As the year draws to a close, we share some highlights and changes that you might have missed as well as some of our insights on what 2024 will have in store for competition law in New Zealand.
2023 competition highlights
- The new misuse of market power test came into effect in New Zealand on 5 April 2023. Persons with substantial market power are now prohibited from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition in the market they have substantial market power in, or any other market they indirectly supply or acquire goods or services.
- These changes saw the repeal of the Intellectual Property exceptions. Statutory IP rights are now subject to the same competition tests as other property rights and existing agreements must be compliant by 5 April 2024.
- Cartel conduct now extends to land covenants, in line with the IP amendments, existing agreements must be compliant by 5 April 2024. There are specials rules for “certain grocery related covenants”.
- The Grocery Industry Competition Act 2023 came into effect on 10 July 2023 followed by the Grocery Supply Code on 28 September 2023
- The Commerce Commission (NZCC) filed the first criminal charges for a cartel against two construction companies and two directors on 12 December 2023.
- On 14 December 2023 Foodstuffs North Island and Foodstuffs South Island (2 of the 3 “regulated grocery retailers”) applied for NZCC clearance to merge.
NZCC guidance
In 2023 the NZCC published:
- Business collaboration in response to an emergency guidance on 22 March
- Misuse of Market Power Guidelines on 29 March
- Guidelines on the Application of Competition Law to Intellectual Property Rights on 6 April
- Collaboration and Sustainability Guidelines on 4 December
What to expect in 2024
- The market study into Personal Banking Services will have a draft report being released on the 4 March 2024 with the final report being published on the 20 August 2024
- The first criminal cartel prosecution, which was filed earlier this month will continue against the currently unnamed construction companies and their directors, that allegedly took part in bid-rigging. This will be a landmark proceeding for New Zealand as such, will be subject to much scrutiny
- Now that the application has been lodged, the proposed Foodstuffs grocery merger will be considered by the NZCC early next year. The clearance process is a public one. We expect the Statement of Preliminary Issues to be issued around 15 January next year. As a “complex merger” this process may extend to “phase 2”.
Thank you
Thank you again to our clients and colleagues for your support. We remain committed to providing technically excellent pragmatic advice. We have exciting developments that we’ll announce next year. Congratulations to our colleagues Glenn Shewan (Bell Gully) and Andy Matthews for recently being ranked by Who’s Who Legal as the “Thought Leaders – Competition – New Zealand”.