What is the nature and extent of any cooperation with other investigating authorities, including from other jurisdictions?
Article 43 of Decision No. 1/95 of the EC-Turkey Association Council authorises the Authority to notify and request the European Commission (DG Competition) to apply relevant measures if the Board believes that cartels organised in the territory of the European Union adversely affect competition in Turkey. The provision grants reciprocal rights and obligations to the EU and Turkey, and thus the European Commission has the authority to request the Board to apply relevant measures to restore competition in relevant markets.
There are also a number of bilateral cooperation agreements between the Authority and the competition agencies in other jurisdictions (e.g. Romania, Korea, Bulgaria, Portugal, Bosnia-Herzegovina, Russia, Croatia and Mongolia) on cartel enforcement matters. The Authority has close ties with the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, the World Trade Organization, the International Competition Network and the World Bank.
The research department of the Authority makes periodic consultations with relevant domestic and foreign institutions/organisations about the protection of competition, and submits its recommendations to the Board. For example, a cooperation protocol was signed on 14.10.2009 between the Authority and the Turkish Public Procurement Authority about ensuring healthy competition environment for public tenders by cooperating and sharing information. Informal contacts do not constitute a legal basis for the Authority’s actions.
Nevertheless, the interplay between jurisdictions does not materially affect the Board’s handling of cartel investigations. The principle of comity is not included as an explicit provision in the Competition Law.
The ACCC is authorised to provide information obtained under a s155 notice to an Australian and/or foreign government body (the latter includes an agency of a foreign government) if the Chairperson is satisfied the information will assist that body to perform or exercise any of its functions or powers.
The ACCC has also a number of arrangements with overseas competition agencies in relation to competition law enforcement activities. In addition, the Governments of Australia and the United States have an agreement under which the parties assist one another and cooperate on a reciprocal basis in providing or obtaining antitrust evidence.
In the context of an immunity application, unless required by law, the ACCC will not share confidential information provided by an immunity applicant with other regulators without consent, but will as a matter of course request confidentiality waivers for each jurisdiction in which the applicant has or intends to seek immunity or leniency. The ACCC typically adopts the same approach for cooperating parties. The ACCC may regard a failure to provide waivers as a failure to provide full cooperation.
There are also limited circumstances in which information (even protected information) can be disclosed, including, for example, where the Chairperson is satisfied that the disclosure can assist other government agencies/bodies.
The agencies, and especially COFECE, do cooperate with international agencies in cartel investigations, as Mexico is party to different agreements that enable international cooperation in the enforcement of competition laws.
From a practical perspective, COFECE does weigh leniency applications or settlements reached abroad, especially if the relevant cartels are truly global in nature and the effects in Mexico are incidental or secondary to those taking place elsewhere.
Cartel is both an administrative infringement and a crime in Brazil. Therefore, and locally, a number of cooperation agreements has been executed between CADE and the Public Prosecutor's Office to improve the level of information exchange and cooperation on investigations. Between 2017 and 2018, around 21 cooperation agreements were signed with different Public Prosecutors' Offices across Brazil.
CADE has also signed cooperation agreements with different international authorities, regarding both mergers and cartel investigations. From 2013 to 2016, CADE engaged in international cooperation for the assessment of 21 anticompetitive conducts. In 2017, there were 11 cooperation activities regarding 7 different conducts. During the investigation phase, the authority relies on ‘pick-up the phone’ cooperation, i.e., informal discussions about practical aspects of the investigation such as difficulties with locating and notifying foreign individuals or companies and overcoming bureaucratic hurdles. Other challenges tackled through international cooperation are the coordination of dawn raids, access to evidence and enforcement of decisions. Most of the international cartel cases are also being investigated in Brazil, when there are local effects, as part of leniency and settlements agreements signed with CADE (and usually involving several jurisdictions).
The collaboration between the FCCA and the other European com¬petition authorities has significantly increased following the entry into force of Regulation 1/2003 and the creation of the ECN. This cooperation relates, inter alia, to the investigation and prosecution of cartels. In practice, the FCCA has taken advantage of the ECN network either by requesting a competition authority from another member state to assist in the acquisition of information or by refer¬ring a case to the competition authority of another member state. The ECN also has different subgroups for certain industries (e.g. transport, telecoms, food) and competition restraints types (e.g. cartels, vertical restraints) where the NCA's regularly meet and discuss ongoing cases.
In addition, the FCCA takes part in Nordic cooperation between authorities from Sweden, Norway, Denmark, Iceland, the Faroe Islands and Greenland. The Nordic authorities signed an Agreement on Cooperation in Competition Cases in 2017.
The Bureau cooperates with other authorities in many ways. The International Affairs Directorate is the department in charge of the negotiation of co-operation agreements with other countries, which facilitate co-operation and collaboration in cases of cross-border enforcement matters. The Bureau currently has co-operation instruments with 14 foreign jurisdictions (Australia, Brazil, Chile, the European Union, India, Japan, New Zealand, Hong Kong, the People’s Republic of China, Republic of Korea, Mexico, Taiwan, the United Kingdom, and the United States).
In addition to these agreements, the Bureau also benefits from Mutual Legal Assistance Treaties and can seek help from and provide assistance to over 30 countries in accordance with Part III of the Act.
In the context of a cartel being investigated internationally, the Bureau will generally seek to coordinate steps, such as the timing of searches, with the other agencies. The Bureau will not afford any special consideration to an immunity or leniency applicant solely because it has been granted immunity or another form of favourable treatment in another jurisdiction. On the other hand, as part of the applicant’s ongoing co-operation, the Bureau will generally expect the applicant to consent to the communication of information, both procedural and substantial, with jurisdictions to which the applicant has made similar applications for immunity or leniency.
In addition, as the timing of an approach to the Bureau can be critical to the options available to a potential immunity applicant, a party considering an application for immunity should consider the fact that, when the matter involves other countries, the Bureau may be aware of the matter as a result of a foreign investigation, before being approached for immunity. The Bureau indicates that in matters involving multiple jurisdictions, where the applicant has business activities with a substantial connection to Canada, it should contact the Bureau before, or immediately after, approaching foreign competition law authorities.
- Inter-agency cooperation
The AMEA may cooperate with other government agencies. In general, other government agencies which find clues or receive materials about suspected monopoly conducts should transfer the clues or materials to the AMEA, and evidence and materials collected by the other government agencies can be used by the AMEA as evidence. For example, in 2012 the Public Security Bureau of Wuxi County transferred clues of a suspected monopoly conduct to the AIC of Wuxi County. The latter then reported to the AIC of the Chongqing Municipality, which, after having been authorized by the SAIC, conducted the investigation and finally made an administrative punishment decision.
During the process of investigations, the AMEA may seek opinions from relevant authorities in charge of the industry concerned, such as the Ministry of Industry and Information Technology, Ministry of Transportation, People's Bank of China, Sino Intellectual Property Office, China Banking Regulatory Commission and China Insurance Regulatory Commission.
- Cooperation with other investigating authorities from other jurisdictions
Since the entry into force of the AML in 2008, China has entered into more than 50 cooperation agreements or memorandums of understanding (‘MOUs’) with competition authorities of about 30 countries and regions, including the US, the EU, the UK, Korea and Australia. For example, NDRC, SAIC and MOFCOM signed MOUs with U.S. Federal Trade Commission and the U.S. Department of Justice in July 27, 2011.
Article 2 of the AML stipulates that ‘this Law shall apply to monopolistic acts outside the People's Republic of China that have the effect of eliminating or restricting competition in the domestic market.’ The AMEA investigates and punishes monopoly conducts independently from foreign authorities. An undertaking who has submitted leniency applications or reached settlement agreements outside China would not automatically be exempted from investigations or punishment in China. It should submit leniency applications or propose to make commitments to the AMEA separately.
The US authorities cooperate extensively with non-US authorities. It is common for authorities around the world to coordinate on the timing of dawn raids and other such enforcement actions and cooperation may be specified in the various mutual legal assistance treaties [MLATs] that the US has in place with other governments. The US government may not share information gathered through a grand jury process or search warrant without the consent of the subject of the investigation.
In 2012, the DOJ articulated a four-part analysis regarding whether to exercise discretion in response to a parallel foreign enforcement action. The DOJ considers (1) Is there a single, overarching international conspiracy?, (2) Is the harm to US business and consumers similar to the harm caused abroad?, (3) Does the sanction imposed abroad take into account the harm caused to US businesses and consumers?, and (4) Will the sentence imposed abroad satisfy the deterrent interests of the United States. Depending on these factors, the DOJ may reduce the scope or penalties of an investigation or may waive prosecution.
The Japanese government has entered into bilateral agreements concerning cooperation in competition issues with other competition authorities such as those in the US, the EU, Canada and Australia. The JFTC also cooperates with authorities in other jurisdictions through economic cooperation agreements.
In practice, the JFTC requests an undertaking for a waiver prior to sharing information with other authorities, however, even where these are obtained, in practice, the JFTC only provides information to other authorities and not actual evidence.
Under the Competition Commission Act 2010, the Minister of Domestic Trade, Co-operatives and Consumerism may direct the MyCC regarding interworking arrangements between the MyCC and any other authority in Malaysia or in a foreign jurisdiction or any international organisation and determine the arrangements for such interworking or membership of international organisations. As an example, the Central Bank of Malaysia and the MyCC has signed a memorandum of understanding on 5th June 2014 to formalise the intent of the Central Bank and the MyCC to collaborate and cooperate in areas of common regulatory objectives in order to facilitate the efficient implementation of the CA and its intended objectives to promote and protect the process of competition, while ensuring that the overall stability of the financial sector is preserved.
Insofar as the cooperation with other investigating authorities from other jurisdictions in the investigation of cartel activities is concerned, we are thus far unaware of any such cooperation having been used for any particular case, although there would be no legal impediment to MyCC entering into any such cooperation arrangements if they deem fit. However, decisions from other investigating authorities (especially the European Competition Commission) may be used as a reference in any investigation by the MyCC.
The competition authorities are bound by the rules on official secrecy and may use information obtained in the performance of their duties only for the purpose for which it was obtained or for the purpose of the investigation. Any information exchange needs a legal basis and must be assessed in the individual case. The Cartel Act contains a provision only with regard to the Price Supervisor, who can be provided with any information required for the accomplishment if its duties by the competition authorities.
With regard to foreign competition authorities the Cartel Act states that data may only be disclosed to a foreign competition authority based on an act, an international agreement or with the consent of the undertaking concerned. The competition authorities shall notify the undertaking concerned and invite it to state its views before transmitting the data to the foreign competition authority.
Switzerland has entered into an agreement with the European Union concerning cooperation on the application of their competition laws (the EU Cooperation Agreement), which contains further details. Special rules regarding the delivery of sovereign acts such as sanction decisions or the prohibition of a certain behaviour are regulated in a separate exchange of notes between Switzerland and the EU.
In addition, the Cartel Act contains a specific provision with regard to investigations in proceedings under the Swiss/EC Air Transport Agreement. The EU and the Commission provide each other with all necessary information and assistance in the case of investigations, which the other authority carries out under its respective competences as provided in the Air Transport Agreement.
The Agreement on Free Trade and Economic Partnership between the Swiss Confederation and Japan provides for full cooperation with regard to competition issues. Upon request, the national authorities may transmit information which is in their possession and which is relevant for the execution measures of the competition authority of the other state. However, the passing on of confidential is excluded from the cooperation.
Settlements or leniency applications in other jurisdictions have no legal influence in Switzerland since the Secretariat conducts an independent investigation and legal assessment. The EU Cooperation Agreement excludes any exchange of information under the leniency or settlement procedures, unless the undertaking, which provided the information, has given its express consent in writing.
The Competition Authority usually cooperates with other authorities when conducting criminal investigations. For example, when the Competition Authority wishes to carry out wiretapping, it actually carried out by the General Security Services. In addition, when cartels investigated by the Competition Authority constitute offences under the Israeli Penal Code, which the Israeli police is authorized to investigate (such as money laundering or offenses under the Securities Law, 5728-1968), the Competition Authority cooperates with the relevant authorities, and these authorities accompany the investigation from the stage of the raid and the arrests to the stage of filing the indictment.
To this day, there has been no situation in Israel where a person who committed various offenses, including offenses under the Competition Law, signed an immunity agreement with another authority. We believe that in such situation, the investigating authority will involve the Competition Authority prior to reaching an immunity agreement and will allow it to examine the fulfilment of the conditions for granting immunity under the Competition Authority's Program. Apparently, a different investigation authority (such as the Israel Police, the Israel Securities Authority, etc.) cannot, on its own, grant immunity from prosecution under the Competition Law, but in light of the fact that all of these authorities actually operate under the authority of the State Attorney, the immunity granted by the State Attorney will cover all of the relevant laws.
The CNMC liaises with the European Commission and the other EU national competition authorities in the context of the European Competition Network (ECN). The ECN is a forum for discussion and cooperation among national competition authorities of Member States of the EU in cases involving the application of Articles 101 and 102 TFEU, which aims to ensure the efficient allocation of tasks and the effective and consistent enforcement of EU competition rules. In particular, the ECN competition authorities cooperate by means of: (i) mutual communication exchanges in relation to new cases and upcoming decisions; (ii) coordination of investigations where necessary; (iii) mutual assistance in investigations; (iv) exchanges of evidence and information; and (v) discussions of issues of common interest.
As for the weight attached to leniency applications filed in other jurisdictions, the ECN Model Leniency Programme 2012 sets out the treatment that national competition authorities should apply to leniency submissions in all Member States of the EU, including Spain. It also provides for a uniform template of short-form application that can be used by leniency applicants in cases of multiple leniency submissions in different Member States to ensure the marker if a leniency application is filed with the European Commission. Furthermore, as there is no settlement regime in Spain, there is no recognition of foreign settlement submissions, apart from the confidential treatment in actions for damages.
International cooperation with authorities in third-country jurisdictions is usually carried out on the EU level by means of agreements entered into by the European Commission. Nonetheless, the CNMC has recently entered into memoranda of understanding with the Ministry of Commerce of the People’s Republic of China on 6 November 2017, the Commission for the Defence and Promotion of Competition of Honduras on 3 May 2016 and the Competition Board of Morocco on 29 January 2019. Additionally, given that Spanish competition rules only provide for criminal sanctions in certain particular cases (see below) extradition requests from foreign jurisdictions are unlikely to be accepted by Spanish courts. Finally, no inter-jurisdictional discovery mechanisms are in place to the extent that such a system is not provided for under the new rules on claims for damages for competition infringements (see below).
The legislative framework for the exercise of powers of national and regional governments in relation to competition infringements is contained in an Act of 2002 on the Coordination between the State and the Regions in Competition Matters (see above). On this basis, cooperation between the CNMC and the various regional competition authorities is ensured with the purpose of guaranteeing effective enforcement through the ability to better focus of their actions, as well as avoidance of duplicity and divergent positions. National and regional powers to conduct enforcement proceedings are exclusive and determined on the basis of the scope and nature of the conduct (see above). Therefore, in the event of a discrepancy on the competence in relation to a particular case, any of the authorities involved in the conflict may request that an advisory committee be convened to issue a non-binding report within 15 days. A preliminary ruling on competence may also be requested from the Constitutional Court.
The CC cooperates fully with the European Commission in terms of the support it must afford it for enforcement of EU competition rules. It also cooperates with other national competition authorities within the European Competition Network, based on the rules laid down in the 2004 Commission Notice on cooperation within the Network of Competition Authorities. To the best of our knowledge, there is no publicly available information in respect of settlement or leniency applications made via such inter-agency cooperation.
The CMA cooperates with the European Commission and National Competition Authorities in other EU member states through the European Competition Network (ECN). The CMA also has a memorandum of understanding with Scottish authorities for cooperation in criminal cartel cases over which Scottish courts may have jurisdiction.
The CMA is also permitted to disclose confidential information to agencies in other jurisdictions in certain circumstances. The UK has mutual assistance arrangements relating to competition law with the United States, Canada, Australia and New Zealand.
Information supplied as part of an application for leniency will not be passed to an overseas agency without the consent of the provider, except that information may be disclosed within the ECN in accordance with the provisions of the ECN’s Notice.
The Commission cooperates with other NCAs through the European Competition Network (the ECN). The extent of cooperation extends to the sharing and collection of relevant information for the purposes of applying Article 101 or for parallel proceedings under national competition law.
The Commission often also cooperates with non-EU competition authorities and has dedicated cooperation agreements with several countries, notably Australia, Brazil, Canada, China, India, South Africa, South Korea, Switzerland and the US.
The Antitrust Commission has a close relationship in terms of cooperation with the authorities in other jurisdictions. In fact, it has recently signed with Brazil, Chile, Mexico and Peru a joint statement regarding the advantages of the leniency programme, which follows the good practices submitted by the United Nations Conference on Trade and Development and the Organization for the Cooperation and Economic Development.
Both the Competition Act and the Public Administration Act limits the exchange of information in cooperation with other investigating authorities. Inter-agency cooperation is however not unusual due to the widely formulated exemptions in the acts. Consequently, there exist few limitation on the ability to exchange information between public enforcement bodies. This is especially true when it comes to potential infringements of the law.
The NCA takes part in various cooperations under EEA. Inter alia, the NCA is the representative of Norway in the European Competition Network and the International Competition Network. Also, the NCA has an extensive cooperation with the other Nordic Competition Authorities. A renewed agreement between the Authorities of Denmark, Sweden, Iceland, Finland and Norway, and also including the territories of Greenland and the Faroe Islands, was signed in 2017, and is expected to enter into force in Norway early fall 2019. The agreement inter alia allows the Nordic competition authorities to collect information and carry out unannounced inspections on their own territory on behalf of the other authorities party to the agreement.
The BCA is part of the European Competition Network (ECN) and therefore the rules laid down in Regulation 1/2003 apply. The BCA also participates in the European Competition Authorities which consists of the head of the competition authorities of the EEA. Lastly, the BCA is a member of the International Competition Network.
Furthermore, the CEL states that the BCA is responsible to conduct assistance, verification and other tasks for competition authorities of other Member States. In addition, the BCA is allowed to share confidential information with the Commission and authorities from other Member States, and to use such information received from the Commission or authorities.
Leniency declarations are only shared with the Commission and the competition authorities of other Member-States. The Leniency Guidelines also provide for a short form application to the BCA when the applicant has already submitted a leniency application to the Commission.
The HCC, as the NCA, is responsible for cooperation:
- with the competition authorities of the European Commission and for providing its designated bodies with the necessary assistance to undertake the controls provided for under EU law; and
- with the competition authorities of other countries.
If an undertaking that has its seat or exercises its activity in Greece refuses to allow the inspection provided for under EU law, the Competition Commission and its empowered body, acting ex officio or following a relevant request from the bodies designated by the European Commission, shall ensure overall proper conduct of the investigation, in particular by providing necessary assistance, implementing in this instance the provisions of article 38 of Law 3959/2011.
Therefore, the HCC, according to national legislation, cooperates closely with the European Commission and the national competition authorities in all EU member states in order to enforce the EU competition rules, primarily in the context of Regulation (EC) 1/2003. Furthermore, it cooperates closely with other competition authorities (ie, mutual legal assistance treaties, MOUs, cooperation agreements, etc), in its capacity as a member of the OECD and the ICN. [To cover: (i) nature and extent of inter-agency cooperation; and (ii) based on previous practice, the weight attached to leniency applications or settlement agreements made in other jurisdictions.]
The CCI has entered into Memoranda of Understanding (MoUs) with anti-trust agencies of Australia, Brazil, Canada, China, the European Union, Russia, South Africa, and the United States. It is unclear whether these MoUs are in practice used by the CCI in its cartel enforcement activities.
The Competition Act provides for the CCI to make references to other statutory authorities when it takes or proposes to take a decision which may be contrary to any other legislation whose implementation is entrusted to such a statutory authority. Likewise, the Competition Act also provides for the statutory authorities to make references to the CCI when they take or propose to take a decision which may be contrary to the Competition Act.
The Government e-marketplace, an agency of the Government and CCI entered into a Memorandum of Understanding on 6 February 2019 to enable a fair and competitive environment in the e-Marketplace.
The SCA cooperates closely with the European Commission and the national competition authorities (NCA) of other EU Member States within the European Competition Network (the ECN).
In addition, the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) have entered into a separate cooperation agreement, which enables them to assist each other with cases and exchange information.
There is no previous practice on the weight attached by the SCA to settlement agreements in other jurisdictions.
Moreover, immunity or leniency applications submitted to another NCA within the EU are not considered as an application for leniency to the SCA. An immunity or leniency applicant would therefore have to apply for immunity or leniency in all relevant Member States. However, the ECN has established a Model Leniency Programme to ensure that potential applicants are not discouraged from applying as a result of discrepancies between existing leniency programmes within the EU. Furthermore, companies having applied for immunity or leniency before the European Commission may make a summary application to the SCA instead of a full immunity or leniency application. Information may be disclosed within the ECN in accordance with the provisions of the ECN’s Notice.
According to section 23(B) of the Competition Act the CPC may cooperate with regulatory or other authorities that exercise control in specific sectors of the economy of the Republic and offers its assistance, upon their request and may request the assistance of the above regulatory or other authorities, when exercising its powers. The CPC may enter into Cooperation Protocols with other EU national competition authorities. The investigative powers vested in the CPC based on section 30 of the Competition Act may be exercised by the CPC either under its own name or on behalf of and for other EU national competition authorities which so requested.
The level of the cooperation between CPC and other investigative authorities outside Cyprus has increased after the establishment of European Competition Network (ECN) by Regulation (EC) No. 1/2003. The EU Commission and competition authorities from EU member states cooperate with each other through the ECN by informing each other of new cases and envisaged enforcement decisions, coordinating investigations, where necessary, helping each other with investigations, exchanging evidence and other information and discussing various issues of common interest.
In addition, the CPC is member of the International Competition Network (ICN), an informal network aiming at the application of competition policy worldwide. In particular, through dialogue and common approach by the national competition authorities, ICN encourages the dissemination of experiences and practices followed by either competition authority.
The CPC is also a member of the European Competition Authorities Network (ECA), an informal network of cooperation among the National Competition Authorities of the European Economic Area aiming to the exchange of views and the constructive discussion on competition issues.
The UAE Competition Law stated in Article 14 that the Ministry of Economy shall implement the competition policy in cooperation with the official authorities in the UAE as well as coordinating with the official authorities in the UAE to address any form of activities or practices that violates the provisions of the UAE Competition Law in addition to run investigations in relation to competition practices in cooperation with the official authorities.
Further, the Ministry of Economy shall coordinate the implementation of the provisions of the Law with the Competent Local Authorities and Sectoral Organizational Bodies (Federal or Local Bodies empowered by virtue of their respective regulations to regulate, control or supervise a certain economic sector in the UAE). Accordingly, the Ministry of the Economy has wide powers to request the cooperation of any official authorities in the UAE in relation to running the investigations or any procedures related to activities or practices that violate the provisions of the Competition Law in the UAE. This can include customs authorities, ministries, local economic departments, tax authority…..etc.
Moreover, the UAE Competition Regulation stated in Article 12 that the Competent Authority at the Ministry of Economy may take any action it deems necessary to investigate the competition complaints. The wording of Article 12 could be interpreted to include cooperation with official authorities in the UAE or in other jurisdictions.
It is worth mentioning that during the year 2018 the Competition Committee organized its first meeting at the Ministry of Economy's Headquarters in Dubai. The meeting was led by His Excellency (H.E.) Eng. Mohammed bin Abdul Aziz Al Shehhi, Undersecretary of Economic Affairs, Ministry of Economy and Chairman of the Committee, in the presence of other committee members. During the meeting, H.E. Al Shehhi mentioned that the Ministry of Economy is working in close cooperation with various economic entities, including the different chambers of commerce, to ensure compliance with the laws and legislation governing competition.
The above implies that the Competition Committee at the Ministry of Economy coordinate with various agencies in other jurisdictions and takes into consideration the information and documents related to competitions practices and actions in other jurisdictions. However, the settlements or decisions issued in other jurisdictions would not be binding on the Ministry of Economy in the UAE.