12/01/2009

The Australian Competition & Consumer Commission's leniency policy

The IBA Antitrust Committee Leniency Working Group submitted comments to the Australian Treasury following the release of the Second Exposure Draft of the Australian Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.

On 25 November 2008, the working group provided comments to the Australian Treasury on the Australian Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. The Working Group made the following comments:

• The formulation of the cartel offence - The Working Group considers that the Bill is well intentioned by defining the cartel offence by reference to horizontal price fixing, output restrictions, market allocations and bid rigging. However, it is concerned that certain conduct that is not commonly referred to as ‘hardcore’ cartel conduct may be treated as such and a number of current exemptions typically available to legitimate business conduct around the world may be caught by the new provisions under the Bill.
• The extended meaning of ‘party’ - The Bill appears to deem any corporate-related body to the undertaking party to a contract, arrangement or understanding containing the cartel provision to also be a party to the contract, arrangement or understanding. The Working Group is concerned with the potential implications of such a definition.
• The impact of the ACCC’s leniency policy - The Working Group considers that the introduction of a criminal cartel offence without an ability to seek immunity from criminal prosecution poses a risk to the efficacy of the existing civil leniency programme and in turn, the effectiveness of a competition agency’s cartel enforcement regime.
  

The IBA Antitrust Committee Leniency Working Group is grateful to have been able to provide comments on the Bill and is happy to discuss them with The Treasury should it be considered to be of assistance.
Download the full submission here.

For more information, please contact Gonzalo Guzman at gonzalo.guzman@int-bar.org.