Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The Commerce Act does not contain any provision for leniency. However, the Commission has issued guidelines providing that in its discretion it may seek lower penalties or take no enforcement action against individuals who cooperate fully with the NZCC (Cartel Leniency and Immunity Policy Guidelines of July 2021).
Immunity is granted to the first member of a cartel to approach the Commission and p …

Leniency

Under Part II of the Commerce Act (Section 7 et seq.), a cease and desist order may only be awarded by a cease and desist Commissioner where, i) after investigating an alleged offense, a Commission staff member submits a report recommending that a cease and desist order should be sought; ii) the Commission agrees with such recommendation and iii) the person against whom it is sought is notified in writing of the nature of the alleged offense, the terms of the proposed order and the reasons behind its adoption.

The effect of a cease and desist order is to restrain conduct for any period and on any terms that are specified in the order. A cease and desist order may require a person to do something only if the Commissioner is satisfied that restraining the person from engaging in the conduct will not restore competition, or the potential for competition, in a market.

Cease and desist orders

The High Court has the authority to impose fines for violations of any provision of Part II of the Act dealing with anticompetitive practices (Section 80). After the 2001 modifications, violations of Part II of the Act by a corporation may be punished by exemplary damages of either three times the amount of the unlawful gain, if ascertainable, or 10% of annual turnover, up to a maximum of NZ$10 million (US$ 6.3 million). The 2001 modifications also prohibit a corporate entity from indemnifying an individual for anticompetitive activity. The breach of a cease and desist order of the Commission is punishable by a fine of up to NZ$ 500,000 (US$ 319,406).

Fines

The Commerce (Criminalisation of Cartels) Amendment Act of 2019, which entered into force on 8 April 2021, instituted criminal sanctions in New Zealand competition law for offenses such as price-fixing, restriction of output or market allocation. 

The criminal fine incurred by undertakings is the greater of: (i) NZ$ 10 million (US$ 6.3 million) or (ii) either 3 times the profit resulting from the infringement or 10% of the undertaking's turnover or that of the group to which it belongs where the profit is not ascertainable.

Individuals incur up to 7 years of imprisonment and/or a fine of up to NZ$ 500,000 (US$ 336,000).

As a defense, the offender is entitled to plea that he/she reasonably believed that one or more of the available exemptions under the Commerce Act applied to its conduct. 

Criminal sanctions

The Commerce Act does not contain any provision for leniency. However, the Commission has issued guidelines providing that in its discretion it may seek lower penalties or take no enforcement action against individuals who cooperate fully with the NZCC (Cartel Leniency and Immunity Policy Guidelines of July 2021).

Immunity is granted to the first member of a cartel to approach the Commission and provide information establishing a breach of the Act, identifying the parties involved and detailing the operating mode of the cartel and how it affects consumers. The applicant must continue to provide information and cooperate with the Commission throughout the investigation and any court proceedings. Immunity, however, does not prevent third parties for bringing an action for damages.

Full cooperation by other cartel members is rewarded by a lower level of enforcement action from the Commission or a lower level of penalty being recommended to the court.

Finally, under the “Amnesty Plus” program, a cartel member not eligible for immunity in relation to a specific cartel, may be eligible for “Amnesty Plus” if it reveals its involvement in another cartel that the Commission was unaware of. Eligibility to “Amnesty Plus” means immunity from fines related to the second cartel and a recommendation for a lower level of penalty in relation to the first cartel.

Global Competition Law

1154. Leniency

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

1154. Leniency

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise