The Australian Competition and Consumer Commission
(ACCC) has released a draft new Immunity and
Cooperation Policy for Cartel Conduct (new policy)
and a supporting Frequently Asked Questions document
(FAQs) for public comment.
This is the latest step in the ACCC's review of its existing
policy and interpretation guidelines.
The immunity policy is a key part of the ACCC's compliance
and enforcement program targeting 'cartel conduct'
(including price fixing, bid rigging and other collusive
anti-competitive conduct prohibited under Division 1 of Part IV and
section 45(2) of the Competition and Consumer Act 2010
The closing date for comments is 7 May 2014.
A USER-FRIENDLY POLICY
The ACCC has achieved its aim of making its policy clear,
accessible and user-friendly. This is an important step forward, as
the ACCC relies heavily on self-reporting by immunity applicants
for the detection and prevention of cartel conduct.
The proposed new policy improvements include:
plain English drafting;
logical headings and content structuring;
a new 'step by step' guide to the immunity
a new process flow chart which gives a clear visual overview of
the immunity process; and
a new illustration which summarises the 'amnesty-plus'
The FAQs would replace the existing interpretation guidelines.
This will be welcomed by users, as the status and purpose of the
interpretation guidelines and its interaction with the existing
policy has caused uncertainty and confusion.
The majority of the FAQs match the proposed new policy's
'step by step' guide and provide helpful supporting content
(e.g. explanations of key terms such as 'marker' and
'proffer' which are unlikely to be familiar to potential
In the context of the public-facing policy, the well-known and
inherently user-friendly FAQ format is likely to be a success.
WHAT HAS CHANGED?
The proposed new policy reflects the changes highlighted in the
ACCC's 2013 discussion paper:
streamlining the civil (ACCC) and criminal (Commonwealth
Director of Public Prosecutions (CDPP)) processes
for granting immunity (see below);
removal of the 'clear leader' concept from the list of
immunity criteria (one of the criteria under the current policy is
that the applicant is not the 'clear leader' of the
clarification of the ACCC's approach to assessing leniency
clarification of the 'amnesty plus' concept (an
applicant who does not receive immunity for reporting one cartel,
but reports a second, un-related cartel, may be eligible for
'amnesty plus' leniency in relation to the first cartel);
clarification of the ACCC's approach to withdrawing
Overall, while these changes would not represent a significant
shift in policy or approach, the ACCC has succeeded in making its
policy and procedures clearer and more transparent.
NEW CRIMINAL IMMUNITY 'LETTERS OF COMFORT'
Perhaps most importantly, the ACCC has worked with the CDPP to
address concerns regarding the coordination of the 'dual
track' civil and criminal cartel immunity processes. The
proposed new policy sets out a process to facilitate the provision
of a CDPP 'letter of comfort' at the same time as the
provision of an ACCC 'letter of comfort' (offering an
applicant conditional civil immunity). It is proposed the CDPP
'letter of comfort' will recognise the applicant's
'first in' status and confirm the CDPP's intention to
formally grant conditional criminal immunity under section 9(6D) of
the Director of Public Prosecutions Act 1983 (Cth) at the
appropriate time (i.e. prior to the commencement of a criminal
The fact that the CDPP does not currently offer 'letters of
comfort' was a significant issue identified during the
ACCC's consultation process. It is obviously very important for
applicants to have some form of up-front certainty that both
conditional civil and criminal immunity have been or will be
If the new coordinated approach is a success, it will remove a
potential disincentive for applicants and increase the
effectiveness of the ACCC's immunity policy and cartel
NO SET COOPERATION DISCOUNT PERCENTAGES
The proposed new policy does not specify up-front cooperation
discount percentages, but users will be assisted by additional
details in the proposed new policy regarding the factors the ACCC
will consider in assessing leniency applications, as well as
additional information regarding the CDPP's assessment of
criminal leniency applications.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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