Legal Bases for Cooperation Among Competition Agencies

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CHAPTER I

LEGAL BASES FOR COOPERATION AMONG

COMPETITION AGENCIES

The globalization of commerce poses challenges for authorities

enforcing antitrust and competition laws. As multi-jurisdictional

investigations and merger reviews proliferate, cooperation among

competition authorities has become increasingly important.

Competition authorities have developed a variety of practices and

protocols to facilitate cooperation and information sharing. These range

from informal discussions among enforcers to formal cooperation based

on legal instruments at the national or international level. This chapter

looks at these bases of cooperation.

A. Bilateral and Multilateral Cooperation Agreements

Cooperation agreements are concluded between two or more

governments to establish principles of cooperation and coordination

between competition authorities. Generally, cooperation agreements are

concluded bilaterally, but there are some multilateral agreements.

Multilateral organizations, such as the Organisation for Economic Co-

operation and Development (OECD), the International Competition

Network and the United Nations Conference on Trade and Development,

and regional organizations, such as the European Competition Network,

the Andean Community, and COMESA, among others, provide

opportunities for competition authorities to converge on substantive

competition standards.1

The initial cooperation agreements entered into by the EU, Canada,

and the United States were precursors to a growing network of bilateral

agreements with and between other jurisdictions. These “first-

generation” agreements allow competition authorities to exchange non-

confidential information or to exchange confidential information subject

to the consent of the source of the information.2

1. OECD, CHALLENGES OF INTERNATIONAL CO-OPERATION IN

COMPETITION LAW ENFORCEMENT 17 (2014), available at

https://www.oecd.org/daf/competition/Challenges-Competition-Internat-

Coop-2014.pdf.

2. Id.

2 International Investigations and Merger Reviews

First-generation agreements have given way to “second-generation”

agreements, which provide for more extensive cooperation and allow

competition authorities to exchange confidential information, under

certain circumstances, without obtaining prior consent from the source of

the information.3

Key provisions typically found in bilateral and multilateral

cooperation agreements are described below.

1.

Purpose

Most cooperation agreements refer to two broad purposes: first, to

contribute to the effective enforcement of each party’s competition law

through cooperation and coordination of enforcement activities; and,

second, to avoid or lessen the risk of conflicts in the application of each

party’s competition laws, by establishing cooperation mechanisms,

including notifications, coordination, or comity.4 They do not change or

override existing laws on either side, and they can be terminated with

relative ease.5

2.

Transparency

Due to differences in legal standards and enforcement systems,

competition authorities must have sufficient knowledge of each other’s

substantive and procedural rules, including confidentiality and disclosure

rules, to permit effective and efficient cooperation.

3. Id.

4. OECD, INVENTORY OF CO-OPERATION AGREEMENTS 7-8 (June 15, 2015)

[hereinafter OECD INVENTORY], available at

www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=daf/c

omp/wp3(2015)12/rev1&docLanguage=En. Some cooperation

agreements (e.g., Canada-Mexico (2001), Mexico-U.S. (2000), and

Brazil-U.S. (1999)) also include promoting cooperation on technical

assistance as a purpose. Id. at 8.

5. On ease of termination, see, e.g., Agreement Between the Government of

the United States of America and the Government of the Federative

Republic of Brazil Regarding Cooperation Between Their Competition

Authorities in the Enforcement of Their Competition Laws, Braz.-U.S.,

Oct. 26, 1999 (“This Agreement shall remain in force for an indefinite

period of time, unless one Party notifies the other Party in writing that it

wishes to terminate the Agreement. In that case, the Agreement shall

terminate 60 days after such written notice is given.” (Art. XII)),

available at https://www.justice.gov/atr/us-brazil-cooperation-agreement.