Revised 'first-in' immunity policy for cartel conduct
The revised 'first-in' Immunity Policy for Cartel Conduct has been issued by the Australian Competition and Consumer Commission.
The new policy replaces the 2003 leniency policy* and follows a review to ensure that the policy was operating effectively.
"After considering written submissions and developments in competition law enforcement from a number of jurisdictions, the ACCC is now issuing an updated policy", ACCC Chairman, Mr Graeme Samuel, said today.
"The Immunity Policy will begin operation at 9 a.m. on 5 September 2005. The 2003 policy will continue to apply to applications made before this time.
"The policy will confer full amnesty from prosecution and penalty to the first eligible cartel participant to report its involvement in a cartel and cooperate with the ACCC's investigation and prosecution of other cartel members.
"The policy will not apply to cartel ringleaders or cartel members who have coerced others into taking part in the cartel.
"For eligible applicants the Immunity Policy will:
provide automatic full immunity to the first person who self reports his or her involvement in a cartel up until the point where the ACCC has legal advice that it has enough evidence. Under the former policy, full immunity was only available if the ACCC was unaware of the cartel when the participant self reported
implement a 'marker' system allowing potential applicants to secure their place in the immunity queue while they complete internal investigations
remove the requirement for immunity applications to be in writing
provide that where a corporation qualifies for immunity the default position is that all current and former employees will also have immunity
clarify that if the first to apply for immunity is unable or unwilling to meet all the requirements for immunity, a subsequent applicant may still qualify for immunity. This will maximise the incentive for applicants to cooperate fully with the ACCC, and
clarify that the ACCC may, in appropriate cases, approach an individual cartel participant about the availability of immunity. This will further destabilise cartels".
The ACCC has also issued a guideline to assist the interpretation of the Immunity Policy and a position paper on the issues arising from the use of leniency in cartel investigations.
"The changes to the policy will enhance the ACCC's ability to detect and prosecute cartels by making it easier for cartel participants to seek immunity.
"With the ACCC working more closely with public and private purchasers, it is now more likely that cartels will be detected.
"This, combined with the impending introduction of criminal sanctions for cartel conduct, including jail sentences for executives, and the enhanced Immunity Policy makes the decision about whether or not those involved in cartels should apply for immunity a 'no-brainer' ", he said.
*Since June 2003 the ACCC has received 21 applications for leniency.
