International co-operation

 

Author Definition

 

Definition

With the globalization of business and competition law, competition agencies must work together to promote policy coherence and consistent case enforcement. They do so through International Cooperation — a loose term encompassing policy and enforcement cooperation, sometimes used to refer solely to enforcement cooperation. Through enforcement cooperation, competition agencies investigating the same matter coordinate to improve their analyses and learning, avoid inconsistent outcomes, and enhance investigational efficiency. Through policy cooperation, competition agencies rely on bilateral relations and engagement in regional and multilateral fora to promote understanding and convergence toward sound competition policy and practice across jurisdictions. The policy and enforcement prongs of international cooperation are intertwined and mutually supportive.

 

Commentary

Over 130 jurisdictions have competition laws and agencies. While these competition laws often are premised on the same objectives, the distinct legal structure, economic development, and history of each jurisdiction has resulted in differences among competition laws, tools, and enforcement practices. As business activities continue to expand internationally and competition agencies from multiple jurisdictions increasingly assess the same conduct or merger, the development of coherent competition approaches internationally and consistent enforcement outcomes is crucial. Through international cooperation, both policy and enforcement cooperation, competition agencies voluntarily work with one another to exchange learning and experience to better understand these differences, promote substantive and procedural convergence toward best practice, and to avoid conflicting enforcement outcomes. These efforts are often facilitated by private parties and practitioners.

Through policy cooperation, competition agencies build trust and understanding via the development of bilateral relations and the exchange of experience in regional and multilateral fora. This can range from capacity building to detailed discussions of procedural and substantive approaches and novel enforcement issues. Through this engagement, the international competition community has identified consensus international approaches to competition policy and practice and developed and adopted important guidance and international best practice recommendations on substantive antitrust and procedural fairness in multilateral fora such as the Organisation for Economic Co-operation and Development (“OECD”) and the International Competition Network (“ICN”). These efforts serve as the foundation for international convergence toward sound competition law and enforcement. Such consistent approaches to competition law, policy and procedures across jurisdictions facilitates enforcement cooperation among competition authorities. As agencies develop similar analytical and procedural approaches, the potential for conflicting enforcement outcomes narrows. Moreover, efforts to forge policy convergence foster improved relations among agencies that are instrumental to enforcement cooperation.

Enforcement cooperation has transformed, since its inception almost sixty years ago. Initially used primarily to manage conflicts that arose from the extraterritorial impact of antitrust enforcement by one agency in the jurisdiction of another, enforcement cooperation continues to mature and develop as competition agencies and laws increasingly focus on common objectives. Modern enforcement cooperation aims to allow agencies reviewing the same matters to identify issues of common interest, streamline investigations, improve their analyses, and avoid inconsistent outcomes. Enforcement cooperation is a key means for improving the effectiveness of individual agency investigations and producing consistent outcomes in similar circumstances, reducing burden for the business community and the enforcement agencies, alike. As business transactions and conduct continue to transcend national borders and the number of competition agencies assessing the same conduct and transactions expands, the need for enforcement cooperation intensifies. A recent OECD/ICN joint report on cooperation identified a continued trend toward increasing enforcement cooperation among competition agencies in all enforcement areas — mergers, cartels and unilateral conduct. (Joint Report at Chapter 12)

Competition agencies enter into enforcement cooperation voluntarily, with the nature of such cooperation dependent on the needs of the individual case, for example, whether the investigations raise similar competitive overlaps or cross-border concerns or a remedy considered by one agency may impact another. Enforcement cooperation may range from merely informing cooperating authorities of the stages of the investigation, to engaging in regular, detailed discussion of substantive issues, to coordinating “dawn raids,” to exchanging information and conducting joint interviews, to coordinating remedy design and implementation and may even include investigative assistance. (U.S. International Guidelines at Chapter 5) Similarly, if multiple agencies are cooperating on a matter, the cooperation may be differentiated among the agencies, depending on the competitive impact and intensity of the investigation in each jurisdiction.

Any enforcement cooperation undertaken by agencies must be consistent with their domestic rules, notably as concerns confidentiality and privilege. Prior to engaging in such cooperation, the agencies will have a common understanding regarding confidentiality protection of information shared. This can be based on formal agreements or less formal arrangements such as memoranda of understanding, the OECD Cooperation Recommendation and the ICN Framework for Merger Review Cooperation.

With a common understanding in place, the agencies will frequently exchange publicly available information as well as “agency confidential” information, which is information that the agencies are not statutorily prohibited from disclosing, but normally treat as non-public, e.g., the fact that the agencies have opened an investigation and how the staff analyzes the case, including product and geographic market definition, assessment of competitive effects, as well as potential remedies, as relevant. For some matters, the exchange of this information is sufficient to meet the agencies’ cooperation needs. For matters requiring deeper cooperation, the agencies may seek to exchange confidential business information, i.e., information received from parties or third parties the confidentiality of which is protected by statute. However, agencies can exchange such information only pursuant a waiver of confidentiality (an instrument provided voluntarily by a party or third party that enables two or more investigating agencies to share the party’s confidential business information as related to the investigation), or through a provision in the law or a mutual assistance agreement that allows confidential business information to be shared without consent. Some regional enforcement network agreements also provide for this type of information sharing, such as the European Competition Network in the application of European Union competition rules. (Council Regulation 1/2003 at Art. 12)

Practically, enforcement cooperation is most effective when the cooperating agencies’ investigative timetables allow staff to engage on substantive issues at key stages of their respective investigations. This can be facilitated through early communication, including with parties, who may be able to time notification submissions to optimize such coordination. Early communication and coordination is also critical to cooperation on remedies, and may result in the development of a remedial package that comprehensively addresses the concerns of multiple authorities, or even in one authority’s forgoing its remedy by taking into account and informally deferring to a cooperating agency’s remedy. Agencies have set out core approaches to cooperation in important practical tools, training materials and best practices developed bilaterally and in the context of multilateral organizations, such as the ICN, OECD and UNCTAD. (See e.g., US-EU Merger Cooperation Best Practices, ICN Leniency Cooperation Guidance, and UNCTAD Cooperation Guiding Policies) Agencies also continue to seek to improve cooperation tools to allow for cooperation among a broader range of agencies and to deepen cooperation among key partners to foster increased opportunities to request investigative assistance and the exchange of confidential materials. (E.g., MMAC Framework MOU) These issues are addressed through policy dialog and in the context of enforcement cooperation, and demonstrate the mutually supportive nature of both prongs of international cooperation.

 

Bibliography

Recommendations and Best Practices on Competition: ICN and OECD

OECD/ICN Joint Report on International Co-Operation in Competition Enforcement 2021,

Antitrust Guidelines for International Enforcement and Cooperation, issued by the U.S. Department of Justice and the Federal Trade Commission, 2017

Recommendation of the OECD Council concerning International Co-operation on Competition Investigations and Proceedings, 2014

ICN Framework for Merger Review Cooperation, 2012,

Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102] of the Treaty (Official Journal L 1, 04.01.2003, p.1-25)

US-EU Merger Working Group Best Practices on Cooperation in Merger Investigations, 2011

ICN Guidance on Enhancing Cross-Border Leniency Cooperation (2020)

United Nations Conference on Trade and Development Guiding Policies and Procedures under section F of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, UNCTAD/DITC/CPLP/MISC/2021/2, 2020

Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities, 2020, Memorandum of Understanding among the Australian Competition and Consumer Commission; the Competition Bureau of the Government of Canada; the New Zealand Commerce Commission; the United Kingdom Competition and Markets Authority; the United States Department of Justice; and the United States Federal Trade Commission

This article is being reviewed by the Editors of the Dictionary.

Author

  • US Federal Trade Commission (FTC) (Washington)

Quotation

Elizabeth Kraus, International co-operation, Global Dictionary of Competition Law, Concurrences, Art. N° 12198

Visites 1481

Publisher Concurrences

Date 1 January 1900

Number of pages 500

 

Institution Definition

Co-operation in the area of competition policy and enforcement between competition agencies in two (bilateral) or more countries (trilateral, plurilateral) which mostly takes place in an informal way, but sometimes on the basis of formal co-operation agreements. It aims at exchanging information in specific antitrust or merger cases of mutual interest to the agencies, at co-ordinating the respective approaches in a number of key items - such as market definition, remedies etc - and at providing each other with assistance in enforcement activities. Beyond this daily case related co-operation, competition agencies co-operate within multilateral and international fora - such as the OECD Competition Committee, the UNCTAD Intergovernmental Group of Competition Experts and the WTO Working Group on Trade and Competition - to exchange views on various policy matters, promote consensus on best practices and agree upon policy recommendations addressed to their governments and to the private sector.

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