To perfect a marker, the applicant company or individual must provide the Commission with a statement.
This statement is often called a 'proffer'. The Commission will send the marker holder a letter detailing the types of information we require in the proffer in order to perfect their marker, and Commission staff will discuss the specific requirements in more detail with marker-holders. However the following is typically the minimum required information (with supporting evidence):
1. Details of the cartel arrangements, including:
the product(s) and/or service(s) affected by the cartel
the annual value of the market(s) affected by the cartel
the identities of the cartel participants (both company names and the names of key individuals if available) and their locations (if possible)
the geographic scope and duration of the cartel, including when the cartel arrangements were entered into and/or applied
how the cartel operated
who gave effect to the agreements.
2. All records and documents available to the applicant that provide evidence of the existence of anti-competitive agreements between cartel members, including (if available):
summaries of witness statements detailing contacts with competitors and any collusive agreements entered into
copies of relevant emails, instant messages and correspondence between conspirators
copies of relevant telephone records detailing communications between conspirators
copies of relevant meeting minutes, expense accounts, travel records, diary entries, etc, detailing physical meetings between conspirators
copies of any relevant internal reports, memoranda, meeting minutes etc, detailing any internal company discussions about the cartel and its operation
copies of any relevant tender documentation, pricing records, supply agreements etc, detailing how any collusive agreements were given effect.
Please note that the expression 'conspirators' includes facilitators who were not cartel members themselves.
3. If the cartel arrangements were entered into outside New Zealand:
details of how and by whom the cartel arrangements were given effect to in New Zealand
how the cartel arrangements were given effect to in terms of good(s) and/or service(s) supplied in or into New Zealand.
4. Details of any internal investigation of the cartel undertaken by the applicant to date and of any further internal investigation planned over the next six months.
5. Details of the information storage system used by the applicant including:
the types of storage sources of data held
where electronic storage systems such as computer servers are held
the changes to those systems over the past ten years that may affect the ability to recover electronic documents such as emails.
6. The names of other jurisdictions where the applicant has applied for a marker and/or conditional immunity and a status report on such applications.
7. Any other available information held by the applicant at a specified date that would assist the Commission to investigate the cartel arrangement. Ideally supporting evidence will be provided in its native electronic format (for example, .pst files for emails).
For more information see paragraphs 78 - 80 of the Cartel Leniency and Immunity Policy.