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Commerce Act 1986

Authorisations and clearances - Restrictive trade practices

65A: Commission may give clearances relating to cartel provisions

You could also call this:

"The Commission can say yes to plans that might break cartel rules if they're fair and won't hurt others."

Illustration for Commerce Act 1986

You can apply to the Commission for a clearance if you want to do something that might be against the rules about cartels. This can include entering into a contract or arrangement, arriving at an understanding, or giving a covenant that might contain a cartel provision. You need to ask the Commission for permission first.

The Commission will give you a clearance if they are satisfied that you and the other parties are working together on a project, and the cartel provision is necessary for that project. They also need to be sure that what you are doing will not reduce competition in a market. This means that what you are doing should not make it harder for others to compete with you.

If the Commission does not make a decision within 30 working days, they are deemed to have declined your application, unless you have agreed on a different timeframe with them, as set out in section 60(2)(a). You can find more information about this process by reading the relevant legislation. The Commission's decision is based on the information you provide in your application.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM7415570.

Topics:
Business > Fair tradingMoney and consumer rights > Consumer protection
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65AE: Repeal of sections 65AA to 65AE, or

"Some old rules (65AA to 65AE) are no longer part of the Commerce Act 1986 law."

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65B: Effect of clearance under section 65A, or

"Getting a clearance under section 65A means you won't break the law with certain contracts or agreements."

Part 5Authorisations and clearances
Restrictive trade practices

65ACommission may give clearances relating to cartel provisions

  1. A person who proposes to do any of the following may apply to the Commission for a clearance under this section:

  2. enter into a contract or an arrangement that contains, or may contain, a cartel provision:
    1. arrive at an understanding that contains, or may contain, a cartel provision:
      1. give, or require the giving of, a covenant that contains, or may contain, a cartel provision.

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

        2. the applicant and any other party to the proposed contract, arrangement, understanding, or covenant are or will be involved in a collaborative activity; and
          1. every cartel provision in the contract, arrangement, understanding, or covenant is reasonably necessary for the purpose of the collaborative activity; and
            1. the following will not have, or would not be likely to have, the effect of substantially lessening competition in a market:
              1. entering into the contract or arrangement:
                1. arriving at the understanding:
                  1. giving, or requiring the giving of, the covenant:
                    1. giving effect to any provision of the contract, arrangement, understanding, or covenant.

                    2. 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.

                    3. 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.

                    Notes
                    • Section 65A: inserted, on , by section 17 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
                    • Section 65A(1): replaced, on , by section 33(1) of the Commerce Amendment Act 2022 (2022 No 11).
                    • Section 65A(2)(a): amended, on , by section 33(2) of the Commerce Amendment Act 2022 (2022 No 11).
                    • Section 65A(2)(b): amended, on , by section 33(2) of the Commerce Amendment Act 2022 (2022 No 11).
                    • Section 65A(2)(c): replaced, on , by section 33(3) of the Commerce Amendment Act 2022 (2022 No 11).