Definition of merger authorisation and overseas merger authorisation in s 4(1) 50 or s50A would apply but not both. the definition of overseas merger authorisation reflect that it is not authorisation for a person to engage in conduct to which s50 would apply. Paragraph 10.21 of the Explanatory Memorandum would also need to reflect these amendments. 13 Test for authorisation upon review by the Tribunal Schedule 10 Part 2 Item 101 New s 101(3) This is an issue of clarity only. New s 101(3) provides that s 91B(5) applies in relation to the Tribunal in like manner as it applies in relation to the ACCC. s 91B(5) enables a person granted authorisation for revocation of that authorisation and outlines the requirements that apply to the ACCC is making a determination revoking the authorisation. In addition to providing the test to be applied in making a determination revoking an authorisation, s 91B(5) also refers to objections to the revocation included in any submissions invited by the ACCC. A confusing result of applying s 91B(5) to the Tribunal in like manner as it applies to the ACCC is that this implies that the Tribunal may invite submissions from parties in respect of the revocation, where as the information the Tribunal may take into account in review of a merger authorisation is limited by new provisions ss 102(2) and 102 (8). The ACCC considers that s 101(3) should be amended to ensure that it is only the statutory test in s 91B(5) that is applied and not the additional text regarding the information to be taken into account. s 91B(5) should not apply to merger authorisations except to the extent that it refers to the test applied by the Tribunal. The references to considering submissions does not apply to merger authorisations and new ss 101(2) and 102(8) make that clear. Amend s 101(3) to ensure that it is only the statutory test in s 91B(5) that is applied and not the additional text regarding the information to be taken into account.
review. 6 Collective bargaining notification – future members Schedule 10 Part 1 Item 13 s 93AB(7A) Proposed s 93AB(7A) allows a collective bargaining notification to be expressed to cover future parties but it does not expressly require that those parties must also be able to have given the notice on their own behalf (similar to current s 93AB(7). This is the mechanism that ensures that members of the group meet the requirements for lodging a collective bargaining notification in ss 93AB(2), (3), (4) (5) Require that a collective bargaining notice may be expressed to be given on behalf of persons who become members of the group after the notice is given but only if those parties could have given the notice on their own behalf. 7 Forms approved by the ACCC No schedule re power to approve forms Schedule 10 Part 1 Item 1 s 88 and Part 2 Item 72 new s 89(1)(a) Proposed s 89(1)(a) replaces the form prescribed by the regulations with one approved by the ACCC. However, there is no express power in the CCA for the ACCC to approve or prescribe forms. See e.g., s 109 Commerce Act (NZ): ‘For purposes of this Act, the Commission may from time to time prescribe forms of applications, notices, and other documents required for purposes of this Act.’ The proposed amendment to s 89(1)(a) only relates to applications for authorisation. It does not apply to forms required for notifications for exclusive dealing or resale price maintenance in s 93(1A) or for forms required for notifications of collective bargaining s 93AB(6). It is preferable that the ACCC is able to approve forms for notifications in addition to applications for authorisation. Alternatively, given that the ACCC will be able to approve some forms, while other forms will be prescribed by regulation, there is Include an express power for the ACCC to approve forms for purposes of this CCA. Consider whether also to provide for the ACCC to approve the form for notifications rather than using a form prescribed by the regulations. s 172(3) to be amended to provide for forms approved by the ACCC in addition to forms prescribed by the regulations. [Note: An express power for the ACCC to approve forms is similarly required for merger authorisations]