Which authorities can investigate cartels?
The national competition authority for enforcing the cartel prohibition and other provisions of the Competition Law in Turkey is the Turkish Competition Authority (the ‘Authority’). As the competent body, a cartel matter is primarily adjudicated by the Board that is responsible for, inter alia, investigating and condemning cartel activity.
Administrative enforcement is also supplemented with private lawsuits. In private suits, cartel members are adjudicated before regular courts. If a cartel activity amounts to a criminally prosecutable act such as bid rigging in public tenders, it may separately be adjudicated and prosecuted by Turkish penal courts and public prosecutors.
The ACCC is responsible for investigating cartel conduct managing the immunity/leniency processes and instituting civil cartel proceedings. The Commonwealth Director of Public Prosecutions (CDPP) prosecutes criminal cartels.
The ACCC refers serious cartel conduct to the CDPP for consideration for criminal prosecution in accordance with an Memorandum of Understanding (MOU) between the two agencies.
The Australian Federal Police (AFP) may also execute search warrants to obtain evidence in criminal cartel investigations.
The general antitrust enforcer is the Federal Competition Commission (Comisión Federal de Competencia Económica, or “COFECE”), which is empowered to enforce the FCA and bring criminal complaints for cartel behaviour before federal prosecutors across all industries except broadcasting and telecommunications. Conversely, the Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones or “IFT”) is a regulator that also acts as antitrust enforcer in the broadcasting and telecommunications industries.
Both agencies are organised internally so that each has an Investigative Authority (an “IA”), which is an independent body within each of COFECE and IFT, vested with powers to launch and conduct investigations and issue letters of objections to agents presumptively involved in cartel activity.
At the administrative sphere, anticompetitive conducts (including cartels) are investigated and judged by two different bodies of the Administrative Council for Economic Defense (CADE), which is an agency within the structure of the Ministry of Justice and has jurisdiction throughout the national territory. CADE is formed by the General Superintendence and the Tribunal (and the Department of Economic Studies which provides economic support for both).
In cartel matters, the General Superintendence is the investigative body entitled to prepare an opinion recommending to the Tribunal the conviction of the defendants or the dismissal of the case. The Tribunal is the decision-making body, which receives the opinion and provides definitive rulings at the administrative level.
At the criminal sphere, crimes (including cartels) are, as a rule, investigated by the judicial police (civil police or federal police) and/or the Public Prosecution Office (at the state or federal level).
As both spheres are independent, investigations may or may not be coordinated and the authorities involved can be more or less cooperative with one another.
The principal authorities involved in the enforcement and supervision of the Competition Act are the FCCA and the Market Court. The FCCA is an independent body, subordinate to the Ministry of Economic Affairs and Employment of Finland. The Market Court is a special jurisdiction court vested with judicial powers in competition matters, amongst others. The Market Court has retained the exclusive competence to impose fines and conditional fines following violations of the Competition Act. When imposing fines and conditional fines, the Market Court must always act upon a proposal from the FCCA. Furthermore, the Market Court reviews, as first appellate instance, the decisions adopted by the FCCA under the Competition Act.
The Supreme Administrative Court is the ultimate court of appeal in competition matters hearing appeals against judgments rendered by the Market Court. In addition, the general courts of law hear cases concerning the enforceability and validity of contractual arrangements containing competition restrictions and claims for damages suffered by business undertakings as a result of conduct prohibited by the Competition Act.
In Canada, the Competition Bureau (the “Bureau”), led by the Commissioner of Competition (the “Commissioner”), is the enforcer of the Act and the authority that investigates cartels. Following its investigation, the Bureau may refer the matter to the Public Prosecution Service of Canada (the “PPSC”), which reports to the Director of Public Prosecutions (the “DPP”). The DPP has the jurisdiction to prosecute cartel offences under the Act and can institute criminal proceedings in any superior court of a province or territory, as well as in the Federal Court.
Before 2018, NDRC and SAIC took charge of price-related cartels and non-price-related cartels respectively. After the implementation the Chinese government's institutional reform in 2018, SAMR is responsible for AML enforcement, which is specifically assumed by its anti-monopoly bureau.
At the local level, according to the Notice on Anti-Monopoly Enforcement Authorization issued by SAMR on January 3, 2019, provincial Administrations for Market Regulation (AMRs) are authorized to take charge of the AML enforcement work within their administrative regions and deal with it in the name of their own authority. The Notice also requires that the provincial AMRs to report to SAMR within 10 working days after a case is filed. Before the decisions made in regard of case cancellation, prior notice of administrative penalty (Statement of Objection), final decision, suspension of an investigation (Commitment decision), resumption of an investigation, termination of an investigation, and proposed administrative advice on a treatment of an abuse of administrative power to eliminate or restrict competitions, provincial AMRs shall accept the guidance and supervision of SAMR. They shall submit the relevant documents to SAMR within 5 working days after making the final decision, suspending and terminating the investigation decision, and proposal on a treatment of an abuse of administrative power. SAMR and provincial AMRs shall simultaneously announce law enforcement information to the public.
SAMR may entrust provincial AMRs to conduct case investigations. Similarly, provincial AMRs may also commission other provincial or subordinate AMRs to conduct case investigations. The commissioned authorities can only conduct investigations in the name of the commissioning authority, and cannot investigate and handle the case in its own name.
Criminal cartel cases in the US are investigated by the DOJ. State attorneys general also have authority under their state laws to investigate and prosecute cartel cases.
There are two types of cartel investigations conducted by the authorities, which are administrative procedures and criminal procedures. The administrative procedures are typically conducted by the Japan Fair Trade Commission (the “JFTC”). As for criminal procedures, the JFTC often cooperates with the Public Prosecutors Office to investigate cartel activities.
The regulator of competition law in Malaysia is the MyCC. The MyCC is an independent body corporate established under the Competition Commission Act 2010 with the main role to protect the competitive process for the benefit of consumers and businesses by enforcing the Act.
Competition law in the communications sector is enforced by the Malaysian Communications and Multimedia Commission (‘MCMC’), while the Energy Commission oversees competition in the energy and gas sectors. The Malaysian Aviation Commission (‘Mavcom’) oversees competition in the aviation service sector.
The relevant authorities are the Commission and the Secretariat of the Commission (the Secretariat). The Commission is the deciding body in cartel matters, while investigations are conducted by the Secretariat. The Secretariat prepares the Commission’s decisions.
The Competition Law authorizes the Competition Authority to investigate offences committed under the Competition Law, as well as related offences. The Competition Law provides that the investigation offices are considered as "Police Station" with respect to investigation powers, and the Competition Authority often cooperates with other authorities (such as the police, Israel Securities Authority, etc.) in investigative activities.
Competition rules in Spain are enforced by the National Markets and Competition Commission (CNMC), whose statute is laid down in the Act of 2013 on the Spanish Markets and Competition Commission [4 June 2013]. The CNMC also has powers regarding the supervision and regulation over certain strategic sectors such as energy, telecommunications, railway and postal services.
Certain regional governments (Comunidades Autónomas) have also established a regional competition authority for the enforcement of the Competition Act 2007 within their jurisdictions. Regional competition authorities may have either full investigative and decision-making powers or only investigative powers, in which case the Board of the CNMC (that is, the decision-making body of the CNMC) adopts a decision on the basis of the enquiry conducted by the regional competition authority.
Therefore, the power to investigate cartel infringements, as well as other breaches of competition rules, is shared between the CNMC and the regional competition authorities. The latter may be competent provided that the scope of the investigated conduct does not exceed the territory of the corresponding region and does not otherwise affect market unity, economic balance among regions or constitutional rights, in accordance with the Act of 2002 on the Coordination between the State and the Regions in Competition Matters [21 February 2002]. In practice, regional competition authorities (whether they have investigative and decision-making powers or only investigative powers) inform the CNMC of every report filed with them and every procedure that they decide to open ex officio, so that the CNMC may present its opposition. If there is a conflict, a decision is made by an advisory committee(see below).
In Romania, the sole authority vested with the powers to investigate cartels (in light of both article 5 of the Competition Law and article 101 TFEU) is the CC.
Nevertheless, if a case falls in ambit of the European Commission, the latter, acting as investigative authority, may undertake enforcement activities directly in Romania, with the assistance of the CC and upon authorization from the Bucharest Court of Appeals.
The Competition Act and the TFEU are enforced by the Competition and Markets Authority (CMA) and certain sectoral regulators (e.g. the Financial Conduct Authority, in relation to financial services). Unless otherwise stated, for ease of reference the rest of this chapter focuses on the CMA.
The CMA is the only competition regulator with the power to investigate criminal cartels, and shares its powers of investigation and prosecution with the Serious Fraud Office (SFO). The SFO is the intended prosecutor of the offence in England, Wales and Northern Ireland in cases that involve complex fraud. In Scotland, the CMA and the National Casework Division (NCD) of the Crown Office cooperate to investigate and prosecute criminal cartel cases.
At an EU level, the Commission (DG Competition) is the principal enforcement body. However, Regulation 1/2003 enables national competition authorities in the Member States (NCAs) to enforce Article 101, as well as their domestic competition rules.
The Antitrust Law creates a new antitrust authority, the National Competition Authority which will be a decentralized and autarchic body within the Executive Branch. This new regulator will be organized in three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat. However, the selection process for the members of the Antitrust Authority has officially started on late March 2019, and is still in process as members have not been appointed yet. In the meantime, the current double-tier regulatory system will remain in force, composed by the Antitrust Commission (Comisión Nacional de Defensa de la Competencia), responsible of preparing technical reviews on mergers and investigations, and to issue recommendations to the Secretary of Domestic Trade, the ultimate ruling body. For the purposes of this guide, all references to the Antitrust Commission will encompass the Secretary of Domestic Trade unless expressly stated.
The competent authority in relation to enforcement of the Competition Act is the Norwegian Competition Authority ("NCA") . The NCA may also investigate potential infringements of Article 53 of EEA, if the cartel may affect trade between Norway and one or more EEA states. The NCA will then apply Article 53 in parallel with section 10 of the Competition Act.
The EFTA Surveillance Authority may investigate potential infringements of Article 53 EEA. If proceedings are initiated by ESA, the NCA will lose its competence to apply Article 53 for the matter in question. In practice, the NCA usually "hands over" such cases to ESA at an early stage.
Finally, the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) can investigate and prosecute cartel behaviour with a view to impose criminal sanctions, but this has not happened since the Competition Act entered into force in 2004.
As is established in article IV.16 §3, the Belgian Competition Authority (BCA) investigates cartels.
The HCC is the authority responsible for the enforcement of the Competition Act, as well as articles 101 and 102 TFEU. Pursuant to Law 2296/95, the HCC was established as an independent administrative authority with procedural and decision-making autonomy. Furthermore, Law 2837/2000 vested the HCC with administrative and financial autonomy. According to article 12 of the Competition Act, the HCC has legal personality and appears in its own right before any court, in all kinds of proceedings, whereas its members enjoy personal and functional independence. The HCC performs all the enforcement actions of a designated national competition authority (NCA) to apply national and EU competition rules, in accordance with Regulation (EC) 1/2003 (see article 5). It also has consultative powers in the area of identifying and removing regulatory barriers to competition. In particular, the HCC has broad enforcement powers in the area of collusive practices and cartels, abuses of dominance and merger control. In this context, the HCC may:
- take decisions finding an infringement of article 1 of the Competition Act and article 101 TFEU (collusive agreements and/or concerted practices between undertakings that have as their object or effect the restriction of competition) and impose administrative fines;
- take decisions finding an infringement of article 2 of the Competition Act and article 102 TFEU (abuse of dominance) and impose administrative fines;
- take interim measures in case of suspected infringement of articles 1, 2 and 11 of the Competition Act, as well as of articles 101 and 102 TFEU;
- review prior notifications of envisaged mergers and acquisitions (merger control of concentrations), in accordance with articles 5 to 9 of the Competition Act, and impose pertinent measures and sanctions;
- launch investigations and conduct dawn raids for the enforcement of antitrust and merger control rules;
- deliver opinions on competition issues on its own initiative or upon request of the Minister of Development and Competitiveness or of any other competent minister, in accordance with article 23 of the Competition Act; and
- conduct sector inquiries, in accordance with article 40 of the Competition Act.
The HCC cooperates closely with the European Commission and the national competition authorities in all EU member states in order to enforce EU competition rules, primarily in the context of the Regulation (EC) 1/2003. Furthermore, it cooperates closely with other competition authorities in its capacity as a member of the Organisation for Economic Co-operation and Development (OECD) and the International Competition Network (ICN).
The CCI along with its independent investigative arm, the Office of the Director General (DG), can investigate cartels.
The Swedish Competition Authority (SCA) is the independent governmental authority responsible for investigating cartel matters. Investigations may be initiated at the SCA’s own initiative or following a complaint or notification from a third party.
The principal authority involved in the enforcement and supervision of the Competition Act is the CPC. The CPC is an independent body which is competent for the implementation and enforcement of both the Competition Act and the Concentrations Act. CPC. The CPC is assisted in the execution of its duties by a body of staff members (“the Commission’s Service”) which is entrusted with wide powers to investigate cases of cartels whether at its own initiative or as a result of a complaint filed by a third party having a legitimate interest. In addition, the Commision’s Service introduces complaints and submits recommendations to the CPC, makes the necessary communications and publications and grants to the CPC every possible facilitation in order to fulfil its competences, powers and duties.
Furthermore, the parties affected by a decision of the CPC have 75 days from the issue of decision to file an administrative recourse to the Administrative Court, which is empowered to examine the legality of actions or omissions of any organ, authority or person exercising executive or administrative authority such as the CPC and to validate or nullify any such decision, action or omission. Any decision of the Administrative Court can be appealed against to, before the Supreme Court of Cyprus within 42 days from the date that the decision is issued but such an appeal may only be made on legal grounds. The decision of the Supreme Court is final.
The Competition Department at the Ministry of Economy is the governmental administrative authorities, (“The Competent Authority”), has the task of handling applications, investigations and the implementation of the Competition Law in UAE, while the Competition Regulation Committee (“The Competition Committee”) – which is chaired by the undersecretary of the Ministry of Economy – has the role of overseeing the work of the Competition Department.