ACCC not immune to review

Published On 03/10/2013 | By Hanna Gyton | Cartels, Enforcement, Reform

The ACCC has released a public discussion paper on its immunity policy for cartel conduct, inviting written submissions from interested parties on several key issues arising from its review. Earlier this year, the ACCC announced that it was conducting a review of its immunity policy, initially undertaking an internal consultation process involving members of the Commonwealth Director of Public Prosecutions (‘CDPP’) and a number of practitioners specialising in competition law and the immunity policy (previously blogged about here).

The ACCC’s immunity policy has been in place for many years, and was most recently issued in 2009 after the ACCC published general guidance on its policy, a set of interpretative guidelines and an outline of the ACCC’s approach to cartel investigations. The ACCC’s immunity policy encourages businesses and individuals to disclose cartel behaviour, assisting the ACCC with their investigations. As noted in the discussion paper, “domestic and international experience has demonstrated that an effective immunity policy encourages self-reporting of cartel conduct by participants. The threat of detection destabilises existing cartels and deters the formation of new cartels”.

The ACCC’s Chairman, Rod Sims announced that “[d]etecting, stopping and deterring domestic and international cartels is a priority for the ACCC…cartels harm consumers, businesses and the economy by increasing prices, reducing choice or distorting the ordinary processes of innovation and product development.”

Since publishing its policy in 2009, the ACCC has received just over 50 reports of cartel conduct under its policy. However, the ACCC realises the necessity in undertaking regular reviews of its immunity policy and determining the strengths and weaknesses. Recognising this need to review and improve the policy, as well as provide users with certainty and ensure both flexibility in its application and international conformity, the ACCC has identified 7 key issues upon which it seeks further comment from the public. These key issues include:

  • aligning the ACCC and CDPP processes in relation to granting civil and criminal immunity. This would involve the CDPP adopting a similar approach to the ACCC’s ‘letter of comfort’, which is given early in the investigation and stipulates the conditions of an applicant’s immunity, as well as the applicant’s first-in status;
  • removing the ‘clear leader’ criteria in assessing an applicant’s eligibility for immunity under the immunity policy and clarifying when an applicant may not be given immunity because they have coerced others into participating in the cartel;
  • providing guidance on the factors considered by the ACCC when determining the appropriate discount given to cooperating parties who have missed out on immunity, including how to measure the ‘value added’ by the applicant’s information or evidence to the ACCC which is otherwise unavailable;
  • providing further guidance and clarification on the ACCC’s Amnesty Plus program, directed towards applicants who have qualified for leniency under the Cooperation policy for enforcement matters;
  • improving certainty as to when and in what circumstances the ACCC will take action to revoke immunity. This would include an outline of the withdrawal process where an applicant has failed to meet its obligations and/or becomes ineligible for conditional immunity;
  • simplifying the format of the policy by creating two distinct policy documents setting out the criteria for conditional civil and criminal immunity and any frequently asked questions (modelled on the Canadian Competition Bureau’s approach); and
  • reviewing the ACCC’s policies in relation to recording oral applications, offering applicants waivers to enable the ACCC to share information with other jurisdictions, and the ACCC’s proffer interviews for first time users of the immunity policy wishing the clarify the requirements under the policy.

Whilst the ACCC has noted that the scope of the discussion paper is not to include a review of every aspect of its immunity policy but rather highlight the key issues which could impact the operation and administration of the policy, the ACCC has also broadly asked the public for any other comments in connection to its immunity and cooperation policies. The ACCC invites submissions in a non-confidential form up until 28 October 2013. The ACCC will then publish draft updated policy materials for comment on 25 November 2013, with a final revised immunity policy expected in early January 2014.

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