Merger Control in Latin America - A Jurisdictional Guide, Paulo BURNIER DA SILVEIRA, Pamela SITTENFELD (dir.), Foreword by Cani FERNÁNDEZ

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Competition enforcement benefits significantly from international cooperation among agencies – thanks to forums such as the OECD or ICN, or the ECN at a more regional level – an unstoppable trend witnessed over the last two decades in all enforcement areas, particularly mergers. Cooperation among national competition authorities has become essential to ensure consistency in our respective decisions, allowing for the creation of a global level playing field.

In our increasingly interconnected world, with the explosion of the digital economy, international cooperation in the analysis of merger control is more necessary than ever before, given the scope, dynamism and scale of the digital revolution. I am convinced that sharing the experience gained in the enforcement of competition policy and advocacy in this area, in a timely and fluid way, will also benefit companies operating globally.

Many of the issues that digital mergers raise are not entirely new; it is often the actual scale and the speed of change that can be challenging. In this regard, features such as multisided markets, network effects and economies of scale are not new, but digitalization greatly broadens their scope. The same can be said for innovation, which often plays a very relevant role in these markets and can be a key parameter for competition. In this context, there is enormous potential for competition authorities – regardless of their respective size and level of maturity – to join forces in sharing approaches, best practices, studies and experiences on competition enforcement issues.

The experience of international cooperation at a regional level gained by the Member States of the European Union, between themselves and with the EU Commission, provides food for thought, from the perspective of both the formal and informal mechanisms of cooperation.

In the area of merger control, cooperation under the framework of the EU Merger Regulation and, in particular, through the referral system within the EU has been extremely useful in overcoming some of the challenges that characterise digital mergers. Referrals give flexibility to the European system, where merger review at EU level coexists with national merger reviews, allowing for the best-placed authority to undertake the analysis of the transaction, even when the authority did not have initially jurisdiction to do so. This is, for instance, the case of the acquisition by Apple of Shazam, which did not meet the EU merger control threshold but was referred to the European Commission for review by a number of national competition authorities, whose merger control regimes captured the transaction under market-share thresholds, and decided to refer the case to the European Commission in view of its cross-border effects [1]. The referral mechanism also allows the notifying parties themselves to request that a case be referred. One such case was Facebook/WhatsApp [2]; again, the case met market-share thresholds in certain Member States and the parties requested the merger review to be referred to the EU Commission during the pre-notification phase.

For all competition matters, the European Competition Network (ECN) constitutes the main cooperation framework between the EU national competition authorities and the Commission for the enforcement of EU competition policy. It also provides a good forum for more informal but continuous cooperation.

In this context the ECN+ Directive – adopted on 11 January 2019, and to be transposed into national legislation of Member States by 4 February 2021 – will empower the competition authorities of Member States with the means to apply the rules on competition more effectively and guarantee the proper functioning of the internal market, helping to consolidate a level playing field through equivalent powers of enforcement of EU (and, consequently, national) competition law.

On a broader international level, both the OECD and the ICN have played a decisive role in facilitating cooperation between competition authorities, creating fertile forums for discussion and promotion of best practices.

Merger control in Latin America and the Caribbean will certainly benefit from closer cooperation between their competition authorities – either by sharing public information at different stages of an investigation, sharing theories of harm, obtaining appropriate waivers or studying the most suitable remedies to apply, or even adopting consistent best practices. Some of the merger control regimes in the region are quite young, and their authorities will certainly learn from the experience of more established ones. Getting to know and understand the characteristics, similarities or differences of other neighbouring regimes will help not only companies, but authorities as well, paving the way for consistent merger control in the region. To this end, this work I have the honour to introduce is a timely, useful and necessary tool: a thorough, practical and complete view provided by knowledgeable professionals of the actual status of merger control regimes in the region.

Footnotes

[1Apple/Shazam (Case M.8788) Commission Decision C(2018) 5748 final

[2(Case Comp/M.7217) Commission Decision C(2014) 7239 final.

Author

  • Spanish Competition Authority (Madrid)

Quotation

Cani Fernández, Merger Control in Latin America - A Jurisdictional Guide, Paulo BURNIER DA SILVEIRA, Pamela SITTENFELD (dir.), Foreword by Cani FERNÁNDEZ, November 2020, Concurrences N° 4-2020, Art. N° 98010, www.concurrences.com

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