Australia-New Zealand Enhanced

Co-operation

ACCC-NZCC cross-appointments

Background: a long history of Trans-Tasman Economic Co-operation

• Australia and New Zealand close geographic and economic neighbours and many companies operate in and/or trade between both countries

• 1983 Australia-New Zealand Closer Economic Relations Trade Agreement (CER Agreement)

• 1988 MOU on the Harmonisation of Business Law between Australia and New Zealand

• 1990 introduction of s.46A of the Competition and Consumer Act (CCA) and s.36A of the Commerce Act (NZ) – misuse of substantial market power in a trans-Tasman market

• Trans-Tasman Proceedings Act 2010 – mutual recognition and enforcement of judgments

17 June 2014 OECD Competition Committee – WP3 2

Single Economic Market Outcomes Framework 2009

• Agreed between the Australian and New Zealand Prime Ministers 20 August 2009

• Competition policy stream proposed three outcomes: – Firms operating in both markets face the same consequences

for the same anticompetitive conduct

– Competition and consumer law regulators in both jurisdictions are able to share confidential information for enforcement purposes

– Cross-appointment of associate members on the ACCC and NZCC

17 June 2014 OECD Competition Committee – WP3 3

Long history of co-operation between the ACCC and the NZCC

• Many similarities in the structure of the CCA and the Commerce Act (mergers and agreements that SLC, taking advantage of SMP for an anti-competitive purpose, authorisation on public benefit grounds)

• 2006 Cooperation Protocol - merger review

• 2007 Cooperation Agreement – general

• 2013 Cooperation Agreement – provision of compulsorily acquired information and investigative assistance

• Tripartite arrangements with each of Canada, UK and Taiwan

17 June 2014 OECD Competition Committee – WP3 4

ACCC-NZCC Cross-appointments

• Cross appointments intended to enhance co-operation and increase alignment in the administration of competition law

• Inaugural cross-appointments commenced December 2010

• Mark Berry (Chair of the NZCC) and Jill Walker (Chair of the ACCC Merger Review Committee) cross-appointed as Associate Commissioners

• Initial focus on consideration of trans-Tasman mergers

• In the first three years we have considered 8 mergers under these arrangements and one currently under consideration

• Also considered revised Merger Guidelines and Authorisation Guidelines in New Zealand, revised Authorisation Guidelines and Merger Process Guidelines in Australia

17 June 2014 OECD Competition Committee – WP3 5

How it works in practice

• New Zealand has a Formal Merger Clearance regime • Australia has both a Formal and an “Informal” Merger Clearance regime, but

only the latter has been used to date • ACCC and NZCC staff have a long history of co-operation in merger reviews -

informal discussions and use of waivers • When a merger clearance application is received on both sides of the Tasman,

we now routinely consider that merger under the cross-appointments • ACCC Commissioner appointed to the NZCC Division considering the merger in

New Zealand with regular meetings • NZCC Commissioner invited to MRC and Commission meetings in Australia for

agenda items relating to consideration of the merger • Meetings generally occur by VCU • Cross-appointed Commissioners have full access to confidential information • In parallel, staff teams have regular discussions relating to markets, theories of

harm and development of potential remedies

17 June 2014 OECD Competition Committee – WP3 6

Benefits of the Cross Appointments

• Deepens cooperation at Commissioner and staff level

• Greater alignment of analytical frameworks, theories of harm and effective remedies – general and specific

• Pooling of knowledge, experience and expertise

• Consistent decisions – but may not be the same decision

• Markets may not always be the same (differences in product and geographic substitution)

• Competition concerns may arise in one country but not the other, e.g. differences in number of remaining players, or both

• Remedies may be required in one country or both

17 June 2014 OECD Competition Committee – WP3 7

Going Forward

• Commitment to review after initial 3 years

• Review and discussions re future arrangements ongoing

• Positive feedback from stakeholders

• Look forward to future announcements

17 June 2014 OECD Competition Committee – WP3 8

Thank You