Stick it to them

Our Commerce Commission has just hosted the International Competition Network's annual cartel workshop, on the nowadays typical hybrid online-plus-in-person basis, and it has been a fascinating meeting.

If you're not a competition policy tragic, sticking it to cartels may not ring your bell. You wouldn't be alone. People don't always appreciate the harm they do, and indeed it's not so long ago that cartels were seen as potentially a good idea. In FDR's depression-ravaged America, for example, cartels were actively encouraged: they were thought to be useful as a way of holding up prices when deflation was a macroeconomic problem. Some folks still think that cartels can help businesses through tough times by parceling out the available jobs so that everyone has some sort of income stream to help keep them going.

But these days, competition agencies, rightly, see cartels as an unmitigated evil. Cartels raise prices, ripping everyone off for illicit private commercial gain. They reduce output: think OPEC, which rorts the oil price by agreeing to curb production. And at least one of the four activities that fall under the general heading of 'cartel' - price fixing, market allocation, bid rigging, collective output control - is nothing short of outright commercial fraud. Crooked collusive bidding on tenders is a crime - and a particularly nasty one when it stitches up the likes of medical supplies or essential infrastructure - and the conspirators ought to face the prospect of being banged up with the other fraudsters, as they will when our cartel criminalisation regime goes live next April.

So there are good reasons why competition agencies everywhere want to discover and punish any existing cartels, and hence or otherwise deter new ones from forming.

Trouble is, one of their best weapons may be losing its oomph.

'Leniency', as it's known in the trade, was a Cunning Plan. It destabilised cartels by encouraging cartel members to rat on their mates. The first - and, importantly, only the first - cartelist to dob in the others got 'immunity': the Commerce Commissions of this world wouldn't take any proceedings against them, but would prosecute the rest of the gang. There is other stuff - the initial dobber-in had to continue cooperating with the investigation, for example - but that's the guts. 

The importance of 'only the first' is right out of game theory. If a bit of mistrust starts to bubble up in a cartel - and let's face it, it tends to, as cartelists are always worried that someone will renege and sneak a commercial advantage by undercutting the high price they are supposed to quote - then the 'first in' element sets up a payoff matrix where the first in gets a positive payoff at the others' expense. And there have indeed been real world instances of cartelists racing to be first in the regulators' door. Overall, it's been good at unearthing cartels that mightn't have been found otherwise.

But there is a growing suspicion that cartelists may be opting to stay away from looking for leniency. It doesn't seem to apply to New Zealand - apparently the Commerce Commission has at least 17 leniency applications in, and at the conference we heard that Portugal's authority has eight, which the local folks think is a lot for an economy Portugal's size - but at least in some jurisdictions, notably the EU, the number of leniency applications has dropped off. 

Why? Probably three things most of all. 

One is that the EU has made it easier for private parties to swing in behind the competition regulator and sue for damages: the prospect of megabuck claims across multiple jurisdictions to recover the cartels' overcharging has made cartelists reconsider the leniency matrix of payoffs. Personally I'm all for facilitating people getting back their ill-lost costs, and multiple expensive court cases are exactly what the conspirators deserve (and should have thought of before they started), but realistically you've also got to wonder about the cost to competition enforcement of leniency becoming ineffective. 

The second thing is that it's good to get immunity from a competition authority's civil proceedings and the risk of a big fine, but it's not always as clean a process as it might be for applicants to get immunity from criminal proceedings, where employees risk going to jail (as they have in Australia since 2009, and as they will here from next year). People really worry about that - you would, too - and if the deal doesn't come as a guaranteed combo, people won't buy it.

The third thing is that it's plausible that at least some competition authorities rested on their oars and let leniency do all the cartel detection work. Understandable: leniency was the gift that kept on giving. But, again, it upset the payoff matrix. Now, cartelists started to reckon that if they didn't dob a cartel in, there was sod-all chance that the competition authorities would find it by themselves. The calculus shifted to staying shtum. 

How to turn the tables back in the competition authorities' favour?

You don't have to be a professional game theorist to get to the answer, which is to re-stack the payoff calculus.

One leg is to make the payoff from leniency and immunity more attractive. There's some swallowing of dead rats involved, but there you go. The main moving parts are ironclad civil plus criminal immunity, and probably some form of protection against private claims.

The other leg is to increase competition authorities' independent capability to find cartels. The Commerce Commission's Grant Chamberlain (below) chaired the plenary session on 'Widening the enforcement toolkit - how do we detect cartels going forward without relying on leniency?', and the big takeaway for me was that outreach programmes have a lot of cartel-detecting potential. Go out and about in the community on competition advocacy tours, and you'll find (as one panelist said) that if you talk to people, they tell you things. Funny, that.

Another very promising line of attack is Big Data. Everyone says Big Data will mean this, that or the other for society as a whole: not everyone has connected the dots and realised that in the right hands it could be a powerful anti-cartel tool. I was impressed by Spain's efforts. There is a nationwide Spanish e-platform used for public procurement tenders: their authority cloned it, and devised software to interrogate it for patterns suggestive of bid-rigging. Way to go. 

And one last tool is encouraging whistleblowers, which has had some good results. Me, I'd stack the strategic deck a bit more, and as well as protecting whistleblowers from retaliation, I'd give them a share of the takings from any eventual fines. 

Not that some need much extra motivation. One of the speakers told us of a French example, which involved bid-rigging contracts for upgrading school buildings. The cartelists had an IT guy set up the software to keep track of who got what. Later, almost incredibly, they made him redundant.

His wife dobbed them in.

CLPINZ 2022

Last weekend the 33rd annual Competition Law and Policy Institute of New Zealand (CLPINZ) workshop was held at Simpson Grierson's Auckland offices - many thanks to James Craig and the Simpson Grierson team for use of the impressive facilities. It was once again a hybrid event - effectively standing room only for the 80 or so attending in person, with others attending online - and it increasingly looks like the most effective and flexible way of putting on events like this. One of my mates reports that the digital version worked really well, so hat tip to Shannon Woodward and the team from Conference Innovators for organising everything and to their technical folk for making the linkups work.

CLPINZ attendees hit the coffee, Saturday morning

First up was the keynote speaker, Professor Fiona Scott Morton from the Yale University School of Management: she was a fine presenter, and you could see why she's won teaching awards. Her general theme as per the workshop programme was 'Misuse of market power enforcement', and her presentation (online, from Edinburgh) was titled 'Competition Policy Whiplash'. Her argument was that over the past three or four decades economists, influenced by the 'Chicago School' style of thinking, had retreated more and more from activist anti-trust enforcement and towards deregulation and letting markets rip, whereas the economy, particularly the 'new' economy of tech and platforms, was posing more and more potentially anti-competitive problems. Old school economic thinking, and legal evidentiary standards in the US around an unrealistically high burden of proof, were being danced around by corporate strategies such as 'buy or bury' (acquisition or elimination of nascent competitors, what some call 'killer acquisitions'). Economics, and law, she reckoned, need a rev up to be able to better analyse what's going on (economics) and to be more able to do something about it in a courtroom (law).

Changing the law to better nobble anti-competitive stuff is precisely why we've recently reformulated s36 of our Commerce Act. Ben Hamlin, the commentator on Fiona's paper, had a look at how we're set up to deal with the issues Fiona raised. On the plus side, our s36 looks a more flexible instrument than its US equivalent, partly because "likely effect" leaves room to catch anti-competitive effects that would fall short of the "more likely than not" test in an American court. And our High Court can (and typically does for these s36 cases) have a Lay Member, so there's a better chance that modern economics will get a look in (Ben told us something I didn't know, which was that both the Court of Appeal and the Supreme Court can appoint an economic adviser, which looks like a good option to have). On the down side, when we have tried to ping potentially anti-competitive stuff, it didn't work very well (albeit under the old s36 and before  modern case management), and the Commission is going to have to lift both its investigation and prosecution game if it's going to be effective. And while the 'new' economy gets a lot of focus both overseas and at home (we've got some big tech companies of our own), Ben noted that the decarbonisation challenge posed by climate change is going to pose stiff competition challenges elsewhere, too (eg if a renewables-based electricity generator's market power got a tailwind).

Onwards to 'Setting the bar for collaborative activity workouts', presented by Sarah Keene and commented on by Emma Ihaia of Link Economics. The 'workout' theme referred to the gym involved in the Commerce Commission's decline of the first authorisation of a 'cartel' provision in a collaborative activity (press release here, decision here). Bit of a mouthful, but what's going on is that the Commission can authorise what would otherwise be a no-no - in this case, a gym franchisor setting maximum and minimum membership fees for its individual franchised gyms - if the provision is "reasonably necessary" for the collaboration to work. Several people pointed out that a lot of the evidence in this decision was redacted, and from the outside we're not privy to what the Commission saw, and even without knowing the details, the fact that the gym managed for some years without the provision it wanted authorised rather undercut the argument that it was "reasonably necessary" for the operation to be a commercial goer. That said, it looks distinctly odd that franchises have been caught by the law at all (people, including Sarah in a past life, had argued they shouldn't have been) - and I feel the same way, to my mind they are interconnected parties - and it's equally odd that even the Commission didn't see any anti-competitive harm ("In our Statement of Issues we expressed the preliminary view that competition is unlikely to be substantially lessened by the Proposed Agreement"). But that was moot: falling at the "reasonably necessary" hurdle meant it couldn't be cleared, even if it did no competitive harm. 

Session 3 chaired by Hayden Green of Axiom Economics was 'Insights into the Commission', originally meant to be a tour d'horizon by outgoing ComCom chair Anna Rawlings but sadly disrupted by a bereavement in her family. In her stead ComCom's Antonia Horrocks (GM Competition) and Andrew Riseley (GM Legal Service), stepped up at short notice and did very well indeed across a wide variety of topics (y'all know who they are but if not profiles are here). Among the things I picked up on: the growth of the Commission (79 folks when the Commerce Act hit the statute books in 1986, 408 now), reflecting its expanded roles; it's setting up an outcomes-based framework to figure out its actual impact (or not), and is planning some look-back analysis of previous merger decisions (gets a tick in both those boxes from me); the value for money as a lighter-touch regulatory option of the $300K a year spent on the airports' information disclosure regime; how 'must do' things like the recent tsunami of mergers have sucked resources out of more discretionary stuff; and, something I'd been baffled about ('What if they threw a party ...', 'Sterny McSternface'), what was going on with authorising collaborative activity to help with the response to Covid. As it happens, quietly in the background ComCom was in fact allowing helpful initiatives through, but barring a rather oblique reference (on p18 of the latest Annual Report), you'd be hard pressed to know. The Commission could usefully give itself a more public pat on the back.

Session 4, chaired by Alicia Murray of DLA Piper, was on unfair terms in business to business (B2B)  contracts, which kicked in here in New Zealand this August for B2B contracts where the trading relationship between the parties is less than $250K a year. Australia's had a regime going for small business contracts ('small' defined differently, but never mind) since 2016, so Professor Jeannie Paterson of the University of Melbourne walked us through what's been happening there, with local  commentary by Jennifer Hambleton from MinterEllisonRuddWatts. The upshot from Australia is that while there is little case law (there have typically been settlements when the regulator has challenged terms), the likelihood that what is adjudged unfair in a B2B contract and what is unfair in a business to consumer contract may be different, and may reduce the likelihood that a term is unfair: Jeannie said for example that "Running a business is all about bargaining for a viable balance of risk and cost in the deal. Many businesspeople are savvy at this trade-off. They may not be able to influence the terms of a standard form contract, but they may negotiate price, which should reflect the risks assumed". That said, it wouldn't be safe to conclude that anything goes, and you can stick any old terms to anyone on a take it or leave it basis: "the takeaway lesson ... may be caution in the scope of the boilerplate provisions". Jennifer ran us through the technicalities of the NZ legislation, including pointing us to one of the limbs of the legal test for an "unfair" contract term, namely "The term is not reasonably necessary to protect the legitimate interests of the party advantaged", and noting that there is "significant uncertainty" about what that means. Given that (as we learned in a preceding session) "reasonably necessary" was also the big issue in collaborative activity authorisations, you'd wonder (as a non-lawyer, in any event) whether there couldn't have been a user-friendlier formulation in the law. In any event, the new legislation is one of those useful bits of consumer law where, by addressing imbalances of bargaining power, it helps grease the wheels of workably competitive markets.

Our dinner speaker was Neale Jones from government relations and communications firm Capital, who gave a very entertaining and insightful guide to effective political lobbying. I'd guess most of his audience have had a go somewhere along the way at influencing things in the competition and regulation space (I've weighed in on s36, market studies, ComCom's Covid-era powers, and ComCom's info sharing with other agencies) and we picked up some practical ways to do it better.

Saturday morning, and we started off with 'Market studies, looking back and looking forward'. It was to have been chaired by Will Taylor of NERA, but at the last moment he came down with the dreaded lurgy, and the ubiquitous Ben Hamlin stepped in to preside over Eric Crampton from The New Zealand Initiative and Lucy Cooper from Chapman Tripp. Two big points from Eric: if you're concerned that competition isn't working in a market, the best first question to ask is, what are the barriers to entry? Why aren't new entrants able to come into a market and eat the incumbents' supernormally tasty lunch? And secondly, when you do that, you're liable to discover that there are "impenetrable thickets" of overlapping blockages which are the real issue: he mentioned the cumulative effects, for example, of regulation (including occupational licensing), statutory protections, zoning and consenting in the planning process, and the Overseas Investment Act. Both Eric and Lucy wondered about the selection process: so far the topics chosen (while good ones) have all been government priorities, and there could well be traction from ComCom being given its head to look at where it thinks there may be issues. Lucy raised something I hadn't thought of: she said that ComCom's strength is in analysis and findings, and perhaps there's scope for the policy recommendation piece to be shared with, or done by, others, given that policy development is an art form of its own. I can see the point, and Lucy (who's been through the supermarkets and petrol bunfights) knows more about process than I do, but FWIW, what you might gain in policy development you might lose in urgency (think s36, and others), unless the policy developers' feet were held to the fire in the same way that ComCom is forced to move right along with its market studies.

Ben Hamlin warms up the audience for Eric and Lucy

And finally we got to an oddity of New Zealand's competition regime, ComCom's legislated inability to accept behavioural undertakings in merger proceedings. In the session, chaired by Glenn Shewan from Bell Gully, we heard from Linda Evans from Herbert Smith Freehills in Sydney (Australia allows behavioural undertakings, and Linda's been involved in some big ones), with commentary from Michael Tilley, Geelong Cats fanatic and mergers manager at ComCom. Another very good session, and I hope I don't do it an injustice by cutting straight to the chase, namely that an absolute prohibition doesn't make much sense and that occasionally - occasionally - behavioural undertakings will be a good way to go. Linda: "The experience, particularly in the US, but also from Australia and Europe, indicates that behavioural undertakings may be appropriate in certain circumstances. In particular, well designed behavioural undertakings can effectively resolve any competition concerns, while also maintaining the efficiency benefits of a transaction". Michael: "There is a case for change; Acceptable standalone conduct remedies are likely to be rare; Claimed efficiencies should be treated with caution; Consumer benefits should outweigh the costs; Commission would want ability to say “no”".  When we get the next update of the Commerce Act, this should be on the agenda.

If you'd like more detail on anything, the papers and slides are already up in the members' area of the CLPINZ website, and recordings of the sessions will also be available in the near future.

A long post, but then this was a pretty chunky and meaty workshop. I'd guess the length was, um, reasonably necessary?

A statistical surprise

The New Zealand Association of Economists runs a poster competition at each annual conference - a good idea, encouraging concision and clear messaging, not always a forte of economists - and this year it was deservedly won by Alexandra Turcu of AUT's Work Research Institute, with her entry, "Underutilisation in the New Zealand labour force: Unused human capital, or an underpaid workforce?". The winner's decided by popular vote of the attendees, and I voted for it, too.

Before reading it, and (I'd guess) like everyone else, I'd always assumed that the "underemployed" were available to work more hours than they currently are, and were a reserve slush fund of unused labour availability. But Alexandra discovered something striking about the apparently "underemployed". 

She looked at the characteristics of two kinds of underemployed people - the full-time underemployed (full-time; available to work more; want to work more) and the part-time underemployed (part-time; ditto; ditto). Remarkably, she found that "Although the underemployed groups want to work more hours, and state that they are available to do so if more hours were available, our results reveal that they already work a similar amount to their fully utilised counterparts. The fully-utilised work only one hour more than the underemployed do per week": full-time employees, for example, who said they were "underemployed" were actually working 40 hours a week, virtually the same as the 41 hours of fully employed full timers, and it was the same story with part-timers where the "underemployed" ones were putting in 15 hours a week compared to the 16 put in by fully utilised part-timers.

So it is not at all obvious that these people actually form any substantial pool of increased labour supply - an important thing to know if, for example, you're the Reserve Bank wondering about potential output and full employment - and it's likely that what they're telling Stats has less to do with their availability to put in more hours and rather more to do with their relatively low incomes. As Alexandra put it, "This begs the question: Are underemployed workers truly underemployed, or are they just underpaid? When asked why they were underemployed, the majority of respondents said it was because there was not enough work available. However, it is important to note that the HLFS [household labour force survey] survey did not include "not enough income" as a potential answer".

So one practical lesson to take away is that there is less slack in the labour supply than you might have thought, if you had been relying on those apparently "underemployed" being available to step up to the plate and do more work. And if you were concerned about their low incomes, there's a positive to take away: fully 57% of those "underemployed" part timers transitioned into fully utilised full timers in the following quarter. They don't sit on the sidelines for long.

Here's the full poster.

When there's a will ...

You don't often see competition reform feature in the Budget, but we did last week.

"We are ... committed to boosting competition in the New Zealand’s grocery sector to ensure people pay fair prices for food and other basics", Grant Robertson said in the Budget speech. "Today, we are introducing legislation that will remove barriers to new retailers entering the market. Specifically, this will prohibit the restrictive covenants on land that major grocery retailers use to limit site availability for competitors. Such covenants will be prohibited immediately once the Bill comes into effect, and I anticipate that competitors can begin to consider new sites shortly thereafter".

The Commerce (Grocery Sector Covenants) Amendment Bill is here. It defines Foodstuffs North Island Limited, Foodstuffs South Island Limited, and Woolworths New Zealand Limited as 'designated grocery retailers', and creates a new s28A of the Commerce Act whereby "Certain grocery-related covenants are treated as prohibited and unenforceable" by deeming them as "having the purpose, or as having or being likely to have the effect, of substantially lessening competition in the relevant market", and so pinging them under the existing s27 and s28 of the Act. s27 we all know and love - contracts, arrangements and understandings substantially lessening competition - and s28 is its equivalent for anti-competitive covenants.

In its grocery market study (summary here, whole shebang here), the Commerce Commission had identified "more than 90 restrictive covenants entered into by the major grocery retailers, the majority of which are still active" (6.77) and "over 100 exclusivity covenants in leases entered into by the major grocery retailers, the majority of which are still active" (6.80). Clearly, this isn't a small issue, and it may be rather bigger than the Commission thought. On its helpfully proactive 'Market study reporting dashboard', Foodstuffs North Island says that it alone has removed restrictive covenants from 78 out of 135 affected properties (the outstanding ones are on land it doesn't own any more, and they are approaching the current owners to bop those off, too).

So it's good news that the government has moved quickly to implement the Commission's recommendations 2A, 'Prohibit restrictive covenants that relate to the development of retail grocery stores' (discussed at 9.68 - 9.72) and 2B, 'Prohibit exclusive covenants in leases that relate to the operation of retail grocery stores' (9.73 - 9.79). Their impact may be overstated - my guess is that planning laws restricting the supply of land available for supermarkets may be more important, as may planners' inclination to protect competitors rather than to protect the competitive process (hence the Commission's 'Recommendation 1F: Retail grocery store development should not be able to be declined on the basis of adverse retail distribution effects on existing commercial centres') - and the supermarkets look to have been dismantling them anyway, but it's progress. 

It's helpful that the political pressure to 'do something' about rising prices in the shops - a key focus of the Budget - helped bring about a quick competition policy response, and you'll excuse me if I snarkily add, 'for once', given the tortuous processes in getting s36 reformed, cartels criminalised, and indeed setting up the market study regime itself. When there's a will, there's a way, as they say. Moving this quickly, incidentally, means that you've only got a very brief window for submissions: Friday, in fact. The submission link is here.

But I hope that the "it's the supermarkets wot done it" line about inflation doesn't get taken much further. In April the Commerce Minister, Dr David Clark, commented on the 7.6% rise in New Zealand food prices over the year to March, and said that "The March increase is above general inflation figures and highlights the role the grocery sector is playing in driving up prices. Rising food prices is a global issue. Omicron, ongoing disruptions to global supply chains and Russia’s invasion of Ukraine is putting pressure on prices in every country, but that is exacerbated here by the lack of competition at the checkout".

Hmmm. In the US, annual food price inflation was 8.8% in March; in Canada it was 9.7%; in the UK it was 6.7% in April. Overwhelmingly, inflation is not a matter of grocery industry structure, but a result of those other global factors that the Minister mentioned: he might have thrown in monetary policy, here and overseas, being left too stimulatory for too long after the initial Covid hit. Blaming the supermarkets, if only in part, for current food price inflation may play well to the galleries, but it's not a strong argument. If, as he said at the time, he had "not ruled out going further than the options that the Commission tabled in its final report", fair enough: quite a few folks (but not me) reckon the Commission didn't go far enough. But I wouldn't take that step on the back of a not very convincing line of attack on inflation.

First guest post - Ben Hamlin on s47 penalties

I'm really pleased to announce the blog's first guest post - from Ben Hamlin, Barrister (Ben@hamlin.law). Our shiny new Commerce Amendment Act 2022 has got most attention for its (welcome) rewrite of s36 along Australian lines, but as Ben explains, there are other provisions which you need to be on top of. Ben's written about the increased penalties which will apply from May 5 to parties who breach s47 (anti-competitive mergers or acquisitions). As it happens, the Commerce Commission has been more active in recent years in opening s47 inquiries: Ben reviews the history and draws the lessons. Enjoy!

***

Increasing penalties for anti-competitive mergers

Merger activity is booming, so practitioners in that field might be forgiven if they had overlooked the forthcoming increase in penalties for mergers that contravene section 47 of the Commerce Act.

The increase is worth noting, but also provides an opportunity to reflect on merger enforcement in recent years.

The potential penalties for mergers are on the up

The first substantive provisions of the Commerce Amendment Act 2022 come into force on 5 May 2022, including an increase in the corporate financial penalties associated with mergers that substantially lessen competition. From 5 May onward, the maximum penalty will be the greater of:

(i)                  $10 million:

(ii)                 either,—

(A) if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or

(B) if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.

As is often the way, the change in merger penalties barely rated a mention in the passage of the Commerce Amendment Act 2022. At the third reading Hon Andrew Little, speaking in the place of Hon David Clark, noted:[i]

Another important way that the Act protects the competitive process is through its prohibition against anti-competitive mergers or acquisitions. For this prohibition to be effective, it needs to be able to deter entities that may benefit significantly, in commercial terms, from the merger. The bill ensures this can happen by increasing the monetary penalty the courts can impose if entities are found to have contravened the prohibition.

This change brings the penalty into line with contraventions of Part 2 of the Act, and broadly into line with the penalties for a breach of the equivalent provision in Australia.[ii] The increase from $5,000,000 to $10,000,000 is also broadly in line with inflation since the penalty was set in 1990.[iii]   

So far, very orthodox: deterrence through ensuring that the potential benefits are outweighed by the potential penalties.

Does an increase in non-notified merger investigations suggests inadequate deterrence?

An interesting further justification was provided in the Cabinet paper approving the decision to increase the penalty. The Courts have cautioned against placing much weight on cabinet papers when interpreting legislation.[iv] Any judges reading may wish to avert their eyes.

The paper noted that: [v]

“Since the beginning of 2018, the Commerce Commission has undertaken investigations into eight possibly anti-competitive mergers for which clearance or authorisation was not sought. This suggests that the current penalties for anticompetitive mergers are not acting as a sufficient deterrent.”

Does it? As the readers of this blog will be aware, the penalty is only part of the optimal deterrence equation. The probability of detection and prosecution is equally, if not more, important.

The Commission’s merger enforcement 2010/11 to present

The Commission’s published merger statistics show that there was indeed a real spike in s47 investigations.[vi] In the seven years between 2010/11 and 2016/17 there were a total of 11 section 47 investigations decided. Yet in the two years 2017/2018 and 2018/2019 a further 11 section 47 investigations were decided.

Financial year	10/11	11/12	12/13		13/14			14/15			15/16			16/17		17/18		18/19	19/20		20/21		21/22 HY	Total
Clearances (s 66)
Total applications decided	10	10	8		12			14			12			7		9		11	9		8		10	120
Unconditional clearance	8	8	6		9			11			9			3		5		8	9		6		6	88
Clearance with divestment	2	1	0		2			1			2			0		1		2	0		2		1	14
Declined	0	1	1		0			2			1			3		2		0	0		0		0	10
Withdrawn	0	0	1		1			0			0			1		1		1	0		0		3	8
Section 47 investigations
Number decided	1	3	2		1			2			1			1		7		4	1		2		0	25

Table 1 Source: Commerce Commission Merger Determination and Enforcement Statistics - December 2021

What could have caused the jump? It is difficult to distinguish correlation and causation. But many competition law tragics will remember a heady period where the Commission blocked five transactions in 13 months: Sky/Vodafone February in 2017, Aon/FPIS in March 2017, the NZME/Fairfax Authorisation was declined in May 2017, Vero/Tower in July 2017, and Trade Me/Limelight in March 2018. Appeals were filed against three of the decisions (Sky/Vodafone, NZME/Fairfax, Vero/Tower), but two were withdrawn and the NZME/Fairfax appeal proceeded unsuccessfully.

It is possible that blocking a number of high profile mergers in quick succession caused some parties to avoid clearance. In any event, the increase in section 47 investigations did not escape the Commission’s attention. In August 2018, the Commission announced its priorities for 2018/2019, and ‘non-notified mergers’ was among them. The Commission’s then Chair was quoted as saying:[vii]

“New Zealand is one of a few jurisdictions with a voluntary merger clearance regime and the Commission is seeing an increase in non-notified mergers. Over the past 2 years we have opened five investigations into non-notified mergers. The success of a voluntary regime relies on the credible threat of enforcement proceedings so we will act quickly in these cases to prevent adverse impacts on competition in markets.”

Opening investigations is, of course, the easiest part of the process, and does not mean any competition issue exists. Competition investigations can start, stop, or spend a long time in between, and are often a black box to the outside world. Up until July 2017, little information appears to have been published unless a section 47 investigation resulted in litigation.

Fortunately, in July 2017, the Commission had announced that it intended publish a record of section 47 investigations on its website, to ensure the public and market were aware of investigations into potentially anti-competitive transactions.[viii] As a result, the Commission’s case register records outcomes for 11 section 47 investigations since the beginning of 2018.

A breakdown of them is instructive:

• In three cases, the Commission considered there was either no issue, or insufficient evidence to establish a competition issue: Bondor NZ/The Long Group, Bejier Ref AB/Heatcraft NZ/Kirby NZ, and Glenninburg Holdings/Wallace Group GP.
• In four cases, the Commission closed its investigation following a divestment or change in transaction. In Vero Insurance NZ/Tower Insurance, no further action was taken after Vero divested the 19.9% of Tower it had bought during its attempted takeover of Tower. In Fulton Hogan/Stevenson, no further action was taken after Fulton Hogan agreed not to acquire Stevenson’s Huntly quarry. In David Ferrier/Cavalier Wool Holdings no further action was taken after David Ferrier sold down his interest NZ Wool Dumping. In Datix/RL Solutions, no further action after Datix divested several customer contracts.
• In four cases, the Commission commenced proceedings. In Platinum Equity/OfficeMax Holdings, a settlement was reached after litigation was commenced. Platinum purchased OfficeMax but divested its WINC NZ business. In Wilson Parking NZ/Penrith Holdings, a settlement was reached after litigation was commenced. Wilson Parking offered an enforceable undertaking to divest the assets it had acquired. In First Gas/Gas Net, an agreed civil pecuniary penalty was imposed. And most recently, in Objective Corporation/Master Business Systems, a civil pecuniary penalty is to be imposed following settlement.

Without going into the merits of any of these individual cases, the outcomes overall suggest that the Commission was right to have some concerns but appears to have been able to address them. While headlines tend to focus on declines and penalty cases, divestures can equally represent a significant outcome for competition. In some cases, such as Platinum Equity/OfficeMax litigation, or the recent Ampol/Z Energy clearance, the entire existing New Zealand business is divested. It is also clear that some deals are ultimately stopped because of competition concerns, which can see investigations halted or clearance applications withdrawn.[ix]

This burst of section 47 activity may not be permanent. The Commission’s register indicates that while three section 47 investigations were commenced in mid-2020, there have been none commenced since August 2020 despite a veritable boom in merger activity. Instead, the 2021/2022 year appears to be one for the books in terms of merger clearances, with 15 applications decided in the first three quarters.

One possible explanation for this is that the Commission’s announced focus on non-notified mergers, followed up with investigations, has resulted in the pendulum swinging back towards parties seeking clearance. The increased probability of detection may have been what was missing, rather than the size of the penalties.

Conclusions

One busy year is not enough to draw firm conclusions, and we are working with small numbers in any event. But I would suggest three conclusions can be drawn, for what they are worth, from the data we have.

First, the Commission’s decision to regularly publish data on its merger work, and the decision to make section 47 information public on its register, assists in analysis and understanding of the Commission’s work in context. 10 years ago, a practitioner would need to rely on insider knowledge, intuition, or a lengthy series of OIA requests, to attempt to understand what was going on.

Second, the Minister was right that there was an increase in section 47 investigations, but it does not necessarily follow that a penalty increase was needed for that reason alone. If in the future there is a decrease in voluntary notifications, perhaps because of the cluster of blocked transactions, then the appropriate response might be more investigation. That may require resourcing and appropriate enforcement tools, rather than another increase in penalties.

Third, the Commission’s performance should be assessed in context. The Commission has not declined a clearance since Trade Me/Limelight, more than four years ago. But that does not mean that the Commission has not been busy enforcing New Zealand’s merger laws in other ways. Anyone viewing New Zealand as a soft touch could be in for a surprise.

And from 5 May, it is potentially a much larger one.

Ben Hamlin, Barrister.

Disclosure: Ben Hamlin was Deputy General Counsel, Competition, later Chief Legal Adviser, Competition, at the Commerce Commission between February 2017 and March 2022. His views are his own.

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[i] Commerce Amendment Bill, Third Reading, 17 March 2022.

[ii] See section 76 of the Competition and Consumer Act 2010 (Cth).

[iii]  The RBNZ Inflation Calculator indicates that a basket of goods worth $5 in Q2 1990, when the Commerce Amendment Act 1990 was passed, would be worth $9.60 in Q4 2021, the most recent available data.

[iv] See for example, A Labour Inspector v Southern Taxis Ltd [2021] NZCA 705 at [51].

[v]  Cabinet Paper “Review of Section 36 of the Commerce Act and Other Matters: Policy Decisions” (18 February 2020) at [56], available online here.

[vi] Merger determinations and enforcement statistics – December 2021, available here.

[vii] Commerce Commission “Commission releases 2018/19 priorities” (press release, 9 August 2018) available online here.

[viii] Dr Mark Berry, “Opening remarks” (Competition Matters 2017, Wellington, 21 July 2017).

[ix] For example, the recent Cargotec/Konecranes and Aon/Willis Towers Watson mergers were both cancelled because of competition concerns.