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Cartel conduct can result in higher prices and a reduction of choice and quality. Under the Commerce Act, businesses and individuals can face large financial penalties if they have been part of a cartel and individuals can be banned from running a company.

Business collaborations under COVID-19

We have developed guidance which explains to businesses and the public how the Commission will be approaching business collaborations reached in response to COVID-19 that risk contravening the Commerce Act.

Read more

Types of cartel conduct

Price fixing

Price fixing is where two or more businesses agree on what prices they will charge to avoid having to compete which each other. Price fixing is not limited to agreements between competitors setting a specific price for goods or services – it also includes competitors agreeing to fix any part of a price, or to set price according to an agreed formula.

Bid rigging

Bid rigging or collusive tendering occurs when there is an agreement among some or all of the bidders about who should win a bid between them. This may involve some potential bidders not bidding for a tender to support the designated winner and they might also agree the prices that the each party will bid for a tender. Such an agreement prevents open and effective competition and means procurers are unlikely to achieve best value for money for their business, customers, and in some cases, taxpayers.

Market sharing

Market sharing occurs when businesses collude to carve up markets and not compete for the same customers. This could be in relation to the sale of a specific product, a geographic area or a particular type of customer.

Restricting output

Restricting output is when two or more competing buyers or sellers agree to prevent, restrict, or limit the goods or services they are buying or selling or the goods or services that would likely be bought and sold.

Practical tips for businesses when engaging with competitors

  • Make sure that you and your staff are familiar with the requirements of the Commerce Act. Keep records of who has attended training.
  • Think carefully about who you are, or may be, in competition with, especially if sub-contracting is involved.
  • Do not agree prices, discounts or any matters relating to price with your competitors (unless it is a specific sub-contract you are discussing).
  • Do not agree to restrict output in any way, or to allocate customers or geographic markets between competitors.
  • Do not exchange pricing, how much you plan to produce in the future, customer information or which markets you sell into with your competitors.
  • If you are approached by another business to discuss pricing, allocating customers, bids for contracts or restricting outputs you should raise an objection straight away. Leave the discussion immediately.
  • Review internal documents, policies and procedures for compliance with the Commerce Act and seek independent legal advice.
  • If you become aware of anti-competitive conduct, contact the Commerce Commission straight away.

Taking action against cartels

The Commission prioritises enforcement cases involving cartel conduct because of the significant harm it can cause consumers, other businesses and in some cases taxpayers. See our most recent media releases on cartel conduct.

Read more about reporting cartel conduct

Exceptions under the Commerce Act

Some types of anti-competitive agreements and behaviours are exempt from the cartel prohibition in section 30 of the Commerce Act. These relate to:

  • collaborative activities (section 31)
  • vertical supply contracts (section 32)
  • joint buying and promotion agreements (section 33)
  • reasonable belief an exception to the Commerce Act applied (section 82C).

When assessing whether an exception applies to a particular agreement please assess the agreement carefully against the relevant exception contained in the Commerce Act.

Read more about exceptions under the Commerce Act PDF (788 KB)

Competitor Collaboration Guidelines

The Competitor Collaboration Guidelines outline our approach to enforcing the law introduced by the Commerce (Cartels and Other Matters) Amendment Act 2017, including:

  • the cartel prohibition (with exceptions for collaborative activities, vertical supply contracts and joint buying agreements)
  • the clearance regime for businesses that are proposing to enter into collaborative activities which risk breaching the law.

The guidelines also describe the Commission’s collaborative activity clearance process.

Read more about competitor collaboration PDF (2 MB)

Apply for collaborative activity clearance

A person that is, or will be, involved in a collaborative activity can apply for clearance to enter into an agreement that contains one or more cartel provisions. The clearance process is described in the Competitor Collaboration Guidelines.

Download the application form PDF (349 KB)

Advice for trade associations

Members of trade or industry associations are often competitors. This means that care must be taken to ensure that associations and individual members do not engage in anti-competitive behaviour that may breach the Commerce Act.

Read more about trade associations PDF (765 KB)

Leniency and Immunity Policy

The Commission has a leniency and immunity programme. The Commission is responsible for making decisions about civil leniency and cooperation. The Solicitor-General is responsible for granting criminal immunity. For details about leniency and immunity please see the Cartel Leniency and Immunity Policy and Solicitor-General guideline for immunity from prosecution for cartel offences.

Cartel Leniency and Immunity Policy Solicitor General Guidelines for immunity from prosecution for cartel offences

Additional guidance