, result in a substantial lessening of competition in a market in New Zealand without first obtaining approval from the New Zealand Commerce Commission).

24) May a merging party file voluntarily even if the thresholds are not exceeded?

New Zealand's merger control regime is voluntary. Therefore, a merging party can choose to notify the New Zealand Commerce Commission of any transaction. However, if no notification is made and the New Zealand Commerce Commission considers the merger gives rise to competition issues, it may open an investigation pre-or post-closing.

Because of this, the New Zealand Commerce Commission operates an informal ‘courtesy letter’ process, where parties can informally notify the New Zealand Commerce Commission of an anticipated merger. This allows the New Zealand Commerce Commission to make initial enquiries and informally indicate whether or not it considers the parties should formally apply for clearance. If it does not encourage the parties to formally apply for clearance, it typically reserves the right to nevertheless investigate if circumstances change, it receives complaints or it considers it has been misled, but in practice this is rare.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

New Zealand's merger control regime is voluntary. The New Zealand Commerce Commission cannot require parties to apply for clearance. However, it can encourage the parties to voluntarily apply for clearance (for anticipated mergers only). If clearance is not sought, the New Zealand Commerce Commission can apply to the High Court for an interim injunction to prevent a merger from closing while it investigates.

If the New Zealand Commerce Commission considers a merger is likely to substantially lessen competition, it can apply to the High Court for a permanent injunction preventing the merger (for anticipated mergers) or for financial penalties and/or divestments (for completed mergers).

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

There is no specific deadline, but if merging parties choose to file, a merger notification must be filed before an unconditional agreement has been concluded. Specifically, the agreement must be conditional on obtaining clearance from the New Zealand Commerce Commission (either expressly or as part of a global condition), as the New Zealand Commerce Commission has consistently held (albeit that there is no precedent on the matter) that it does not have power to grant clearance for a merger (even if not completed) that is not conditional upon receiving clearance.

31) Pre-notification consultations

The New Zealand Commerce Commission encourages pre-notification consultations. The New Zealand Commerce Commission expects a substantially developed draft application to be provided, alongside supporting documents, at least a week prior to pre-notification consultations. The main purpose of a pre-notification consultation and provision of a draft application is to expedite the consideration of an application for clearance if and when it is filed by informing the New Zealand Commerce Commission of any complex/unfamiliar markets, clarifying what information and evidence the New Zealand Commerce Commission is likely to require and reducing the need for further information requests and extensions.

The statutory deadlines for the New Zealand Commerce Commission's investigation will only start to run from the date the formal submission is accepted and registered.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules in relation to public takeover bids or acquisitions on stock exchanges. Public takeover bids (implemented either as takeovers or via a scheme of arrangement) can be made conditional on New Zealand Commerce Commission clearance.

33) Forms available for completing a notification

Applications for clearance and authorization must include the information set out in the New Zealand Commerce Commission's prescribed application forms.

Merger clearance application form

Merger authorisation application form

34) Languages that may be applied in notifications and communication

English or Te Reo Māori.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

1. the final or most recent versions of any documents bringing about the merger, such as the sale and purchase agreement (draft or executed version) and ancillary agreements;
2. documentation in the applicant's possession which has been prepared for, seen or considered by senior management or the board of directors and; either (i) sets out the rationale for the merger, assesses or analyses the merger with respect to competitive conditions, competitors, potential for sales growth or expansion; or (ii) within the last two years, sets out the competitive conditions, market conditions, market shares, competitors or the applicants business plans in relation to the relevant products or services;
3. copies of or links to the merging parties' most recent annual reports, audited financial statements and management accounts;
4. a non-confidential version of the notification (to be published on the New Zealand Commerce Commission website)
5. a schedule explaining the basis for confidentiality claims in the notification;
6. a signed declaration by each applicant; and
7. proof of payment of the applicable filing fee.

36) Filing fees

The filing fee for merger clearances is NZD $3,680, including GST.  The filing fee for merger authorisations is NZD $36,800, including GST.  

37) Is implementation of the merger before approval prohibited?

No, implementation itself is not prohibited because New Zealand's merger control regime is voluntary and parties do not have to apply for clearance. However, if parties proceed with implementation without obtaining clearance or authorization, the New Zealand Commerce Commission can investigate. If the New Zealand Commerce Commission considers that the merger is likely to substantially lessen competition, it can bring legal proceedings seeking divestments and/or pecuniary penalties.

38) May the parties get permission to implement before approval?

If the merging parties choose to file for approval (either clearance or authorisation) from the New Zealand Commerce Commission, they legally remain free to implement the merger whenever they wish to, even prior to obtaining approval, provided the acquisition does not have the effect or likely effect of substantially lessening competition in a market.

However, the New Zealand Commerce Commission only has power to grant approval prior to implementation. If mergers are implemented before approval is given, the New Zealand Commerce Commission will consider the application withdrawn and will not make a determination. It can continue investigating, however.

If the New Zealand Commerce Commission considers that the merger is likely to substantially lessen competition, it can bring legal proceedings seeking divestments and/or pecuniary penalties.

39) Due diligence and other preparatory steps

Due diligence should be conducted in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger. Information shared without proper protections in place increases the risk of merger parties reaching agreements that could breach the restrictive trade practices prohibitions (including the prohibition on cartel conduct in a merger between competitors) in Part 2 of the Commerce Act.

There are no guidelines on what may be considered acceptable preparatory steps, and in each case these will be assessed under the restrictive trade practices prohibitions (including the prohibition on cartel conduct in a merger between competitors) of the Commerce Act.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.  Clauses aimed at preserving the target's value are generally acceptable, however ordinary course of business clauses should not be drafted in a manner that is too specific, and should not oblige either party to obtain approval for ordinary commercial conduct.

41) Implementation outside the jurisdiction before approval – "Carve out"

The New Zealand Commerce Commission considers that it only has the jurisdiction to grant approval for mergers that have not been completed and that remain conditional upon receipt of such approval.  Depending on the nature of the merger and the business operations, it may be possible to structure the merger to "carve out" the New Zealand business pending receipt of New Zealand approval.  This is a technical area, and parties are advised to discuss any potential "carve out" with New Zealand counsel as early as possible.

42) Consequences of implementing without approval/permission

Due to New Zealand's voluntary notification regime there is no penalty for failing to notify.

However, if the parties do not notify the New Zealand Commerce Commission and the New Zealand Commerce Commission subsequently forms the view that the acquisition does give rise to competition issues, it can bring proceedings against the parties and seek pecuniary penalties and/or divestments in the High Court.

43) Phases and deadlines

The New Zealand Commerce Commission has a statutory timeframe of 40 working days in which to decide to grant or decline clearance (see topic 45 with respect to merger authorisation applications). However, the Commission can (and often does) request time extensions from merging parties, and indeed it is necessary to do so where mergers move to the Statement of Issues and Statement of Unresolved Issue phases (see below). It is in the interests of merging parties to grant requests for extensions. If they do not and time expires, the merger is deemed to be declined. There are no limits to the number, or length, of time extensions that can be agreed. For this reason, the duration/deadlines below are indicative only.

Working days exclude public holidays and any day in the period commencing 25 December and ending 15 January the following year.

44) Tests or criteria applied when a merger is assessed

Under section 66(3)(a) of the Commerce Act, the New Zealand Commerce Commission shall grant clearance of a merger “if it is satisfied that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market” in New Zealand.

A range of factors may be taken into consideration, including whether one of the parties is likely to fail as an independent business (failing firm defense). It may also consider efficiencies that may be gained from the merger (efficiency defence), although this is very rare in the clearance process. However, merger parties may apply for authorization of their merger (a separate process) and the New Zealand Commerce Commission shall grant authorization where it is satisfied that the likely public benefits (efficiencies) of the merger outweigh the likely detriments arising from a lessening of competition. See topic 45.

45) May any non-competition issues be considered?

No, the New Zealand Commerce Commission may not consider non-competition issues such as national security.

Non-competition issues are not relevant in the clearance context, however, for an authorisation application (where the parties submit that any detriments arising from a substantial lessening of competition are outweighed by public benefits resulting from the merger), the evaluation of public benefits may be extended from economic efficiencies to include anything of value to the community generally e.g. national security and environmental considerations.

Parties to such mergers must apply to the New Zealand Commerce Commission in advance of entering into an unconditional agreement, as authorisation cannot be granted retrospectively.

The process is similar to applying for merger clearance: parties must file an application with the New Zealand Commerce Commission, which will assess whether the anti-competitive harms resulting from the merger are outweighed by public benefits. There is no indicative timeframe for straightforward assessments, however for complex cases the New Zealand Commerce Commission indicates that it aims to publish a draft determination following its initial investigation at around 45-55 working days. Parties (including third parties) can then make submissions and cross-submissions. A conference for interested parties is held if the New Zealand Commerce Commission considers the process will assist its investigations. The indicative timeframe for a final determination for complex cases is after 90 working days.

46) Special tests or criteria applicable for joint ventures

For structural (incorporated) joint ventures, the substantive assessment is the same as for other mergers.

Non-structural joint ventures are analysed pursuant to Part 2 of the Commerce Act, which deals with restrictive trade practices generally. The Part 2 provisions can be highly technical in their application to joint ventures so specialist legal advice is also recommended when forming joint ventures other than by acquisition.

47) Decisions and remedies/commitments available

The New Zealand Commerce Commission may either grant clearance, grant clearance subject to divestments or decline to grant clearance. Because New Zealand’s merger control regime is voluntary, in the event of a decline it remains open to the parties to proceed with their merger, but in this case there is a substantial risk that the New Zealand Commerce Commission would seek an injunction to prevent the merger.

Parties are free to approach the New Zealand Commerce Commission about potential divestments at any time, including during pre-notification discussions (so-called "up-front" divestments).

Commitments may only be structural and are submitted by way of a unilateral undertaking from the merger parties to the New Zealand Commerce Commission. Merger parties typically have 6-12 months to complete divestments.

If the merger parties do not comply with the terms of the divestment undertaking contained in the approval, the clearance is void and has no effect from the date it was given.

If a merger has been implemented without clearance being granted, the New Zealand Commerce Commission may open an investigation. The New Zealand Commerce Commission has two years to bring court proceedings seeking divestment, and three years to bring proceedings seeking penalties.

48) How and when will details about the merger be published?

The New Zealand Commerce Commission will make a public announcement when it has formally registered a merger notification and again when a decision has been taken. It will also publicly announce if its review is moving to the more in-depth Statement of Issues or Statement of Unresolved Issues phases. A non-confidential version of the determination is published on the New Zealand Commerce Commission’s website, although the time taken for publication can vary considerably.

Timing (but not content) of announcements will be coordinated with the merger parties. To protect business secrets, the parties are requested to provide a non-confidential version of the clearance application with the notification and to identify any confidential information in the notification and the final decision.

49) Access to the file for the merging parties and third parties

The merging parties:

There is no specific standalone right of access to the New Zealand Commerce Commission's internal documents and correspondence. Rather, the New Zealand Commerce Commission will communicate potential concerns to merger parties through the publication of Statement of Issues and Statement of Unresolved Issues documents, which contain references to underlying evidence. Submissions on these documents (and cross-submissions) are uploaded to the New Zealand Commerce Commission's website, with any confidential information redacted.

The New Zealand Commerce Commission is also subject to New Zealand's general freedom of information legislation (the Official Information Act 1982) and must consider requests for information under this legislation. It may also release information to parties where it determines that this is necessary to meet the requirements of natural justice.

Where information is confidential and is not disclosed to the merger parties themselves, the Commission may release it on a counsel-only basis to the parties’ advisors.

Third parties:

Third parties do not have a right to access the file, however third parties will have access to the same documents, published on the New Zealand Commerce Commission’s website, as the merger parties.

Third parties can also make requests under the Official Information Act, and the Commission has in the past released confidential information to third parties’ advisors on a counsel-only basis, to assist them in making submissions on the merger.

50) Who can appeal and what may be appealed?

New Zealand Commerce Commission decisions can be appealed to the High Court. The Act gives a right of appeal in respect of any decision made by the New Zealand Commerce Commission under the Act and, depending on the decision, is available to a broad range of parties. 

Persons entitled to bring an appeal are:

• the applicant;
• the target; and
• in the case of authorisations, any person with a direct and significant interest in the application and who participated in the NZCC's process leading up to the determination.

The court on appeal can confirm, modify or reverse the New Zealand Commerce Commission's determination or any part of it or exercise any of the powers that could have been exercised by the New Zealand Commerce Commission. The court can also direct the New Zealand Commerce Commission to reconsider, either generally or in respect of specified matters, the whole or a specified part of the matter to which the appeal relates. Parties can subsequently apply for leave to appeal to the Court of Appeal and the Supreme Court. Appeals may be made to the High Court by giving notice of appeal within 20 working days after the date of the NZCC’s determination, or within such further time as the Court allows. Such appeals proceed by way of rehearing.

Any person with sufficient interest in the case may also seek judicial review in the High Court of a decision by the New Zealand Commerce Commission. This is not an appeal of the substance of the decision, but a review of the decision-making process.