Does the authority cooperate with antitrust authorities in other jurisdictions?
Merger Control (3rd edition)
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 Bundeskartellamt.
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 other jurisdictions. As such, it has signed various co-operation agreements with other competition agencies (it currently 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 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.
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 and the other agency 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 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.
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 NCA does not directly participate in the European Competition Network ("ECN"), as Norway is not a member of the EU. However, the EFTA Surveillance Authority ("ESA") and the national competition authorities of the EFTA States can participate in ECN meetings, although only for the purpose of discussing general policy issues (Protocol 23, EEA Agreement). ESA and the EEA/EFTA countries have established their own network for cooperating on the enforcement of cases that fall under the EFTA’s scope.
In addition, the NCA has entered into several inter-agency agreements with other national competition authorities, such as the Nordic countries’ competition authorities. The NCA may exchange information with the competition authorities in other countries in order to fulfil national obligations set out in international agreements. However, any further disclosure of the information by the recipient authority must be authorized by the NCA, and the information must only be used for the specific purpose defined.
Considering that the PCC is a young competition authority, there is no official policy yet on this matter. However, future cooperation by the PCC with foreign antitrust authorities is highly likely.
FAS cooperates with antitrust authorities in other jurisdictions, but this cooperation is usually limited to investigations of antitrust violations. Until recently, FAS did not cooperate with the other antitrust authorities by way of exchange of information regarding an envisaged transaction. However, such cooperation has recently become possible within the framework of the Eurasian Economic Union (EEU).
The FCA is a member of the International Competition Network (ICN), the European Competition Network (ECN) and the European Competition Authorities Association (ECA).
Within this framework, there is a regular flow of information between competition authorities concerning pending merger cases.
The Commission typically contacts antitrust authorities in other jurisdictions in large, global transactions. In circumstances where the authorities seek to exchange information, the parties are requested to provide appropriate waivers to allow for the flow of information, notwithstanding the confidentiality that attaches to the information. The Commission has, in the past, cooperated with the antitrust authorities in the EU, US, Brazil and China (amongst others).
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. Parties contemplating complex, cross-border transactions should anticipate and plan to navigate merger control authorities who are cooperating across the globe.
The ComCo participates actively in various networks of competition authorities and is a member of the Competition Committee of the Organisation for Economic Cooperation and Development (OECD) and the International Competition Network (ICN). These networks primarily serve the exchange of knowledge and experience.
The agreement between the Swiss Confederation and the European Union (EU) on cooperation in the application of its competition law should also be mentioned. The agreement offers the possibility of informing each other about enforcement measures, coordinating them and exchanging information. At the same time, it contains clear rules on compliance with the existing procedural guarantees for the companies concerned.
Yes, the FCO cooperates with antitrust authorities in other jurisdictions. 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.
It is unknown whether there is a list or comparable collection of cooperation agreements of the FCO with competition authorities outside of the ECN. 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.
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 PCA actively participates in international forums, such as the International Competition Network, 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, and is code-sharing meetings until 2020. Further, in the event of multijurisdictional notifications, it is possible that 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).
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.
Yes, the CCI has entered into Memorandums of Understanding with various antitrust regulators across the globe, including, Australia, Canada, European Union, United States of America, the Federative Republic of Brazil, the Russian Federation, the People’s Republic of China and the Republic of South Africa.
The CCI has cooperated with a few counterparts in other jurisdictions on recent global mergers in Dow/DuPont, Bayer/Monsanto, Linde/Praxair, etc.
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). It remains to be seen whether these information sharing and cooperation arrangements will be replicated after the UK ceases to be a member of the European Union.
The CMA may also engage in similar cooperation with non-EU authorities, such as the US Department of Justice and Federal Trade Commission.
The Commission works closely with European NCAs through the ECN (European Competition Network), which aims to ensure the effective and consistent application of European competition rules. The Commission also works with the ICN (International Competition Network) to address practical antitrust/merger enforcement and policy issues globally.
The Commission has also entered into collaboration agreements with non-EU authorities, such as Brazil, Canada, China, Switzerland or Japan. The purpose of these agreements is to facilitate cooperation between the authorities on general issues, but also to exchange information on specific transactions, though the Commission can only share information with non-EU authorities if the parties give the Commission a special waiver to do so.