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

     Section 47 extends to all acquisitions of shares or assets regardless of the size of the transaction. The term “assets” is defined broadly and, according to the 2013 Guidelines includes goodwill; patent rights and other intellectual property; contractual rights, such as options, franchises or some management contracts; operational know-how; and customer lists. …

Concept of concentration

     Section 47 extends to all acquisitions of shares or assets regardless of the size of the transaction. The term “assets” is defined broadly and, according to the 2013 Guidelines includes goodwill; patent rights and other intellectual property; contractual rights, such as options, franchises or some management contracts; operational know-how; and customer lists.

Initially, Section 47 of the Commerce Act prohibited mergers and acquisitions to the extent that such acquisitions created or strengthened a dominant position in the market. As amended in 2001, the current standard for determining whether a merger or acquisition is prohibited is whether it substantially lessens competition in a market. Further guidance is available from the Commission's Mergers and Acquisitions Guidelines of July 2013 which were amended in May 2022. The New Zealand Parliament has expressed the desire that the interpretation of Section 47 mirror that of Section 50 of the Australian Trade Practices Act.

Despite the absence of thresholds in the Commerce Act, the Commission Guidelines of 2022 developed a “safe harbor” according to which a transaction is not likely to substantially lessen competition where:

- the concentration ratio of the top three firms is below 70% and the market share of the merged entity is less than 40%;

- the concentration ratio of the top three firms is above 70% and the market share of the merged entity does not reach 20%.

In determining the relevant market, the Commission takes into account five dimensions: product dimension, supply-chain level, geographic scope, customer dimension and temporal dimension. Both demand side and supply side factors are generally considered.

Having defined the relevant market, the Commission then examines the market share of existing competitors. When evaluating anticompetitive effect the Commission will look to factors such as actual and potential competition to see whether it is a sufficient constraint on market power. The Commission also examines other competition factors such as the elimination of a vigorous and effective competitor; the countervailing power of buyers or suppliers; and the scope for efficiencies.

If the Commission concludes that a merger that substantially lessens competition is likely to generate public benefits that will outweigh any anticompetitive detriment, it has the authority to authorize the merger.

Global Competition Law

1156. Concept of concentration

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Les notions juridiques connexes

1156. Concept of concentration

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