The immunity policy seeks to maximise the incentives for cartel participants to self-report their involvement in a cartel and to provide certainty for applicants about how the ACCC will deal with immunity applications.
The ACCC has issued its revised immunity policy and guidelines that commenced on 26 June 2009 following Royal Assent of legislation introducing new civil prohibitions and criminal offences in relation to cartel conduct.
One of the key changes to the immunity policy is the introduction of a requirement for corporate applicants to list current and former directors, officers and employees who seek derivative immunity as part of the corporate application.
The revised immunity policy has been in the public arena since December 2008 and now applies to applications for civil immunity from cartel conduct that may breach the civil cartel provisions in the Trade Practices Act 1974.
The ACCC anticipates that applicants will often seek immunity from both civil and criminal proceedings. All immunity applications shall be made to the ACCC in accordance with the procedures set out in the immunity policy and the immunity policy interpretation guidelines relating to applications for immunity from civil proceedings.
The immunity policy will confer full amnesty from ACCC-initiated civil proceedings and penalty to the first eligible cartel participant to report its involvement in a cartel and cooperate with the ACCC’s investigation and any subsequent action against other cartel participants.
Where immunity from criminal prosectution is sought, the ACCC will assess the application prior to submitting the application to the Commonwealth Director of Public Prosecution for his consideration as to whether it meets the requirements set out in Annexure B to the prosecution policy of the Commonwealth. If the director is satisfied that an applicant meets these requirements and decides to grant immunity from criminal prosecution, this decision will be communicated to the applicant at the same time as the ACCC decision in relation to civil immunity.
For the purposes of the immunity policy, cartel conduct comprises any of the following categories of conduct engaged in by two or more businesses who are, or otherwise would be, in competition with each other:
price fixing
market sharing including bid rigging, customer sharing and market allocation
agreements not to compete with each other or to limit or restrict competition between them
production or sales quotas.
The immunity policy applies to large and small businesses (whether or not they are incorporated) and to individuals who have engaged in cartel conduct affecting Australian markets. The policy will not apply to cartel ringleaders or cartel members who have coerced others into participating in the cartel. The full list of conditions is outlined in the immunity policy.
The immunity policy is to be read in conjunction with the immunity policy interpretation guidelines.
If an applicant is ineligible for immunity but wishes to cooperate with the ACCC, their cooperation may consider under the ACCC’s cooperation policy for enforcement matters.
