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Competition Law Year in Review
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Significant developments in 2025
Contact Energy acquires Manawa Energy
Contact Energy Limited was granted clearance to acquire Manawa Energy Limited after 114 working days. The application received 22 submissions on its Statements of Issues. The NZCC determined that the transaction would not substantially lessen competition in either the supply of shaped hedges, or the wholesale supply of physical electricity, being the two main areas of overlap between the Parties.
NZCC updates investigation guidelines
The NZCC published its updated investigation guidelines which provided a default position that the NZCC would publish details on its case register whenever an investigation is opened, before a decision is reached. Such an approach would raise natural justice and best practice concerns, and in response to concerns raised has not yet been implemented. Hopefully updated investigation guidelines will be published during 2026.
Read more here.
Foodstuffs North Island cartel investigation
The NZCC announced that it would file civil proceedings against Foodstuffs North Island, and Gilmours Wholesale Limited, for alleged cartel conduct relating to a national grocery supplier. It is alleged that the supplier wanted to provide a competitive supply channel, but this was prevented by its agreement with Foodstuffs North Island and Gilmours.
NZCC finds no evidence of cartel behaviour in banks' involvement in Net-Zero Banking Alliance
The NZCC has found no evidence of ANZ, ASB, BNZ, Rabobank and Westpac engaging in unlawful coordination between the banks, or with the Net-Zero Banking Alliance. The Net-Zero Banking Alliance is a United Nations initiative to support banks to lead on climate mitigation in line with the Paris Agreement. It was alleged that the banks were coordinating to align their agricultural lending policies with Net-Zero Banking Alliance's strategies and targets. The NZCC investigated this allegation and found no evidence of any coordination between the banks.
Level playing field initiatives in the electricity industry
The Energy Competition Task Force established in 2024 proposed major reforms to level the playing field between gentailers and independent players in the electricity market. The proposals include mandatory hedge trading for gentailers to help independents better manage risk, non-discrimination obligations to prevent gentailers favouring their own retail arms, and a futures market review to examine whether the market supports healthy competition. These changes are collectively intended to promote greater competition and transparency for market participants in the electricity industry and are expected to take effect by mid-2026 if approved. Read more
Cartel conduct alleged against Harcourts Group
The NZCC has initiated civil proceedings against Harcourts Group Limited and four of its franchisees for alleged cartel agreements in relation to the prices (commission rates) they charged customers. The Commission is alleging that the franchisees, despite all operating under the Harcourts brand, were in competition with each other. The Commission has stressed that it "is not looking to challenge the franchise model generally", but that in "this specific case, it just so happens that the cartel conduct we are alleging took place in the context of a franchise relationship."
Further sentencing in criminal cartel case
The first ever criminal cartel case in New Zealand has reached its conclusion, with a second company pleading guilty and being sentenced to a fine of $30,000. It was highlighted that had there been any realistic prospect of it being repaid, Justice Sally Fitzegerald would have fined the company $595,000. Following the company's guilty plea, and in consideration of other factors, the Commission withdrew charges against the business's director. This follows another company, and its director being sentenced to a fine of $500,000, and six months community detention and 200 hours of community work respectively, for their involvement in the same conduct. Read more
Huntly Power Station Authorisation
The NZCC has authorised an agreement between the Gentailers in relation to Huntly Power Station for 10 years. The arrangement permits Contact, Meridian and Mercury access to certain notional generation capacity from Genesis at Huntly Power Station, in exchange for an annual premium and running costs incurred on their behalf, to reflect the cost of Genesis maintaining, operating and resourcing the power station. Genesis has unallocated capacity at Huntly that it intends to make available for third-party non-gentailers. The NZCC was satisfied that the benefits from the arrangement, which would otherwise be prohibited under the cartel prohibition, outweigh any harm to competition.
Commerce Act reforms introduced to Parliament
The Commerce (Promoting Competition and Other Matters) Amendment Bill was introduced to Parliament largely in line with the reforms proposed in MBIE's consultation paper in September. The reforms are targeted at "killer" and "creeping" acquisitions. The reforms will also introduce an objective cost-based test for predatory pricing. We have concerns with some of these proposed reforms.
Read more about the Bill and the surprises contained in it in our alert here.
On the horizon for the new year
Commerce Act reforms
The Commerce Act reforms announced are expected to have a consultation process early in the New Year, and to take effect by mid-2026. The details of how the legislative framework will ultimately look, and any updated NZCC guidance on how they intend to enforce the new reforms, will be an area to watch.
Winstone Wallboards proceedings
The NZCC has filed proceedings against Winstone Wallboards for their use of rebates, alleging that they breached sections 27 and 36 of the Commerce Act. This case will pose an important precedent for the NZCC, and for businesses keeping a close eye on the court's interpretation. While the proceedings are likely to be a lengthy process, with formal proceedings having been filled in October 2024, it is possible more detail on this matter will emerge during 2026.
Updates expected to clearance application procedure
The NZCC has announced a renewed focused on timeliness for parties filing clearance applications, acknowledging that in its current state it is time consuming for all those involved. To improve timelines, and reduce the requirements for subsequent requests for information, the NZCC is updating its clearance application form to require additional information and remove redundant requirements.
Hot topics on the global radar for 2026
A focus on Artificial Intelligence
Competition Authorities (including those in the UK, Australia, and US) are intensifying investigations into algorithmic collusion and the uses of artificial intelligence, including where the same algorithm is used for price-setting purposes. The NZCC will watch these overseas developments closely, with it highlighting in its enforcement priorities for the year its interest in AI and algorithm uses.
Australia transitions to a mandatory notification regime
Australia's transition to a mandatory merger control regime, whereby Parties to a transaction must notify the Australian Competition and Consume Commission if certain revenue or asset value thresholds are met, takes effect from 1 January 2026. The teething issues in this space, and how businesses adapt to the new regime, will be one to watch, particularly for trans-Tasman deals.
Sustainability collaborations
New Zealand currently has collaboration and sustainability guidelines that aim to assist New Zealand businesses with how to structure collaboration without breaching competition law. The NZCC wishes to encourage collaboration to achieve sustainability objectives, where this is done lawfully. With the ever-increasing focus on climate change, and the need for collaboration in response, competition regulators globally are likely to continue monitoring business collaborations in this space. The NZCC will take notice of global developments and possibly adapt the New Zealand approach accordingly. It is expected that when the Commerce Act reforms are enacted, there will be a new streamlined collaborative activities clearance process, enabling the NZCC to grant clearance for "cartel" provisions without conducting a full competition assessment.
This content is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter, please contact a Russell McVeagh partner/solicitor.