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Commerce Act 1986

Authorisations and clearances - Restrictive trade practices

61: Determination of applications for authorisation of restrictive trade practices

You could also call this:

"How the Commission decides if a company can do something that might limit trade competition"

Illustration for Commerce Act 1986

When you apply for something called an authorisation under section 58, the Commission must make a decision in writing. They can either grant you the authorisation or decline your application. The Commission's decision must be made within 120 working days.

The Commission can grant an authorisation with conditions that are not against this Act. They can also decide how long the authorisation will last. You can make submissions to the Commission about your application, and they must take these into account.

Before making a decision, the Commission must follow the rules in section 62. They must also write down their reasons for making the decision. The Commission cannot grant an authorisation unless they think it will benefit the public more than it will lessen competition.

If the Commission is considering an application under section 58(6B) to (8), they must think about whether the application will benefit the public. They do not need to decide if a particular provision is a cartel provision, as long as there are reasonable grounds to believe it might be. The Commission's decision will depend on what they think is best for the public.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM89045.

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"How to apply for permission to do something that might limit trade with others"

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Part 5Authorisations and clearances
Restrictive trade practices

61Determination of applications for authorisation of restrictive trade practices

  1. The Commission must, in respect of an application for an authorisation under section 58, make a determination in writing—

  2. granting such authorisation as it considers appropriate:
    1. declining the application.

      1. If authorisation is not granted within 120 working days after the date on which the application is registered, the Commission is deemed to have declined the application, subject to any alternative timetable agreed between the Commission and the applicant.

      2. Any authorisation granted pursuant to section 58 may be granted subject to such conditions not inconsistent with this Act and for such period as the Commission thinks fit.

      3. The Commission must take into account any submissions in relation to the application made to it by the applicant or by any other person.

      4. The Commission must state in writing its reasons for a determination made by it.

      5. Before making a determination in respect of an application for an authorisation, the Commission must comply with the requirements of section 62.

      6. The Commission must not make a determination granting an authorisation relating to an application under section 58(1) to (6A) unless it is satisfied that—

      7. the entering into of the contract or arrangement or the arriving at the understanding; or
        1. the giving effect to the provision of the contract, arrangement or understanding; or
          1. the giving or the requiring of the giving of the covenant; or
            1. the carrying out or enforcing of the terms of the covenant; or
              1. engaging in the conduct—
                  1. as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in a benefit to the public which would outweigh the lessening in competition that would result, or would be likely to result therefrom.

                1. For the purposes of subsection (6), a lessening in competition includes a lessening in competition that is not substantial.

                2. Repealed

                3. The Commission must not make a determination granting an authorisation relating to an application under section 58(6B) to (8) unless it is satisfied that the following matter to which the application relates will in all the circumstances result, or be likely to result, in such a benefit to the public that the matter should be permitted:

                4. entry into the contract or arrangement, or arriving at the understanding:
                  1. giving, or requiring the giving of, the covenant:
                    1. giving effect to the provision of the contract, arrangement, understanding, or covenant:
                      1. engaging in the practice of resale price maintenance:
                        1. the act or conduct.

                          1. For the purposes of section 58(6B) to (6D) and subsection (8)(a) to (c), 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 that it might be.

                          Notes
                          • Section 61(1A): inserted, on , by section 15(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
                          • Section 61(1): amended, on , by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(3): amended, on , by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(4): amended, on , by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(5): amended, on , by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(6): amended, on , by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(6): amended, on , by section 29(2) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(6): amended, on , by section 15(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
                          • Section 61(6)(d): amended, on , by section 29(3) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(6)(e): inserted, on , by section 29(4) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(6A): inserted, on , by section 4 of the Commerce Amendment Act 1996 (1996 No 113).
                          • Section 61(7): repealed, on , by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
                          • Section 61(8): replaced, on , by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).
                          • Section 61(9): inserted, on , by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).