04 November 2019
The ACCC has released a revised Immunity and Cooperation Policy for Cartel Conduct (Immunity Policy) – the first significant update of the policy since 2014. The revised Immunity Policy applies to all immunity applications made from 1 October 2019.
In parallel, the Commonwealth Director of Public Prosecutions (CDPP) released a revision of its prosecution policy which works together with the ACCC Immunity Policy. The ACCC also released revised Frequently Asked Questions (FAQs) which provide more practical guidance.
The revised Immunity Policy narrows the circumstances in which immunity is available, and is intended to provide greater clarity as to what is expected of an immunity applicant and how the ACCC will treat information provided to it during the ‘proffer’ and cooperation stages of an immunity application.
The ACCC has also set up a whistleblower portal, which will allow whistleblowers to report information anonymously but without seeking immunity.
If the ACCC is satisfied that it is not already in possession of information that is likely to establish at least one cartel contravention (whether civil or criminal), civil immunity will be granted on a conditional basis.
The prior edition of the Immunity Policy identified this window of opportunity as closing once the ACCC has received ‘written legal advice that it has reasonable grounds to institute proceedings for cartel conduct’, which could take some time. The revised Immunity Policy narrows this window of opportunity significantly, particularly where the ACCC may receive materials from international regulators, as opposed to through its own investigations. This emphasises the importance of testing on a hypothetical anonymous basis whether a ‘marker’ (discussed below) is available as soon as possible.
This differs from the UK OFT’s leniency guidelines which allow the possibility that leniency but not immunity may be granted to a qualifying immunity applicant. In the United States, Type A leniency is available if the Department of Justice has not yet received information about the activity from another source, and Type B immunity is available if the Department of Justice has not yet received evidence against the company that is likely to result in a sustainable conviction.
Following the introduction of a prohibition on anticompetitive ‘concerted practices’ in 2017, the ACCC expanded the application of the Immunity Policy to cover concerted practices, as well as cartel conduct. The revised Immunity Policy winds back that expansion, and from 1 October 2019, immunity will no longer be available for concerted practices which are not cartel conduct.
The ACCC recognises the potential for some conduct to constitute both cartel conduct and a concerted practice. However, this change in policy is unsympathetic to the issue. It is also at odds with other jurisdictions, such as the UK and EU, where immunity can be available for concerted practices.
This puts corporations evaluating conduct at the margins of cartel conduct and a concerted practice in a very difficult position. If a corporation makes an immunity application, but the ACCC concludes the conduct only constitutes a concerted practice, it will have disclosed information about unlawful conduct to the ACCC and conditional immunity will not be granted. In these cases, the Immunity Policy makes clear that the ACCC can use that information indirectly in an investigation as to whether the concerted practices prohibition (or any other prohibition) has been contravened. Such an applicant can have recourse to the ACCC’s Cooperation Policy for Enforcement Matters, under which the ACCC may decide not to prosecute certain conduct or to provide partial immunity.
An additional narrowing of the scope of the Immunity Policy is that it will not apply to corporations or individuals who have unilaterally attempted (without success) to get others to engage in cartel conduct. However, a current or former individual employee, officer or director of a corporation that attempted to cause others to engage in cartel conduct can be eligible for immunity if they meet all of the immunity conditions and can provide material assistance in proceedings against another party. The FAQs indicate that this may cover circumstances where an individual is able to provide information about their current or former employer attempting to induce a competitor to form a cartel.
The majority of conditions to be satisfied for immunity to be granted have not changed.
In summary, the process starts by approaching the ACCC (which can be done on an anonymous or hypothetical basis), describing the nature of the conduct in sufficient detail to allow the ACCC to confirm if any other person has applied for immunity or sought a marker for the same conduct.
If the applicant is first in, they will be granted a ‘marker’, preserving their position for a limited period of time, to allow them to demonstrate an entitlement to conditional immunity. The process then moves to the ‘proffer’ stage, in which the holder of the marker must demonstrate that they meet the requirements for condition immunity, being that:
Applicants for ‘derivative immunity’ (i.e. identified officers and staff of a corporate immunity applicant) are also required to enter cooperation agreements if they seek immunity.
At the same time, the CDPP will receive a recommendation from the ACCC as to whether immunity from criminal prosecution should be granted. The CDPP will exercise its own independent discretion in assessing the immunity application. If the ACCC ultimately does not grant immunity, or if the marker lapses or is withdrawn, the information provided in the proffer will not be used by the ACCC or CDPP directly as evidence against the immunity applicant, but may use that information indirectly.
Generally, an immunity applicant will be informed whether it has received conditional criminal immunity (by the CDPP issuing a ‘letter of comfort’) at the same time it is informed if the ACCC has granted conditional civil immunity. The letter of comfort states that the CDPP undertakes that the corporation (or individual) will not be prosecuted for the cartel conduct so long as they maintain eligibility criteria for conditional immunity and comply with their cooperation agreement.
The conditional immunity will not become finalised until all stages of the co-operation process have concluded, which may extend to giving evidence in proceedings against other cartel participants either in a civil or criminal prosecution.
The key differences or clarifications under the revised Immunity Policy are as follows.
Conditional immunity granted
ACCC will not use information provided by the applicant directly as evidence in, or indirectly in respect of, civil proceedings against the applicant under any other provision of the Competition and Consumer Act 2010 in respect of the cartel conduct for which immunity was granted
Conditional immunity not granted (including lapse of marker or withdrawal)
ACCC/CDPP will not use information provided by the immunity applicant directly, however the ACCC may use such information indirectly to further its investigation, including gathering evidence that could be used against the applicant or applicants for derivative immunity
Conditional immunity revoked
ACCC/CDPP may use any information provided by immunity applicants against them or any derivative immunity applicant in any civil or criminal proceedings
The ACCC also makes clear in the FAQs that, while it will use its best endeavours to protect any confidential information provided by an immunity applicant (including their identity) from being disclosed to third parties (that is, parties who are not participants in the cartel), there is no certainty that this will occur. The ACCC and the CDPP are subject to obligations to make information available to a defendant in any criminal proceedings as a matter of fairness owed to a defendant in those circumstances.
 The ACCC administers a policy intended to detect cartel conduct that provides complete immunity from prosecution to the first eligible cartel participant to cooperate fully with the ACCC.
 UK OFT Applications for leniency and no-action in cartel cases, paras 2.42- 2.43: “In exercising its discretion in relation to the grant of immunity or leniency in cases where it has a pre-existing investigation into cartel activity, the OFT may in some cases conclude that it will no longer accept any further leniency applications.
2.43 This may be because the OFT considers that it already has sufficient information to establish the infringement or offence in relation to all relevant parties, or that any additional information is unlikely to add significant added value such as to justify the resources necessary to handle the application…”
 Type A leniency provides greater certainty of derivative immunity for employees than Type B leniency; see Q 22 in DoJ FAQs: https://www.justice.gov/atr/frequently-asked-questions-regarding-antitrust-divisions-leniency-program.
 See the UK OFT Applications for leniency and no-action in cartel cases and EU Notice on Immunity from fines and reduction of fines in cartel cases
 Paras  and  and FAQs Q 59
 Evidence is used directly where the actual item of evidence would be presented in a court proceeding – e.g. an admission made, or a document provided in the cooperation process. Evidence is used “indirectly” where the ACCC or CDPP uses information derived from that direct evidence to further its investigation or in court proceedings– by reason of using information disclosed in the evidence to locate other items of evidence that can be used to build a case. For example – an oral admission may merely refer to an email, but not provide it. The email, obtained by other means could be deployed.
 Policy  and 60
 Issued under Section 6D of the Director of Public Prosecutions Act 1983 (Cth)
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