Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Most cases are opened by a leniency application. The NZCC defined the criteria according to which it will exercise its discretionary assessment on whether or not to open an investigation. Such decision depends on: i) the extent of detriment arising from the conduct at stake; ii) the seriousness of the conduct; and iii) the public interest. When carrying out inquiries, the Commission may issue writ …

Complaints and investigations

Most cases are opened by a leniency application. The NZCC defined the criteria according to which it will exercise its discretionary assessment on whether or not to open an investigation. Such decision depends on: i) the extent of detriment arising from the conduct at stake; ii) the seriousness of the conduct; and iii) the public interest. When carrying out inquiries, the Commission may issue written notices requiring information or specific documents to be supplied within a certain prescribed period or a person to appear before the Commission to give oral or written evidence or produce specified information (Section 98).

Further, pursuant to a warrant issued by the Commission, one of its employees may conduct a search of any place designated in the warrant to ascertain whether any person has engaged in or is engaging in any conduct that constitutes or may constitute a violation of the Commerce Act (Section 98A)

On 16 December 2015, the NZCC published its Competition and Consumer Investigation Guidelines, whose purpose is to help undertakings facing an investigation, complainants or lawyers to understand how the NZCC investigates and what can be expected during an investigation.

In addition, New Zealand passed the Commerce (International Co-operation, and Fees) Amendment Act on 23 October 2012, giving the NZCC powers to assist overseas regulators in their investigations. The Act enables the NZCC to provide compulsorily acquired information about suspected anticompetitive behavior to its overseas counterparts. However, before information is shared, the regulators must enter into and publish a cooperation arrangement. As soon as practicable after providing the information, the NZCC must notify the person from whom the information was acquired that the information has been provided, except in particular cases, inter alia where giving notice might compromise the investigation conducted, or to be conducted, by the Commission or any overseas regulator.

    Section 60 et seq. outlines the procedure for investigating an application for authorization of an otherwise restricted trade practice. The Commission maintains a register of applications for authorization. In making its investigation, the Commission considers submissions made to it by the applicant or any other person. A draft determination is provided to the applicant and other interested parties. The recipients of the draft determination are permitted, within 10 days of receipt, to seek a pre-decision conference, to be held not later than twenty days thereafter. The Commission then makes a determination in writing, granting or declining the application, and setting forth its reasons. Authorization may be revoked if there is a material change in circumstances or there has not been compliance with a condition of authorization.   

Authorization proceedings

  After carrying out an investigation, the NZCC has a number of potential remedies, for example handing the parties a compliance advice letter in the case of a possible but not serious harm to competition, giving warnings, settling the case, issuing cease and desist orders or seeking an enforcement action through the courts (inter alia, injunctions and/or pecuniary penalties). In deciding which remedy to apply, the Commission uses the same assessment criteria as those implemented for determining whether or not to launch investigations.

  Under the 2001 amendments to the Commerce Act the NZCC may take cease and desist orders. The Act provides for two lawyers to be appointed to the Commission for the sole purpose of hearing and determining applications for cease and desist orders granted pursuant to Sections 74A to 74C. Such orders may be issued only after serving of notice and an opportunity to be heard is given the parties concerned.

  The recipient has an opportunity to access relevant information held by the Commission and make written submissions. The recipient may choose to consent to the terms of the proposed order or having the matter decided following the holding of a hearing. If a hearing is held, the person against whom an order is sought has an opportunity to appear and give evidence, cross-examine witnesses and be represented by counsel.

Proceedings before the NZCC

   Where necessary, the Commission may seek an injunction from the High Court. The Court may order an interim injunction restraining a person from engaging in conduct infringing the Commerce Act pending a full hearing of the case (Section 88) and in this respect, must consider the interests of consumers.

Global Competition Law

1147. Complaints and investigations

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Les notions juridiques connexes

1147. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise