International cooperation in cartel enforcement An OECD perspective Antonio Capobianco Senior...
-
Upload
brice-marshall -
Category
Documents
-
view
218 -
download
1
Transcript of International cooperation in cartel enforcement An OECD perspective Antonio Capobianco Senior...
International cooperation in cartel enforcement
An OECD perspective
Antonio Capobianco
Senior Competition Expert,
OECD Competition Division
ICN Annual Conference, Sydney 2015
• Trends in globalisation and on the spread of competition law enforcement
• Increasing number of multi-jurisdictional cases and increasing complexity of enforcement co-operation
• Some findings from the 2013 OECD/ICN Survey
• A description of the innovative aspects of the 2014 OECD Recommendation on international co-operation
• A couple of personal remarks on where we could go next
Structure of the presentation
2
The world economy rebalancesS
har
e o
f wo
rld
GD
P
Source: OECD data and projections
1995 2014 2030
3
64%
48%
38%
Bear in mind that globalization still has a long way to go!
Gross exports.
Source: Johansson and Olaberria, “Long-run patterns of trade and specialisation”, OECD Economics Working Paper 1136
4
5
Spread of competition law enforcement
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012
0
20
40
60
80
100
120
140
Jurisdictions with Competition Law and a Competition Authority
Source: OECD
EU International Merger filings
1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 20120
20
40
60
80
100
120
140
160
180
200
EU cross-border merger filings between 1991 and 2012
1. Mergers between companies headquartered in the same EU member state.2. Mergers between companies headquartered in more than one EU member state. 3. Mergers involving at least one company based outside the EU, and with effects in the EU.
6
The geographical distribution of EC cartel cases since 1990
Among EU countries
EU country plus other continent
Among other continent countries
0%
10%
20%
30%
40%
50%
60%
70%
1990-20002001-2013
Source: OECD 7
Complexity of co-operation
• As the number of agencies involved grows and the number of cross border cases increases, the current system may prove insufficient or inefficient.
– Cases may involve agencies which do not have a co-operation agreement
– Also, these co-operation agreements may be different in scope and provide for different co-operation tools
# of authorities
Interfaces of co-
operation
1 0
2 1
5 10
10 45
20 190
30 435
40 780
50 1,225
100 4,9508
A
B
CD
E
Complexity of co-operation
• As the number of agencies involved grows and the number of cross border cases increases, the current system may prove insufficient or inefficient.
– Cases may involve agencies which do not have a co-operation agreement
– Also, these co-operation agreements may be different in scope and provide for different co-operation tools
# of authorities
Interfaces of co-
operation
1 0
2 1
5 10
10 45
20 190
30 435
40 780
50 1,225
100 4,9509
A
B
CD
E
Complexity of co-operation
• As the number of agencies involved grows and the number of cross border cases increases, the current system may prove insufficient or inefficient.
– Cases may involve agencies which do not have a co-operation agreement
– Also, these co-operation agreements may be different in scope and provide for different co-operation tools
# of authorities
Interfaces of co-
operation
1 0
2 1
5 10
10 45
20 190
30 435
40 780
50 1,225
100 4,95010
A
B
CD
E
Examples of cross-border investigations
Air Cargo• Investigations by USDOJ, EC, Australia, Canada, and Korea
following co-ordinated dawn raids • Resulted in over $1.7 billion fines in US, over €799 million
fines in EU etc.
Marine Hose• Investigations by USDOJ, EC, UK, Australia, Japan, Korea • Unprecedented level of co-operation: involved exchange of
confidential information, co-ordination of remedies, extradition
Automobile parts• Investigation by more than 10 authorities following co-
ordinated dawn raids • Resulted thus far in over $2.3 billion fines in US, over €1.1
billion fines in EU etc.
11
Complexity of co-operation
• As the number of agencies involved grows and the number of cross border cases increases, the current system may prove insufficient or inefficient.
– Cases may involve agencies which do not have a co-operation agreement
– Also, these co-operation agreements may be different in scope and provide for different co-operation tools
# of authorities
Interfaces of co-
operation
1 0
2 1
5 10
10 45
20 190
30 435
40 780
50 1,225
100 4,95012
?
A
B
CD
E
• Developed based on the result of the OECD/ICN joint survey. – The survey was addressed to 120 competition agencies around the
world and received 57 responses which were used in analysis.
• The report analyses, for example; – Legal basis for and experiences with formal co-operation
– Experiences in international co-operation
– Regional and multilateral co-operation
– Limitation and constraints
– Exchange of information and confidentialitywaivers
– Suggestions for future work
OECD/ICN Survey on International Enforcement Co-operation (2013)
Available at: http://www.oecd.org/daf/competition/oecd-icn-international-cooperation-survey.htm
13
Experience with international co-operation
# of cases reported by agencies
# of agencies with any
experience
2011 2010 2009 2008 2007
Cartel 19 55 51 49 47 48
Merger 21 116 101 106 96 86
Abuse of Dominance 13 29 26 22 22 22
Number of Cases in which Agencies had Co-operated, by Enforcement Area (2007-2011)
14
• The number of cases involving international co-operation has increased over time
• Respondents expect the frequency of international co-operation to continue to increase, due in part to growth in the number of multi-jurisdictional cases
Experience with International Co-operation
Increase in Cases Involving Co-operation (2007-2011)
Cartel 15%
Merger 35%
Abuse of Dominance 30%
15
Experience with international co-operation
No experience 1-5 cases 5+ cases0
5
10
15
20
25
30
All
OECD members
Non-OECD members
Number of Cases in Which Agencies had Co-operated (2007-2012)
16
17
76%
9%
15%
0
1-2
3+
Source: Michal S. Gal, "Antitrust in a Globalized Economy: The Unique Challenges of Small and of Developed Economies, 33 Fordham International Law Journal 1-56 (2009)
Number of international/global cartels cases brought by small agencies over a period of 5 years
Global cartels are investigated by a limited number of jurisdictions
18
• Adopted by OECD Council on 16 September 2014. It revises the 1995 Recommendation.
The revision process:
Recommendation on International Co-operation (2014)
WP3, October 2013
WP3, February 2014
CC+ WP3, June 2014
OECD Council, September 2014
• A drafting team worked on the draft Recommendation to be discussed at the WP3 in February 2014.
• BIAC (business voice to the OECD) was involved in the discussion on drafts.
• The drafting team continued to work on the draft and developed another revised draft for the approval at the June meeting.
• BIAC continued to be consulted during the process.
The new recommendation was approved.
• The new recommendation recognises the benefits of effective co-operation not only for competition authorities as well as for businesses. – Reducing regulatory costs and delays, limiting the risk of
inconsistent analysis and remedies
• Main points:– Members’ commitment to effective international co-operation – Consultation and Comity – Notification procedures – Coordination of parallel investigations– Exchange of information – Investigative assistance
Recommendation on International Co-operation (2014)
Available at: http://www.oecd.org/daf/competition/international-coop-competition-2014-recommendation.htm
19
• The new recommendation recognises the benefits of effective co-operation not only for competition authorities as well as for businesses. – Reducing regulatory costs and delays, limiting the risk of
inconsistent analysis and remedies
• Main points:– Members’ commitment to effective international co-operation – Consultation and Comity – Notification procedures – Coordination of parallel investigations– Exchange of information – Investigative assistance
Recommendation on International Co-operation (2014)
Available at: http://www.oecd.org/daf/competition/international-coop-competition-2014-recommendation.htm
20
Members’ commitment to effective international co-operation
OECD Recommendation on International Co-operation (2014): Adherents commit to effective international co-operation and take appropriate steps to minimise direct or indirect obstacles or restrictions to effective enforcement co-operation between competition authorities.
• Minimising the impact of legislation and regulations that might restrict co-operation or hinder an investigation or proceeding of other countries
• Transparency of respective substantive and procedural rules
• Reducing inconsistencies between their leniency or amnesty programmes
21
22
Exchange of confidential information
International agreements (second generation
agreement)
• Australia-US (1999) • EU-Swiss (2013)• NZCC-ACCC (2013)• Nordic countries (2001) • European Competition Network
(2004)
National provisions
• Australia (Section 155AAA) • Canada (Section 29)• Germany (§ 50) • UK (Section 243)
OECD Recommendation on International Co-operation (2014): Adherents should consider promoting the adoption of legal provisions allowing for the exchange of confidential information between competition authorities without the need to obtain prior consent from the source of the information (“information gateways”).
23
• Investigation assistance may include:– Providing public information– Assisting in obtaining confidential information – Employing its authority to compel the production of information
in the form of testimony or documents on behalf of the other authority
– Ensuring the service of official documents of the other authority– Executing searches on behalf of the other authority
Investigative assistance
OECD Recommendation on International Co-operation (2014):[…] competition authorities of the Adherents should support each other on a voluntary basis in their enforcement activity by providing each other with investigative assistance as appropriate and practicable, taking into account available resources and priorities.
24
• The OECD Recommendation is aspirational!
• It is about complying with the letter but also with the spirit of the Recommendation
• Agencies are called to think as policy makers not as current enforcers
• It is about building a co-operation platform for the future
• Is there room for new forms of co-operation?– One-stop-shop system for markers?
– Best/better placed agency(ies)?
– Recognition of foreign decisions?
• This is a complex area with important challenges, but it is an area where OECD and ICN can join forces
What next?
Antonio CAPOBIANCO, Senior Competition Expert : [email protected]
Please visit:
http://www.oecd.org/daf/competition
http://www.oecd.org/daf/competition/internationalco-operationandcompetition.htm
Thank you very much for your attention!
The views expressed in this presentation are solely those of the author
and do not necessarily reflect the views of the OECD or its Members. 25
International co-operation in cartel enforcement
An OECD perspective
Antonio Capobianco
Senior Competition Expert,
OECD Competition Division
ICN Annual Conference, Sydney 2015