Statement Of Preliminary Issues Released For Evergreen’s Application To Acquire ACMNZ

The Commerce Commission has published a statement of preliminary issues relating to an application from Evergreen NZ Holdings (Evergreen) seeking clearance or authorisation to acquire 100% of the shares in ACM New Zealand Limited (ACMNZ) from ACM Holdings (NZ) Limited (ACM).

The statement outlines the key issues that the Commission currently considers important in deciding whether or not to grant clearance or authorisation to the proposed acquisition.

The Commission invites interested parties to provide comments. Submissions can be sent by email to registrar@comcom.govt.nz with the reference “Evergreen/ACM” in the subject line. Any submissions should be received by close of business on 21 May 2024.

If you would like to make a submission but face difficulties in doing so within the timeframe, please ensure that you register your interest with the Commission at registrar@comcom.govt.nz so that we can work with you to accommodate your needs where possible.

The Commission is currently scheduled to make a decision on the application by 8 July 2024. However, this date may be extended as the investigation progresses.

The Statement of Preliminary Issues and a public version of the application can be found on the Commission’s case register.

Background

Evergreen is a private unlimited liability company incorporated in New Zealand, wholly owned by Evergreen International NZ, LLC. The ultimate owner of Evergreen is a family trust established by Gavin & Hope Wolfe.

ACMNZ is a wholly owned subsidiary of ACM and is part of the Linfox Group, the ultimate parent of which is LEPGF Pty Ltd.

A public version of the clearance/authorisation application is available on the Commission’s case register.

Assessing a merger authorisation application

Authorisation applications follow a two-step process under the Commerce Act. The Commission must first assess whether the merger would be likely to substantially lessen competition in a market.

We assess whether a merger is likely to substantially lessen competition in a market by comparing the likely state of competition if the merger proceeds, with the likely state of competition if it does not. If we are satisfied that the merger is not likely to substantially lessen competition, then we can clear the merger.

If we are not satisfied that the merger is unlikely to substantially lessen competition, then the second step is to apply a ‘public benefit test’ to determine whether the merger should be authorised. The public benefit test involves balancing the public benefits and detriments that would, or would be likely to, result from the merger. If we are satisfied that the merger will result in such a benefit to the public that it should be permitted, then we will grant authorisation.

Examples of merger authorisations that the Commission has considered in the past can be found here.

Further information explaining how the Commission assesses a merger application can be found in our Mergers and acquisitions Guidelines. Our Authorisation Guidelines provide further detail on the process we use to determine authorisation applications.

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