New Zealand Acts

COMMERCE (CARTELS AND OTHER MATTERS) AMENDMENT ACT 2017 - SECT 17

17 New sections 65A to 65D inserted

The following sections are inserted after section 65 :

65A Commission may give clearances relating to cartel provisions

1 A person who proposes to enter into a contract or arrangement, or arrive at an understanding, that contains, or may contain, a cartel provision may apply to the Commission for a clearance under this section.

2 The Commission must give a clearance under this section if it is satisfied that—

a) the applicant and any other party to the proposed contract, arrangement, or understanding are or will be involved in a collaborative activity; and

b) every cartel provision in the contract, arrangement, or understanding is reasonably necessary for the purpose of the collaborative activity; and

c) entering into the contract or arrangement, or arriving at the understanding, or giving effect to any provision of the contract, arrangement, or understanding, will not have, or would not be likely to have, the effect of substantially lessening competition in a market.

3 For the purpose of subsection (2) , it is not necessary for the Commission to determine whether a particular provision is in fact a cartel provision, providing there are reasonable grounds for believing it might be.

4 If clearance is not given within 30 working days after the date on which the application is registered in accordance with section 60(2)(a), the Commission is deemed to have declined to give the clearance, subject to any alternative timetable agreed between the Commission and the person applying for clearance.

65B Effect of clearance under section 65A

The effect of a clearance given under section 65A is that—

a) a party to the contract, arrangement, or understanding to which the clearance relates does not contravene section 27 or 30 by entering into the contract or arrangement, or arriving at the understanding; and

b) a person does not contravene section 27 or 30 by giving effect to any cartel provision in the contract, arrangement, or understanding to which the clearance relates; and

c) section 30C(1) does not apply to any cartel provision in the contract, arrangement, or understanding.

65C Procedures relating to clearances

1 Section 60 (except subsections (2)(c) and (3)) applies to an application for a clearance under section 65A in the same way as it applies to an application for an authorisation made under section 58.

2 Every clearance given under section 65A must be given by way of written notice to the applicant.

65D Revocation of clearances

1 The Commission may revoke a clearance given under section 65A if it is satisfied that—

a) the clearance was given on information that was false or misleading in a material particular; or

b) there has been a material change of circumstances.

2 The Commission must not revoke a clearance unless the person to whom the clearance was given, and any other person who in the opinion of the Commission is likely to have an interest in the matter, is given a reasonable opportunity to make submissions to the Commission and the Commission has had regard to those submissions.