Australia: ACCC releases draft revised immunity policy for cartel conduct

BACKGROUND

In 2013, the Australian Competition Consumer Commission (ACCC) undertook a review, including public consultation, of its current immunity policy for cartel conduct (2009 Policy). Following the consultation process and the release of a discussion paper seeking comments on key issues arising from consultation, the ACCC released a revised draft policy on 9 April 2014 entitled ACCC immunity and cooperation policy for cartel conduct (Draft Policy) and a Draft FAQs document, which supplements the Draft Policy.

The Draft Policy and Draft FAQs set out the new proposed procedures and criteria under which an applicant can apply for civil and criminal immunity for cartel conduct. The documents also set out the ACCC's new proposed leniency policy which is to apply to second, and subsequent parties, to come forward in relation to a cartel.

KEY CHANGES TO THE POLICY

• Removal of 'clear leader' requirement – Under the 2009 policy, a corporation is not eligible for immunity from ACCC-initiated civil proceedings if it is the 'clear leader' of the cartel or has coerced others to participate in the cartel. The Draft Policy removes reference to 'ringleader' and instead, eligibility for immunity (as well as leniency) requires that the application has not "coerced others to participate in the cartel".
• Streamlined process for granting conditional civil and criminal immunity – Under the 2009 Policy, conditional criminal immunity cannot be granted by the CDPP without a formal statutory undertaking, which on occasion resulted in the ACCC being in a position to confirm conditional civil immunity significantly earlier than the Commonwealth Director of Public Prosecutions (CDPP) via a "letter of comfort". That process often resulted in delays in the confirmation of conditional immunity and hence the entire investigatory process. The Draft Policy provides that if the CDPP decides to grant conditional immunity, it may issue the applicant with a letter of comfort to this effect which sets out the conditions for the grant of immunity and recognises the applicant's "first-in" status. Subsequently, the CDPP may still give the applicant a formal statutory undertaking regarding conditional criminal immunity prior to commencing criminal proceedings against another cartel participant.
• Confidentiality waivers in international cartels – The 2009 Policy does not contain any provision for the ACCC to share information disclosed by immunity applicants with competition regulators in other jurisdictions if the cartel has international implications. The Draft Policy facilitates the investigation of international cartels by indicating that the ACCC will, "as a matter of course", request an applicant who has also sought immunity in other jurisdictions to give a confidentiality waiver for the ACCC to share the applicant's information with foreign regulators. In the event that an immunity applicant is unwilling to grant the ACCC such a waiver, it will need to "explain why" the waiver cannot be provided as part of its obligation to provide full cooperation as per the immunity criteria.
• Guidance on civil leniency penalty reductions – The Draft Policy confirms that any penalty discounts or reductions in civil sanctions will be at the ACCC's discretion and will usually be determined at the end of the cartel investigation. However, the Draft Policy provides more detailed guidance regarding leniency, by setting out the specific factors that will be considered by the ACCC in determining the degree of penalty reductions. These factors include the timeliness of approaching the ACCC and the completeness of disclosure to the ACCC by the leniency applicant. In exceptional circumstances, the ACCC may grant a leniency applicant who cooperates fully with the ACCC full immunity from ACCC-initiated civil proceedings.
• Guidance on proffer requirements – The Draft FAQs provide more detailed guidance regarding the information to be included in proffers. For example, the ACCC will not accept a 'bare outline' or mere speculation about a cartel, but requires sufficient information to enable it to decide matters such as whether the applicant has coerced others to participate in the cartel and whether the applicant is ceasing its involvement in the cartel.
• Guidance on amnesty plus criteria – In contrast to the 2009 Policy, the Draft Policy provides more detailed guidance regarding the criteria for a grant of amnesty plus. If an applicant cooperating with the ACCC under the leniency policy in relation to one cartel investigation is the first to disclose to the ACCC a second unrelated cartel, the applicant may obtain 'amnesty plus', entitling it to a larger reduction in civil penalties in relation to the first cartel and conditional immunity in relation to the second cartel.

The Draft Policy and accompanying FAQs provide welcome additional guidance and certainty to businesses considering seeking immunity.

Submissions on the Draft Policy and Draft FAQs may be made until 7 May 2014.

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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