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New cartel law spurs release of ComCom's competitor collaboration guidelines

09 Jan 18

The Commerce Commission has released the final version of its guidelines for assessing collaborations between competitors, with a number of key changes made since the last draft.

The updates to the guidelines are a result of amendments to the law – specifically the Commerce (Cartels and Other Matters) Amendment Act 2017 (Amendment Act).

This law relates to cartel conduct in New Zealand, and the Competitor Collaboration Guidelines provide a broad overview of the Commission’s approach to enforcing the new law.

Here, the Commission’s role is not limited to enforcement action or adjudicating when parties apply for a clearance or authorization, but also includes providing information and guidance.

Commerce Commission chairman Dr. Mark Berry says the new law was introduced to provide for more pro-competitive collaboration between businesses while deterring cartel conduct.

Some of the key changes to Commerce Act include a new cartel prohibition with exceptions for collaborative activities, vertical supply contracts and Commission joint buying agreements.

“The guidelines are the result of a comprehensive consultation process with the business and legal community which included consultation on draft guidelines and revised draft guidelines,” adds Berry.

“The guidelines have been further amended to reflect changes to the Bill before it was passed in August 2017.”

The key changes since the last draft of the Guidelines are:

  • Criminalisation has gone – Parliament has dropped the provisions which would have imposed criminal sanctions for cartel conduct
  • Clearance is now a single stage process – we have adjusted our process for assessing collaborative activity clearances to reflect the removal of criminalisation
  • The Commission has updated the confidentiality provisions.

The Commerce Commission welcomes feedback on the 52-page Competitor Collaboration Guidelines, especially on whether there is any content missing that could be included in future editions. Feedback can be provided by email through the Commission’s website.

The guidelines can be found here.

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