Does the authority cooperate with antitrust authorities in other jurisdictions?
MOFCOM may cooperate with antitrust authorities in other jurisdictions in accordance with relevant bilateral or multilateral agreements. MOFCOM has signed MOUs on antitrust cooperation with at least 10 countries, including the US, EU, Japan, South Korea, Canada, UK, Australia, Russia, South Africa and Kenya.
In principle, MOFCOM may share information with antitrust authorities in other jurisdictions without notifying the parties to the concentration, but it shall not disclose a party’s business secrets to another authority without obtaining the party’s waiver, and since legitimate business secrets are legally protected, there is no legal consequence if a party refuses to grant such a waiver.
Based on our experience, MOFCOM usually pays special attention to the merger review progress in other jurisdictions in the context of a multi-jurisdictional merger filing, the notifying party is expected to keep MOFCOM posted of such progress.
Under the EU merger control rules, the DCCA is obliged to cooperate with the Commission. Moreover, the DCCA cooperates with national competition authorities in other EU member states when a merger is subject to review in more than one member state. The parties to the merger will have to consent to the exchange of any confidential information between the national competition authorities.
The CCPC cooperates with competition agencies in other jurisdictions. The CCPC is a member of the International Competition Network (“ICN”) and the European Competition Network (“ECN”). The ECN facilitates cooperation in the consistent application of EU competition rules through arrangements for information sharing, assistance and consultation.
The CCPC notification form requires notifying parties to state whether the transaction is subject to review by any other competition or regulatory agency. If the transaction has been notified to another agency, the parties can expect the CCPC to contact each other. The CCPC's practice is to seek a waiver from the parties in respect of the exchange of information if it intends to contact a merger control authority in another jurisdiction.
The Israeli Antitrust Authority may cooperate with antitrust authorities in other jurisdictions. There are no formal consequences to refusing to grant a waiver allowing its confidential information to be provided to another authority, but this may theoretically prompt a rejection of the merger based on the lack of information to alleviate competitive concerns.
In international transactions, the JFTC normally asks the parties about the jurisdictions where they file notifications, and sometimes it wishes to communicate with authorities in other jurisdictions. The JFTC has executed cooperation agreements with certain authorities in other jurisdictions, including the US and EU, but most of such cooperation agreements are “first generation” agreements which do not allow the authorities to exchange case specific information. As a result, when the JFTC wishes to communicate with authorities in other jurisdictions during the review of a specific case, it requests the parties to submit a waiver. The request for waiver is not mandatory.
The OFC co-operates with the European Commission and other Member States’ national competition authorities within the European Competition Network (ECN). Following Council Regulation (EC) No 1/2003 of 16 December on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, the national competition authorities became empowered to apply Articles 101 and 102 of the Treaty on the Functioning of the European Union and to apply these articles concurrently with the national substantive competition law provisions where the agreement, practice or conduct may have an effect on trade between Member States.
The Authority is empowered to contact with certain regulatory authorities around the world to exchange information, including the European Commission. In this respect, Article 43 of Decision No. 1/95 of the EC-Turkey Association Council (Decision No. 1/95) authorises the Authority to notify and request the European Commission (Competition Directorate-General) to apply relevant measures if the Board believes that transactions realised in the territory of the European Union adversely affect competition in Turkey. Such provision grants reciprocal rights and obligations to the parties (EU-Turkey), and thus the European Commission has the authority to request the Board to apply relevant measures to restore competition in relevant markets.
Moreover, the research department of the Authority makes periodic consultations with relevant domestic and foreign institutions and organisations. The Commission has been reluctant to share any evidence or arguments with the Authority, in a few cases where the Authority explicitly asked for them.
Apart from those, the Turkish Competition Authority has international cooperation with several antitrust authorities in other jurisdictions. Additionally, the Turkish Competition Authority develops training programmes for cooperation purposes. In recent years, programmes have been organised for the board members of Pakistani Competition Authority, top managers of the National Agency of the Kyrgyz Republic for Anti-Monopoly Policy and Development of Competition, members of the Mongolian Agency for Fair Competition and Consumer Protection, and board members of the Turkish Republic of Northern Cyprus’s Competition Authority. Similar programmes have also been developed in cooperation with the Azerbaijan State Service for Antimonopoly Policy and Consumers’ Rights Protection, the State Committee of the Republic of Uzbekistan on De-monopolisation and Ukrainian Anti-Monopoly Committee. These programmes were held according to the bilateral cooperation agreements.
The AMC cooperates with antitrust authorities in other jurisdictions in general. The full list of the cooperation agreements is not publicly available. As a matter of practice, the AMC does not cooperate with antitrust authorities in other jurisdictions in respect of any specific transactions.
The agencies will cooperate with authorities in other jurisdictions in investigations of multi-national transactions. The FTC and DOJ have entered into numerous cooperation agreements with other jurisdictions, including Canada, Mexico, the EU, China, Japan, and others. However, the confidentiality protections of the HSR Act mean that the agencies may not share information with other authorities without a waiver of confidentiality protections by the parties to the transaction.
The FAS has entered into a number of bilateral agreements with antitrust authorities in different states (e.g., China, Bulgaria, Poland, Brazil, France, EEU countries). This means that, theoretically, the FAS may consult with and in certain cases request information from (e.g. from EEU countries) the authorities in other jurisdictions.
The CMA cooperates closely with the European Commission and national competition authorities of EEA Member States through the European Competition Authorities (ECA) network. In addition, an EU Merger Working Group comprising the European Commission and the competition authorities of EU member states has developed Best Practices on Cooperation between EU National Competition Authorities in Merger Review, which sets out non-binding principles of cooperation concerning mergers subject to review in more than one EU Member State. Parties that notify in these jurisdictions will generally be asked if they are notifying in any other ECA jurisdictions and, if so, officials from the relevant jurisdictions will liaise and coordinate their reviews (although confidential information will only be disclosed if permitted by national legislation or a waiver provided by the parties).
The CMA may also engage in similar cooperation with non-EU authorities, such as the US Department of Justice and Federal Trade Commission.
The Belgian Competition Authority cooperates with antitrust authorities in other jurisdictions as part of the European Competition Network, the European Competition Authorities Network, and the International Competition Network. The Authority may exchange confidential information regarding mergers with the European Commission and the competition authorities of other EU Member States, and use information received from them in its review of notified concentrations.
Austria is a Member State of the EU and the BWB cooperates closely with the European Commission and national competition authorities. A particularly close cooperation exists with the German competition authority (Bundeskartellamt).
The Commission will cooperate with antitrust authorities in other jurisdictions. Currently, the Commission has entered into memoranda of understanding with the following regulators:
- Federal Antimonopoly Service of the Russian Federation
- Competition Authority of Kenya
- Directorate-General Competition of the European Commission
- BRICS Competition Authorities (Brazil, Russia, India and China)
- Namibian Competition Commission
None of these MOUs expressly provide for the exchange of information and parties are not obliged to grant a waiver allowing its confidential information to be provided to another authority.
Within the European Competition Network, the FCA cooperates with other competition authorities in the EU. In particular, the FCA can communicate information to other national competition authorities within the EU and to the European Commission, and use information received from them.
The FCA is also part of the Network of European Competition Authorities, which is composed of the competition authorities in the European Economic Area, and the International Competition Network.
The FCA also cooperates on a bilateral basis with Algeria, Mauritius, Russia, Tunisia, Ukraine and the West African Economic and Monetary Union.
In principle, there is no legal consequence if a party refuses to grant a waiver allowing its confidential information to be provided to another competition authority.
The former and current competition authorities have executed cooperation agreements with authorities in other jurisdictions, including the US, Europe, South Korea, Canada and others. Yet, in order to discuss or exchange information, the authority must seek waiver from the parties to disclose confidential information to foreign authorities, although the exchange remains confidential. However, in complex multi-jurisdiction transaction, the competition authorities in Mexico have been in close contact with foreign authorities, especially with the European Commission, the Federal Trade Commission and the US Department of Justice, Antitrust Division.
The FCO regularly cooperates with other antitrust authorities within the context of the European Competition Network and beyond, in particular the US authorities. For the exchange of party-specific information, a waiver is required from (and typically granted by) the parties.
The ICA belongs to the European Competition Network (ECN), which includes the European Commission and the competition authorities of all the EU member states. The authorities cooperate with each other through the ECN by (i) informing each other of new cases and envisaged enforcement decisions; (ii) coordinating investigations; (iii) exchanging evidence and other information; and (iv) discussing issues of common interest.
The ICA is one of the co-founders of the International Competition Network (ICN), which groups 130 competition agencies in the world. The ICN's mission statement is to advocate the adoption of superior standards and procedures in competition policy around the world, formulate proposals for procedural and substantive convergence, and seek to facilitate effective international cooperation to the benefit of member agencies, consumers and economies worldwide. Currently, the ICA is one of the co-Chairs of the Advocacy Working Group.
The ACCC cooperates with relevant merger control authorities in other jurisdictions, including the European Union, the United States, Canada and New Zealand. Notification submitted in another jurisdiction will usually come to the attention of the ACCC if the merger is likely to affect an Australian market. International decisions do not confer statutory immunity in Australia.
Interagency cooperation is extremely common, especially between the Bureau and it US counterparts, and will continue to play an important role in the Bureau’s review of cross-border and international mergers.
The Bureau currently has formal cooperation instruments relating to Canada's competition and consumer protection laws with 14 foreign jurisdictions: Australia, Brazil, Chile, EU, Hong Kong, India, Japan, New Zealand, China, South Korea, Mexico, Taiwan, United Kingdom, and the United States.
As noted above, the Bureau takes the view that it does not require a waiver from the parties to share confidential information about their transaction with agencies in other jurisdictions.