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Trends and climate
Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?
Other changes made to the cartels regime include:
- new exceptions for:
- a new clearance regime, which allows businesses to apply to the Commerce Commission to test the legality of an arrangement before proceeding.
Cartel enforcement is an ongoing priority for the Commerce Commission.
Are there any proposals to reform or amend the existing cartel regime?
Yes. There are two bills currently before Parliament that would amend the Commerce Act to:
- impose criminal penalties for cartel conduct (see the Commerce (Criminalisation of Cartels) Amendment Bill); and
- enable the Commerce Commission to accept court-enforceable undertakings from any person in connection with any matter relating to the enforcement of the Commerce Act, including cartel matters (see the Commerce Amendment Bill).
A further amendment to the Commerce Act, relating to international liner shipping services, has been passed by Parliament and will come into force in August 2019. The amendment will narrow the scope of an existing exemption from the cartel regime for certain services for the carriage of goods by sea between New Zealand and other countries.
Have there been any recent key cases?
To date, there have been no cases under the new cartels regime. However, recent key cases under the former cartels regime include:
- an air freight forwarding cartel (Commerce Commission v Kuehne + Nagel International AG  NZHC 705) – the participants in this cartel agreed that they would each pass on certain costs to consumers. Total penalties amounted to almost NZ$12 million;
- a livestock cartel (Commerce Commission v PGG Wrightson Ltd  NZHC 2921) – the participants in this cartel engaged in price fixing in connection with the introduction of a new regulatory regime. Total penalties amounted to almost NZ$3.3 million; and
- a real estate agents cartel (ongoing) (Commerce Commission v Lodge Real Estate Ltd & Ors  NZHC 3115) – the participants in this cartel agreed to pass on an increase in costs to their customers. Total penalties as of September 2018 amounted to almost NZ$19 million.
Full judgments are available on the Commerce Commission's website.
Which legislation applies to cartels and what are the relevant substantive provisions?
- enter into a contract or arrangement, or arrive at an understanding that contains a cartel provision; or
- give effect to a cartel provision.
A ‘cartel provision’ is a provision in an arrangement between two or more competitors that concerns goods or services that they supply or acquire in competition with one another. There are three types of cartel provision, defined in Section 30A of the Commerce Act:
- price fixing provisions;
- output restrictions; and
- market allocation provisions.
Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?
The Commerce Commission is New Zealand’s cartel regulator. Although the Commerce Commission investigates alleged breaches and may initiate enforcement action, only the courts can determine whether the Commerce Act has been breached and impose penalties. However, the Commerce Commission can grant clearances and authorisations for cartel conduct, which protect parties from action under the Commerce Act in respect of that conduct.
Are there any sectoral regulators with concurrent powers?
The Ministry of Transport is responsible for authorising codeshare arrangements between airlines.
Does the legislation apply to both formal agreements and informal practices?
The legislation applies to formal contracts and informal practices, such as arrangements and understandings. The fundamental requirement is that there is a meeting of minds that leads to a shared expectation about what each of the parties will do.
Does the legislation apply to individuals, companies or both?
Does the legislation subject companies to civil liability, criminal liability or both?
The Commerce Act imposes only civil liability for cartel conduct by individuals. However, there is currently a bill before Parliament that proposes to criminalise cartel conduct by individuals.
Does the legislation subject individuals to civil liability, criminal liability or both?
The Commerce Act imposes only civil liability for cartel conduct by individuals. However, there is currently a bill before Parliament that proposes to criminalise cartel conduct by individuals.
Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?
If the proposal to criminalise cartel conduct becomes law, the act (as amended) would allow criminal penalties to be imposed only if the defendant intended to engage in cartel conduct at the time that they entered into, or gave effect to, the cartel. The commission and lawmakers have informally stated that criminal penalties will only be sought for the most egregious types of cartel conduct. Under the proposed amendments, either civil or criminal penalties can be imposed for particular conduct, not both.
No specific guidance has yet been issued on how the commission would decide whether to seek criminal or civil penalties in any particular case. The commission has stated that it intends to update its Enforcement Response Guidelines (which include its Criminal Prosecution Guidelines) to reflect the 2017 changes to the cartel prohibitions, and it is likely that the commission will do so if new laws are passed to criminalise cartel conduct.
Are there any sector-specific offences or exemptions?
There are no sector-specific offences. The Commerce Act exempts certain international liner shipping services from the cartel regime. An amendment to the Commerce Act, which will come into force in August 2019, will narrow the scope of this exemption.
Other legislation includes specific exemptions from the Commerce Act for particular activities. Examples include:
- Sections 159K and 274 of the Education Act 1989;
- Section 130 of the Electricity Industry Act 2010;
- Sections 156AZC, 156AZD and 159AZF and Clause 9 of Schedule 3A to the Telecommunications Act 2001;
- Section 43ZZR of the Gas Act 1992; and
- Section 305 of the Accident Compensation Act 2001.
To what extent, if any, does the legislation apply to extraterritorial conduct?
The Commerce Act applies to conduct outside New Zealand by any person resident or carrying on business in New Zealand, to the extent that such conduct affects a market in New Zealand.
It is possible for companies based overseas to be ‘carrying on business in New Zealand’, including through a New Zealand subsidiary or agent.
A ‘market in New Zealand’ includes a market that is based partly in New Zealand and partly in another jurisdiction.
Initiating an investigation
Who can initiate an investigation of potential cartel conduct?
The Commerce Commission can initiate an investigation into potential cartel conduct, either of its own volition or on receiving a complaint.
If an investigation is initiated by complainants or third parties, what rights (if any) do they have?
Complainants or third parties have no particular rights in relation to a Commerce Commission investigation.
The Commerce Commission takes reasonable steps to communicate with a complainant on opening and during an investigation, but the communications will usually be limited to information about the progress and the likely timing of the investigation.
What obligations does a company have on learning that an investigation has commenced?
Companies are usually required to retain documents while the Commerce Commission conducts its investigation. The Commerce Commission may request that a company retains all relevant hard copies and electronic or digital records that may be relevant to the investigation. It may also request that any routine or otherwise planned document and information destruction be suspended or cancelled until after the investigation is complete.
It is an offence to knowingly mislead or deceive the Commerce Commission, including through the destruction of relevant documents or the selective provision of documents in response to a request.
There is no obligation to cooperate with an investigation by the Commerce Commission, but cooperation usually results in a discount being applied to any penalty that might be imposed.
What obligations does a company have if it believes that an investigation is likely?
See the response above.
What are the potential consequences of failing to act or delaying action?
Delaying action or failing to act early in relation to a Commerce Commission investigation may be harmful to a party's interests if the commission later decides to take action. In contrast, the courts will consider cooperation with the commission's investigation when considering penalties.
Formal stages of investigation
What are the formal stages of and approximate timeframe for investigations?
No formal stages or timeframes apply to cartel investigations. The Commerce Commission has broad discretion as to how it conducts investigations. In general, there are two stages to an investigation. The first is the screening and prioritisation stage. The commission uses this stage to decide whether to investigate a potential cartel and may gather preliminary information. If the commission decides that an investigation is warranted, it proceeds to the investigation stage.
When the commission has gathered enough information, it will decide whether to take enforcement action or close the investigation with no further action.
What investigative powers do the authorities have?
Under Section 98 of the Commerce Act, the Commerce Commission has the power to require a person or company to:
- provide it with written information;
- produce documents; and
- give written or oral evidence.
This could include requiring a person to attend an interview.
The commission may also apply for and execute a search warrant that allows it to seize documents, computer discs, hard drives, mobile phones and other electronic devices, within the scope of the warrant.
The commission has limited powers to conduct searches without a warrant.
Companies and individuals may also provide the commission with information and documents or agree to be interviewed on a voluntary basis.
What is the geographic reach of public enforcement actions?
If the Commerce Commission has a formal cooperation agreement with a regulator in another jurisdiction, it may ask the regulator for investigative assistance. This could include the other regulator exercising its coercive powers to gather information.
Special provisions in the High Court Rules 2016 set out a process for issuing subpoenas to persons in Australia requiring the production of documents or things, for the purpose of trans-Tasman competition proceedings.
Otherwise, unless an overseas party has submitted to the Commerce Commission's jurisdiction, it is difficult for the commission to exercise its investigative powers against that party. The commission could exercise its powers to require a New Zealand-based party to produce any evidence that it holds, but this would not extend to any related companies outside New Zealand.
When is court approval required to invoke these powers?
The Commerce Commission is not required to obtain court approval to use its investigative powers under Section 98 of the Commerce Act. The commission must obtain a warrant from an issuing officer (ie, a judge or other authorised person) in order to conduct a search and must obtain the leave of a judge for the issue of subpoenas to persons in Australia.
Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?
Yes, the Commerce Commission can apply for a warrant to conduct searches of business and personal premises. The commission may request the assistance of others to carry out a search.
Although the commission is not required to wait for the occupier's legal advisers to arrive, if requested, it will usually provide an opportunity for the occupier of the premises being searched to contact its legal advisers.
What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?
If asked, parties subject to a search warrant must give reasonable assistance to the Commerce Commission. This can include:
- assisting the commission to identify and locate the information that it requires;
- providing keys, passwords or other information or tools required to undertake the search; and
- accessing or reproducing stored or recorded information.
Resisting, obstructing or delaying the execution of a warrant is a criminal offence. Failing or refusing to comply with a Section 98 notice is also an offence. Such offences are punishable by fines of up to NZ$100,000 (for individuals) and NZ$300,000 (for companies).
Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?
Yes, New Zealand recognises attorney-client privilege under both common law and the Evidence Act 2006. Privilege may extend to the advice of in-house counsel.
Parties subject to a Section 98 notice or a search warrant are not required to provide the Commerce Commission with privileged material.
Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?
Although a party cannot refuse to comply with a Section 98 notice on the basis that doing so may incriminate it, any statement made by a person in response to a question put by or before the Commerce Commission is generally not admissible in proceedings for pecuniary penalties against that person.
What is the process for objecting to an authority’s exercise of its claimed powers?
In general, the only way to challenge the Commerce Commission's exercise of its powers under the Commerce Act is by way of judicial review.
It may be possible to refine the scope of a Section 98 notice, or extend the time available to produce the information described in a Section 98 notice, by raising any concerns with the commission. However, that is not a formal process provided for in the Commerce Act.
Publicity and confidentiality
What information about investigations will be made publicly available and at which stage(s) of the process?
The Commerce Commission maintains a case register on its website that lists some of its current and past investigations. Entries on the case register may record the names of the relevant parties or simply the sector in which the conduct occurred.
The register is a recent development and it is not clear how the commission decides what information to make available on the register. In the past, the commission's public statements about cartel investigations have typically been limited to announcing that an investigation has been opened (if the investigation is of considerable public interest or in order to elicit further information from the public) or that it has decided to take enforcement action. If the commission decides to close an investigation without taking enforcement action, it generally does not issue a media release (unless the matter is of significant public interest).
The commission avoids commenting on any matter that is before the courts.
Is any information automatically confidential and is confidentiality available on request?
Information is not automatically confidential, but parties can request that their information be kept confidential.
If the commission accepts that information is confidential, it may still disclose it in some circumstances. For example, the commission may be required to disclose information if:
- it is in the interests of public safety;
- the information concerns other criminal offences; or
- the commission receives a request under the Official Information Act 1982 (New Zealand's freedom of information legislation).
In relation to the latter, the act provides conclusive and good reasons to withhold information. Relevant grounds to withhold information that is part of an active investigation may include whether releasing the information is likely to:
- prejudice the maintenance of the law; or
- prejudice unreasonably the commercial interests of the person who supplied or is the subject of the information, where that prejudice is not outweighed by public interest considerations that favour releasing the information.
The commission can issue confidentiality orders under Section 100 of the Commerce Act to prevent the disclosure of information to others during an investigation if it is necessary or desirable to protect the integrity of the investigation.
The commission also operates a whistleblowing tool, which allows a person to anonymously report cartel conduct. Leniency is not available to parties involved in cartel conduct reported through the whistleblowing tool.
Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?
Yes, the Commerce Act enables the Commerce Commission to enter into cooperation agreements with overseas regulators to enable them to share information and provide one another with investigative assistance.
At present, the Commerce Commission has cooperation agreements with the Australian Competition and Consumer Commission and the Canadian Competition Bureau. The Commerce Commission also has an arrangement in place with the Taiwan Fair Trading Commission.
Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?
The Commerce Act allows the Commerce Commission to provide compulsorily acquired information to any overseas regulators with whom the commission has a cooperation agreement (at present, the Australian Competition and Consumer Commission and the Canadian Competition Bureau) if certain conditions are met. The Commerce Commission can share this information in the absence of consent from the party that provided the information or that is the subject of the information (although those parties must usually be notified of the information sharing).
If the commission wishes to share voluntarily provided confidential information with an overseas regulator, it will seek the consent of the party that supplied the information to share or discuss it with another agency. If that party declines to grant consent, this may be considered by a court in evaluating the degree to which the party has cooperated with the commission's investigation (which may be relevant to any penalty).
How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?
The Commerce Commission has discretion to determine whether to issue court proceedings in relation to alleged cartel conduct. In New Zealand, only the courts have the power to determine whether the Commerce Act has been breached and impose penalties.
The commission may agree to make submissions to the court jointly with the respondent. This is common when a respondent has cooperated with the commission's investigation and may include making joint submissions to the court on an appropriate penalty.
Agreeing a penalty generally involves the respondent admitting one or more breaches of the Commerce Act and:
- agreeing with the Commerce Commission a statement of facts and the scope of admissions;
- agreeing with the Commerce Commission a range for an appropriate penalty; and
- making a joint submission with the Commerce Commission as to why the penalty range is appropriate.
However, the court must determine whether the penalty is appropriate in the circumstances. The court may impose a penalty which is higher or lower than the penalty range agreed between the commission and the respondent.
A cartel investigation can also be resolved out of court. For example, in some circumstances, the commission may decide not to issue proceedings and instead issue a party with compliance advice or a warning letter.
What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?
See the above answer.
If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?
The Commerce Commission will issue proceedings against the respondents in the High Court. If the respondents do not admit liability, the matter will go to trial.
Which party must prove its case? What is the relevant standard of proof?
The party alleging cartel conduct (usually the Commerce Commission, but potentially a third party) bears the burden of proof and must prove its case on the balance of probabilities.
Is there a hearing? If so, what is the process for submitting evidence and testimony?
Yes. Evidence is presented by way of an affidavit and witnesses may be subject to cross-examination. Expert evidence may also be given by way of an affidavit and in person.
What are the accused’s procedural rights?
Documents referred to and used in the preparation of pleadings are disclosed at the outset. Further discovery may be ordered by the court. Respondents have the usual rights to the observance of natural justice and the recognition of privilege.
What is the appeal process?
Appeals against High Court decisions are made to the Court of Appeal. A further appeal to the Supreme Court is available, but only with the leave of that court.
To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?
Only a court has the power to find a breach of the Commerce Act and impose penalties. In general, the High Court will decide the facts of the case and whether the conduct breaches the Commerce Act. High Court decisions can be appealed on their merits. Penalties may also be appealed.
Penalties for companies
What are the potential penalties for companies involved in a cartel?
A pecuniary penalty for a body corporate, in respect of each act or omission, must not exceed the greater of:
- NZ$10 million; or
- if the conduct occurred in the course of producing a commercial gain:
- three times the value of the commercial gain, if the commercial gain can be readily ascertained; or
- 10% of the turnover (generally, the gross revenues of the body corporate in New Zealand) of the body corporate and its interconnected bodies corporate, if the commercial gain cannot be readily ascertained.
To date, the highest penalty imposed in New Zealand on a single company that engaged in cartel conduct is NZ$7.5 million.
Are there guidelines in place for penalties? If not, how are penalties normally calculated?
When determining the appropriate penalty, the court will consider:
- the duration of the contravening conduct;
- the seniority of the employees or officers involved in the conduct;
- whether the conduct was deliberate;
- the extent of any benefit derived from the conduct;
- the degree of market power held by the respondent;
- the role of the respondent in the impugned conduct;
- the size and resources of the respondent;
- the degree of cooperation by the respondent with the Commerce Commission;
- whether liability has been admitted;
- the extent to which the respondent has developed and implemented a compliance programme; and
- whether the respondent has been involved in similar conduct in the past.
The court will also examine the penalties imposed in previous cases involving similar conduct.
Do the authorities take into account any penalties imposed in other jurisdictions?
How can a company mitigate its exposure to fines?
Companies can mitigate their exposure to penalties by:
- cooperating with the Commerce Commission's investigation, including by entering into a cooperation agreement with the commission; and
- making early admissions.
Penalties for individuals
What are the potential penalties for individuals involved in a cartel?
A pecuniary penalty for an individual must not exceed NZ$500,000 for each act or omission. To date, the highest penalty imposed in New Zealand on an individual who engaged in cartel conduct is NZ$100,000.
If a person has entered into or given effect to a cartel provision, the court can prohibit that person from being a director or promoter of a body corporate, or from taking part or being directly or indirectly concerned in the management of a body corporate, for up to five years.
No other penalties can be ordered.
Do the authorities take into account any penalties imposed in other jurisdictions?
Is a company permitted to pay a penalty imposed on its employee?
No, it is unlawful for a company to indemnify (before or after the conduct) a director, employee, agent or former director from penalties imposed as result of cartel conduct.
Is a company permitted to continue to employ an employee involved in cartel conduct?
Yes, provided that continued employment of the employee does not contravene any court orders prohibiting a person from:
- being a director or promoter of a body corporate; or
- taking part or being directly or indirectly concerned in the management of a body corporate.
Private damages actions
Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?
Private individuals can take court action for breaches of the Commerce Act.
What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?
Exemplary damages may be awarded even if a court has ordered the party to pay a pecuniary penalty. However, any awards for exemplary damages will take into account the amount of any pecuniary penalties imposed for the same conduct.
An action for damages must be commenced within three years of discovering the conduct giving rise to the contravention or within three years of when it ought reasonably to have been discovered. An action for damages cannot be commenced 10 years or more after the conduct giving rise to the contravention took place.
The Commerce Commission or any other person may also apply to the court for an injunction restraining a party from engaging in, attempting to engage in, aiding, abetting, inducing, being involved in or conspiring to engage in cartel conduct.
How are the amounts of any damages, costs or attorneys’ fees calculated?
When claiming damages, a plaintiff must show a causal link between the cartel conduct and the loss or damage that the plaintiff claims to have suffered. In New Zealand Bloom Ltd v Cargolux Airlines International SA ( NZHC 109), the High Court held that a party to a cartel is liable for loss or damage caused by the party entering into and giving effect to a cartel, but not necessarily for loss or damage caused by all other parties to the cartel. However, the High Court left open the possibility that one cartel participant's market presence could cause others to enter into and give effect to a cartel, making that cartel participant liable for loss or damage resulting from the other parties' conduct.
Any awards for exemplary damages will consider the amount of any pecuniary penalties imposed for the same conduct.
Costs are calculated in accordance with the High Court Rules 2016.
Have there been any notable recent cases in which a private action was the subject of adjudication?
Private actions are rare. New Zealand Bloom has not progressed since the High Court identified defects with the statement of claim.
Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?
The Commerce Act does not refer to class actions. Class (or representative) actions can be pursued if permitted by Rule 4.24 of the High Court Rules 2016. Class actions are subject to the usual civil procedure rules.
Immunity and leniency
Immunity and leniency programmes
Is an immunity and leniency programme available for companies? If so, how does it operate?
Yes. The Commerce Commission has a cartel leniency policy and companies may benefit from immunity and leniency under that policy. The leniency policy has been an effective tool for breaking cartels based in New Zealand and for producing settlements in international cartel cases.
Leniency is available to the first party to report a cartel to the commission. Parties seeking leniency apply for a marker from the commission and are placed in a queue for conditional immunity based on the order of their approaches. If the first party's conditional immunity is revoked (eg, because it failed to provide sufficient evidence of the cartel), the next person in the queue benefits from conditional immunity.
The practical effect of leniency is that a party will receive conditional immunity from prosecution by the commission. Leniency does not protect a party from any action taken by third parties.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
Yes, leniency and conditional immunity can be declined or withdrawn if the party:
- fails to cooperate fully with the Commerce Commission's investigation and court proceedings;
- ceases to provide information that it has to the commission; or
- is found to have coerced others to participate in the cartel (eg, by threatening physical or serious economic harm or through intimidation).
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Parties in the queue after the first party to report get the benefit of cooperation. The benefit of cooperation is a discount on the penalty that the party may otherwise be ordered to pay. The extent of any discount is based on the nature of the party's cooperation and the value of the information that the party provides, rather than the order in which the parties offered to cooperate with the Commerce Commission.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
Where the conduct involves a group of companies wholly owned and solely controlled by a leniency applicant, leniency will extend to the group. The commission may, at its discretion, extend leniency to other companies partly owned or controlled by the applicant. Directors, officers and employees of any relevant company and subsidiary can usually rely on derived conditional immunity (or cooperation benefits) provided that they cooperate with the Commerce Commission's investigation.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
The Commerce Commission's cartel leniency policy applies to both companies and individuals. It largely operates in the same way for both.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
Many of the cartel investigations that the Commerce Commission conducts are initiated by an immunity application from one of the cartel participants. Notable recent cases where an investigation included an application for leniency from one of the participants are:
- Commerce Commission v Kuehne + Nagel International AG ( NZHC 705), regarding air freight forwarding; and
- Commerce Commission v Carter Holt Harvey ( NZHC 531), regarding timber products.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
Cartel conduct is not currently a criminal offence in New Zealand.
What is the procedure for a leniency application?
At the outset, a party or its legal adviser applies for a marker to the party's position as a leniency applicant (or a cooperation applicant). The Commerce Commission advises if a marker is available, and the requirements the party must meet to perfect the marker.
The party then has a limited amount of time to perfect the marker by providing sufficient information on the nature of the cartel to the Commerce Commission. In practice, the party will provide as much information as the commission requires in order to secure conditional immunity and conclude a conditional immunity agreement.
The cartel leniency policy states that the party must admit to participating in a cartel and participating (either at present or in the past) in conduct in respect of the cartel that may breach the Commerce Act. The party must also end or promise to end its participation in the cartel.
As part of meeting the conditions of immunity, the party must fully and continually cooperate with the commission's investigation.
What is the typical timeframe for consideration of a leniency application?
A leniency applicant usually has 40 days to perfect a marker.
What information and evidence is required?
To perfect a marker, the information and evidence that the applicant must provide to the commission generally includes:
- details of the arrangements, including the goods and services affected by the cartel, the cartel participants and the duration and operation of the cartel;
- supporting documents, such as statements outlining contact with competitors and any agreements reached, copies of emails and correspondence, telephone records and calendar entries;
- details of the cartel arrangements given effect to in relation to New Zealand, if the cartel arrangements were entered into outside New Zealand;
- details of any internal investigation of the cartel that the applicant may have undertaken or plans to undertake;
- details of how information relating to the cartel has been stored; and
- whether the applicant has applied for immunity in any other jurisdictions.
In practice, the Commerce Commission will often require an investigation and report by an independent party, such as the applicant's lawyers.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
The Commerce Commission's leniency policy guidelines state that the commission will endeavour to protect confidential information provided by holders of a marker or conditional immunity to the fullest extent. However, the commission may test information provided with third parties.
What level of cooperation is required from applicants?
The immunity agreement signed by the applicant and the Commerce Commission generally includes a standard condition that the applicant must maintain continuous, complete and expeditious cooperation with the commission throughout the investigation and any civil proceedings.
Cooperation from parties that are not granted immunity is also rewarded. To qualify for the exercise of a lower level of enforcement action or the commission choosing to seek a lower penalty, the information provided must add significant value to the investigation. The earlier that it is provided, the more value the information will carry. The number of parties that seek to cooperate with the commission also affects the value of the information that they provide. The cooperation agreement signed by the cooperating party and the commission generally requires that the party must maintain continuous, complete and expeditious cooperation with it throughout the investigation and any civil proceedings.
If an individual or company has agreed to cooperate with the commission's investigation, but fails to do so, the commission can withdraw its indication that it would seek a lesser penalty for that individual or company.
What confidentiality protection is offered to applicants?
Entering a leniency or cooperation agreement is usually confidential, until a settlement is approved by a court.
Can the company apply for a marker? If so, under which conditions?
Yes. Companies, as well as individuals, can apply for a marker.
If a leniency applicant with a marker fails to provide the additional information in the timeframe agreed with the Commerce Commission, other cartel members that have applied for immunity in the meantime can be given the opportunity to provide the required information.