When the carrot resembles a stick …

Deniz Kayis and Rob Nicholls

Competition and Consumer Law Journal

Deniz Kayis and Rob Nicholls, ‘When the carrot resembles a stick: The exclusion of concerted practices from the ACCC’s revised immunity policy’ (2020) 27(3) Competition and Consumer Law Journal 187

Abstract

The Australian Competition and Consumer Commission has successfully litigated number of major cartel cases connected to a party’s defection or cooperation. In October 2019, the Australian Competition and Consumer Commission revised its cartel immunity policy and, among other things, excluded immunity for contraventions of the concerted practices provision. This article examines the purpose of immunity policies and their use in Australia. It analyses the merits and drawbacks of excluding concerted practices from immunity. It proposes an alternative approach using an appropriated ‘descending discount’. The proposal addresses both the Commission’s desire to not allow overly easy access to full immunity and the need to provide incentives for cartel members to defect.