NEW ZEALAND Law and Practice Contributed by: Sarah Keene, Jordan Cox, Antonia Horrocks and Victoria Fowler, Webb Henderson
Internal Business Documents The NZCC requires a broad range of internal docu - ments from both the applicant(s) and, to the extent reasonably available, the target(s) covering the past two years. To be within scope, documents must have been pre - pared for, seen by or considered by senior manage - ment, and/or any member of the board of directors or equivalent body – whether prepared internally or by external consultants. These include: • documents setting out the rationale for the merger; • documents from the merger parties prepared within the last two years discussing alternatives to the merger (counterfactual); and • documents from the merger parties from the last two years relating to the relevant products, ser - vices, competitive dynamics and markets. Financial Information Applicants must provide copies of annual reports or audited financial statements for each merger party for the last three financial years. An officer of the acquiring company will need to make a declaration as to the accuracy of the contents of the filing form. No specific certification of documents is required. Applications for clearances or authorisations can be made in English or Te Reo Māori. If documents are relevant to the competition assessment, the NZCC may request English translations be provided. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification As the regime is voluntary, there are no penalties in the Commerce Act for failing to file. Mergers that substantially lessen competition that have not been authorised by the NZCC are illegal and may attract pecuniary penalties. It is an offence to attempt to deceive or knowingly mislead the NZCC in respect of any matter before the NZCC. Any person who does so is liable upon sum - mary conviction to a fine of up to NZD100,000 (for an individual) or NZD300,000 (for a body corporate).
The applicant must submit a declaration when filing, which confirms that the applicant views the informa - tion provided as accurate and knows it is an offence under the Act to deceive or knowingly mislead the NZCC. 3.7 Review Process The NZCC has a 40-working-day statutory time - frame to make a decision on the outcome of a clear - ance application. However, if an extension is sought and parties refuse, then the application is deemed declined. Parties can technically close the transac - tion in the face of a declined clearance, but the NZCC would most likely seek, and be granted, an injunc - tion by the High Court to prevent the transaction from being completed before the NZCC has a chance to complete its investigation. In practice, all requests for extensions are granted by parties. The NZCC has provided the following indicative time - table for its assessment of a clearance application: • 5 working days – NZCC releases a Statement of Preliminary Issues (SOPI); • 15 working days – third-party submissions on the SOPI; • 30 working days – initial interviews and information gathering completed; • 40 working days – NZCC will decide to give clear - ance, or decide to publish a Statement of Issues (SOI). For more complex applications: • 50 working days – SOI published; • 60 working days – submissions due on the SOI; • 65 working days – cross-submissions due on the SOI; • 70 working days – meeting with the applicant to discuss SOI response; • 90 working days – NZCC will decide to grant clearance or to publish a Statement of Unresolved Issues (SOUI); • working day 100 – SOUI published; • working day 110 – submissions due on the SOUI; • working day 115 – cross submissions due on the SOUI;
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