Contributed by: Sarah Keene, Troy Pilkington, Bradley Aburn and Chris Brunt
Published on: December 18, 2020
The New Zealand Commerce Commission (NZCC) and Crown Law this morning released draft revised guidelines regarding changes to the immunity and leniency policies for dealing with cartel conduct once it is criminalised in April 2021. The draft revised guidelines are available here and here. As set out in our previous alert (available here), cartel conduct between competitors is set to become a criminal offence, punishable by up to seven years imprisonment, from 8 April next year.
As is the common practice of competition law regulators around the world, the first member of a cartel to report it to the NZCC may be offered immunity from civil prosecution in relation to that conduct. However, in New Zealand, the only member of Government that is permitted to grant immunity from criminal prosecution is the Solicitor General. Accordingly, the revised guidelines contemplate a two stage process whereby:
The Solicitor General has a statutory obligation to exercise independent discretion when determining whether to grant criminal immunity for a leniency applicant. The introduction of a second discretionary decision-making body into this process does create additional uncertainty for parties considering whether to apply for immunity. Cognisant of that risk, the Crown Law guidelines note that "these guidelines also recognise that clarity, predictability and transparency are critical to this process."
Important aspects of this new scheme that warrant further attention include:
The NZCC has called for submissions on the draft guidelines by 10 February 2021. It will also be hosting a live stream on a seminar as part of this consultation process which can be accessed here on 27 January 2021 (further details are available here).
If you would like to discuss how the proposed policy could affect your business, or you would like assistance in considering your options for responding to the NZCC's request for consultation, please get in touch with Troy Pilkington or Sarah Keene.
Partner, Competition and Antitrust
Senior Associate, Competition and Antitrust
Competition and Antitrust