Commission closes investigation into Beijer acquisitions

The Commerce Commission has closed its investigation into Beijer Ref AB’s 2018 acquisition of Heatcraft New Zealand Limited, and its 2019 acquisition (via its subsidiary Kirby NZ Limited) of a right to import hydrofluorobcarbons (HFCs) into New Zealand (the acquisitions). Beijer completed both transactions without seeking clearance or authorisation from the Commission.

In May 2018 Beijer acquired Heatcraft NZ, and immediately sold the Heatcraft NZ assets to Reece New Zealand Limited. Heatcraft NZ (which remained under the ownership of Beijer) was renamed Kirby NZ Limited. At the time, Beijer and Reece were major importers and wholesalers of refrigerants, refrigeration equipment and related components in New Zealand.

In 2019 Beijer (via Kirby NZ Limited) and Reece each made applications to the Environmental Protection Authority (EPA) for permits to import HFCs into New Zealand using historical data relating to Heatcraft NZ’s business activities. These applications were made following the introduction of a new permit system for importing HFCs into New Zealand. The EPA awarded eligibility to Beijer but declined Reece’s application. This meant that Beijer, and not Reece, was able to secure permits to import HFCs in line with Heatcraft NZ’s previous market position.

After receiving a complaint from Reece, the Commission opened an investigation in July 2020 into Beijer’s acquisitions of Heatcraft NZ in 2018, and HFC permits in 2019, under sections 47 and 27 of the Commerce Act 1986 (the Act). The Commission was concerned the acquisitions may have substantially lessened competition for the supply of HFCs in New Zealand.

The Commission has closed its investigation without taking further action. The Commission reached the view that there is insufficient evidence at this time to establish that either acquisition has substantially lessened competition. The Commission also noted that Reece has filed proceedings against Beijer in relation to the above matters, including under the Act.

A summary of the reasons outlining the Commission’s decision will be published on our website.

Background

Section 47 of the Commerce Act prohibits acquisitions that have or are likely to have the effect of substantially lessening competition. The Commission administers a voluntary notification regime that allows firms to apply for clearance if they consider their planned acquisition could raise competition issues. If firms do not apply for clearance, the Commission can initiate an investigation into a proposed or completed acquisition under section 47. If a person breaches section 47 they may be subject to a penalty of up to $500,000 for an individual or $5 million for a firm.

Section 27 of the Commerce Act prohibits agreements that have the purpose, effect or are likely to have the effect of substantially lessening competition. If the Commission concludes that a breach of section 27 has occurred, the maximum penalty is $500,000 for an individual and in the case of a body corporate the greater of $10 million, or either three times the value of any commercial gain resulting from the contravention; or if the commercial gain cannot be easily established, 10% of the turnover of the body corporate and all of its interconnected bodies corporate.

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