The guidelines set out the Commission's intended approach to the cartel prohibition, the exemptions, including the new collaborative activity exemption, and the clearance regime for cartel provisions relating to collaborative activities.
Purpose of these guidelines
The Commerce (Cartels and Other Matters) Amendment Bill (the Bill) amends a number of provisions of the Commerce Act 1986) (the Act). In particular, the Bill:
- introduces a new cartel prohibition, which replaces the current prohibition on price fixing
- provides three exemptions to the cartel prohibition for vertical supply contracts, joint buying arrangements, and collaborative activities
- enables parties involved in a collaborative activity that enter into an arrangement containing a cartel provision to seek clearance from the Commission for that arrangement
- makes engaging in cartel conduct a criminal offence, although criminal sanctions will not be available until two years after the Bill is passed.
The purpose of these guidelines is to explain:
- the cartel prohibition and the consequences of engaging in cartel conduct
- the three exemptions to the cartel prohibition for vertical supply contracts, joint buying arrangements, and collaborative activities
- the clearance regime for collaborative activities.
Because these guidelines are necessarily general, we apply them flexibly according to the facts of each case. The guidelines do not, and cannot, address every issue that might arise.
While we have provided examples in the guidelines to help illustrate key concepts, you should not assume that these examples apply directly to your own situation. In all cases the specific facts will determine how the Act applies. You should seek legal advice if you are in doubt.
These guidelines do not bind the Courts. It is ultimately up to the Courts to determine whether conduct breaches the cartel prohibition or if an exemption applies.
We may amend these guidelines from time to time, in accordance with developments in the relevant law and economics.
Note: For the purposes of consultation (and because we are consulting ahead of enactment in order to have the final guidelines in place as soon as possible after enactment) we have prepared these guidelines on the basis the Bill is incorporated into an Act in the form currently before the House.
You can download the full guidelines below.