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Challenges and co-ordination of leniency programmes – ACCC AND NEW ZEALAND COMMERCE COMMISSION – June 2018 OECD discussion

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This presentation Jill WALKER, Commissioner, New Zealand Commerce Commission, was made during the discussion “Challenges and co-ordination of leniency programmes” held at the 127th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 5 June 2018. More papers and presentations on the topic can be found out at oe.cd/2gt.

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Challenges and co-ordination of leniency programmes – ACCC AND NEW ZEALAND COMMERCE COMMISSION – June 2018 OECD discussion

  1. 1. OECD Competition Committee WP3 5 June 2018 Jill Walker, Commissioner, New Zealand Commerce Commission Marcus Bezzi, Executive General Manager, ACCC Trans–Tasman Leniency Cooperation
  2. 2. Trans-Tasman Cooperation 2 Statutory Framework Formal cooperation Informal cooperation Immunity & leniency policies • Commerce Act 1986 based on the Trade Practices Act 1974 • 1988 MOU on Harmonisation of Business Law and ss.36A & 46A • Trans-Tasman Proceedings Act 2010 • Single Economic Market Outcomes Framework 2009 • Cross appointments between agencies • MOU between agencies • Information Gateway provisions CER & inter- government agreements
  3. 3. • Cartel provisions (civil versus criminal) • Immunity and cooperation policies (consultation on policy reviews) • Capacity to share confidential information and use compulsory powers in limited circumstances: • S.99I Commerce Act 1986 (NZ)/s.155AAA Competition and Consumer Act 2010 (Aus) • ss.155A&B Competition and Consumer Act 2010/ ss. 98H&99A Commerce Act 1986 (in relation to ss.36A & 46A) Framework for Leniency Cooperation 3
  4. 4. From marker to outcome of investigation: • Coordinating information requests • Coordinating investigation strategies/focus • Coordinating case theories • Coordinating interviews of overseas personnel • Coordinating approach to outcomes • Sharing experience of problems dealing with applicants (e.g. non- cooperation) In Practice - Global and Trans-Tasman Cooperation 4  Largely not rely on statutory powers  Information gateways – providing assistance can bring forth immunity applications
  5. 5. For us: • Prioritisation of resources • More focused investigations on international conduct • Able to get up to speed on issues quicker • Ensuring we have not missed anything critical in our investigation approach and how we are assessing the matter. What are the benefits? 5
  6. 6. For the applicants: • Applicants are able to satisfy the information needs of both ACCC and NZCC in a systematic way • Parties are able to search for material in databases in a coordinated approach • Less disruption to their businesses – key staff are interviewed by both regulators in a coordinated manner What are the benefits? 6

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