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Commerce Act 1986

Restrictive trade practices - Misuse of market power

36A: Misuse of market power in trans-Tasman markets

You could also call this:

"Don't use your market power to stop others competing with you in New Zealand or Australia."

Illustration for Commerce Act 1986

If you have a lot of power in a market in New Zealand, Australia, or both, you must not do things that stop others from competing with you. This means you cannot engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market. You are not allowed to do this in any market in New Zealand where you have a lot of power, except for markets that only sell services.

When we talk about having a lot of power in a market, it means you have a substantial degree of power in that market, either on your own or together with other people or companies you are connected to. A market is a place where people buy and sell goods or services, and it can also include other goods or services that people can use instead.

You should know that this rule does not change what is said in section 36, it just adds to it.

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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=DLM88284.

Topics:
Business > Fair tradingMoney and consumer rights > Consumer protection
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36: Misuse of market power, or

"Don't use your market power to stop others from competing with you fairly."

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36B: Purposes may be inferred, or

"Figuring out what someone wants to achieve from their actions"

Part 2Restrictive trade practices
Misuse of market power

36AMisuse of market power in trans-Tasman markets

  1. Subsection (2) applies if 1 or more of the following applies to a person:

  2. the person has a substantial degree of power in a market in New Zealand:
    1. the person has a substantial degree of power in a market in Australia:
      1. the person has a substantial degree of power in a market in New Zealand and Australia.

        1. The person must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—

        2. a market in New Zealand in which the person has a substantial degree of power (if any) and that is not a market exclusively for services; or
          1. any other market in New Zealand, not being a market exclusively for services, in which the person, or an interconnected person,—
            1. supplies or acquires, or is likely to supply or acquire, goods or services; or
              1. supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.

              2. In this section, a person has a substantial degree of power in a market if—

              3. the person has a substantial degree of power in the market; or
                1. the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
                  1. 1 or more interconnected persons of the person have a substantial degree of power in the market; or
                    1. 2 or more interconnected persons together have a substantial degree of power in the market.

                      1. In this section, market means a market for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.

                      2. Section 36A does not limit section 36.

                      Notes
                      • Section 36A: replaced, on , by section 17 of the Commerce Amendment Act 2022 (2022 No 11).