Does the authority cooperate with antitrust authorities in other jurisdictions?
Merger Control (2nd Edition)
The PCA actively participates in international forums, such as the International Competition Network, the European Competition Authorities and the European Competition Network (‘the ECN’). In the framework of the ECN, the PCA is informed of mergers notified in other Member States with a potential impact in Portugal. Further, in the case of multijurisdictional notifications, the PCA is proactive in trying to coordinate its position and the procedural deadlines with others, in particular with the Spanish Competition Authority. Moreover, the PCA is a founding member of the Ibero-American Forum on the Protection of Competition (which includes Portugal, Spain and most Latin American countries) and of the network for competition authorities of Portuguese speaking countries. Finally, it is also worth mentioning the close relationship between the PCA and CADE, the Brazilian Competition Authority.
International cooperation lies within the statutory powers of the HCC. According to the Greek Competition Act, HCC must ensure its cooperation with the competition authorities of the EU Commission and the provision to any of its competent bodies of any assistance necessary for the realisation of investigations taking place in accordance with the EU legislation. HCC shall ensure such cooperation with the competition authorities of other countries as well. If any undertaking registered in Greece or exercising its business activities in Greece, refuses to accept the investigation or audit provided in the EU legislation, HCC and its duly authorised body, acting ipso jure or upon a request by an EU Commission body, ensures that such investigation or audit takes place smoothly, especially by providing the necessary assistance. In case of any refusal or delay on providing any requested information or the information provided is inaccurate or defective, with no prejudice to any criminal sanctions imposed according to the Greek Competition Act, the HCC a) may impose a fine amounting to €15,000 with upper limit the 1% of turnover for each person and for each infringement, when such infringement is committed by undertakings or associations of undertakings, managers and their employees, individuals or legal entities of private law or b) may file a disciplinary report in case such infringements are effected by public officers or employees of public legal entities.
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 Authority actively cooperates with competition authorities of other jurisdictions (including, in particular, the EU Commission) and is a member of both the European Competition Network (ECN) and the International Competition Network (ICN).
The US antitrust agencies may cooperate with authorities in other jurisdictions when investigating multi-jurisdictional transactions. In January 2017, the FTC and DOJ announced revised joint Antitrust Guidelines for International Enforcement and Cooperation (Guidelines) that discuss the agencies’ international enforcement policy and investigative tools. The Guidelines explain in detail that, where relevant and appropriate, cooperation can include: initiating informal discussions and informing cooperating authorities of respective investigations; engaging in detailed discussions of substantive issues; exchanging information; conducting joint interviews; and coordinating remedy design and implementation. However, the HSR Act prohibits the US antitrust agencies from disclosing information obtained pursuant to the HSR Act without a waiver of confidentiality from the parties. Merging parties will often provide a waiver of confidentiality to the relevant foreign authority. Waivers generally allow the cooperating authorities to share documents, statements, data, and other information.
The German FCO is a member of the European Competition Network (ECN) and regularly exchanges relevant information with authorities in other member states. The FCO may exchange any information relevant for the application of Art. 101, 102 TFEU with other members as well as with the European Commission. There is no limitation to the exchange of information within the ECN.
It is unknown whether there is a list or comparable collection of cooperation agreements of the FCO with competition authorities outside of the ECN. There are no known official agreements. The FCO does cooperate within the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD). Exchange of information may take place on a case-to-case basis.
However, the FCO may only exchange information originating from merger proceedings with competition authorities outside of the ECN with the prior consent of the undertaking that submitted the information. There is no legal consequence for refusing consent.
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.
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).
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 15 foreign jurisdictions: Australia, Brazil, Chile, Colombia, 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.
The FNE is increasingly active in international organizations such as the OECD, the ICN and the Red Interamericana de Competencia, and co-operates actively with its peers in others jurisdictions. As such, it has signed various co-operation agreements with other competition agencies (currently, it has co-operation agreements with authorities in Brazil, Canada, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Peru, Spain and the United States). These agreements provide for technical assistance, and most of them also have provisions regarding co-operation and information exchanges for enforcement.
The FNE has liaised with competition authorities in other jurisdictions, and as a result, the shared information has been placed under review. In order to share confidential information with authorities in other jurisdictions, the FNE will request the notifying parties for a waiver. The experience is that the parties generally provide a waiver, although there are no formal sanctions on a denial.
The CPC cooperates with other national competition authorities in the EU and the European Commission on the basis of the system of parallel competences and the exchange of views and information between them via the European Competition Network.
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 Commission cooperates both with the national competition authorities in the EU and other non-EU jurisdictions.
To this effect, the Commission has entered into a number of cooperation agreements with other jurisdictions, such as the US, Brazil, Canada, China, India, Japan, South Korea and Switzerland. This cooperation with other competition authorities on specific transactions typically consists of information exchange.
In addition, the Commission actively participates in the International Competition Network’s working group on multi-jurisdictional merger control, which was established in 2001 with the aim of promoting best practices and international cooperation.
The FCA is part of the European Competition Network and therefore tightly cooperates with other competition authorities. It also cooperates with international competition authorities based on bilateral agreements.
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.
Yes. In multijurisdictional merger filing processes, the NCA will usually get in touch with other national authorities involved, in particular the other Nordic competition authorities. The NCA will also cooperate with the European Commission in mergers that affect competition in Norway but where the European Commission has jurisdiction. The NCA also participates in the ECN network and cooperates with other European competition authorities in this way.
The Competition Council cooperates with the national competition authorities of other Member States of the European Union and with the European Commission through the European Competition Network. The Competition Council also has relations with competition authorities of states outside the European Union, as well as with the Organisation for Economic Co-operation and Development.
In case of an economic concentration which is notifiable both in Romania and in another Member State(s) of the European Union (a “multijurisdictional” concentration), the Competition Council may request the permission of the concerned parties in order to provide confidential information relating to the concentration to the competition authorities of the Member State(s) involved in the assessment of the same concentration.
KN: Yes, the Competition Commission is active in building good relations with other antitrust authorities. Such relationships are especially pronounced with the authorities in the neighbouring countries (such as Montenegro, Macedonia etc.). International relationships take various forms that range from less formal communications, through formal meetings to entering into bilateral protocols on cooperation. The Competition Commission has entered into several agreements on bilateral cooperation with several competition authorities such as Macedonian Competition Commission, Slovenian Agency for Protection of Competition, Romanian Competition Commission etc.
Although there is no obligation on the Commission to cooperate in relation to foreign investigations or to recognise any determinations made by other antitrust authorities, the Commission does, where it considers appropriate, consider the analysis by other antitrust authorities and regard the analysis as persuasive in its own deliberations
The authorities are specifically empowered to rely on foreign law in interpreting and applying the Act.
The Commission has concluded Memoranda of Understanding with a number of competition authorities including the Kenya Competition Authority, Mauritius Competition Commission, SADC countries as well as the European Commission. There has also been cooperation between the Commission and regulators such as the US Department of Justice, the Federal Trade Commission. Personnel from the Department of Justice and the Federal Trade Commission have previously been seconded to the Commission in advisory capacities.
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 Competition Authority has international cooperation with several antitrust authorities in other jurisdictions. Additionally, the 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.
Yes, the internal regulations of CADE stipulate, on article 60, XXIII, that the president of CADE’s Court shall execute and obtain mutual cooperation and the exchange of information with antitrust authorities in other jurisdictions and international authorities on the matter, based on reciprocity. Furthermore, paragraph 1st of the mentioned article determines that the information obtained through such method can be classified as confidential. CADE may refuse to cooperate with other jurisdictions if there is a matter of public interest of Brazil involved.
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.
There is nothing in the local applicable law impeding the authority to cooperate with antitrust authorities in other jurisdictions. There are no precedents, however, showing that this has been the case yet.