Cooperation Between Antitrust Agencies at the International Level

336 Pages·2002·1.3 MB·English

by  Bruno Zanettin

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Cooperation Between Antitrust Agencies
at the International Level
The issue of international antitrust enforcement is high on the agenda for both
developed and developing economies. Bilateral cooperation between antitrust
agencies, in particular the European Commission and the US agencies, is the
focus of this new work. It first shows how bilateral cooperation was developed
as a response to the limits of the unilateral and extraterritorial application of
national competition laws, and how it has evolved from an instrument initially
designed to avoid conflicts into a tool aimed at coordinating joint investigations
of international competition cases. It then considers how bilateral cooperation
could be used optimally, by analysing two forms of advanced cooperation: the
exchange ofconfidential information, and positive comity, which is the only sat-
isfactory answer competition law can provide to market access cases. It shows
that the use of such instruments is limited by significant legal and political
obstacles, even in the context of the exemplary EC–US relationship.
The book therefore argues that the efficient use of bilateral cooperation will
be limited to a small number of well-established competition agencies. If inter-
national anticompetitive practices are to be efficiently addressed by an increas-
ingly large and heterogeneous group of competition agencies, horizontal
cooperation between antitrust agencies must be complemented by a multilateral
and supranational solution going beyond the proposals currently put forward.
The book concludes that only the WTO and its dispute settlement system could
provide the basis for such a system.
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Cooperation Between Antitrust
Agencies at the International Level
BRUNO ZANETTIN
HART PUBLISHING
OXFORD AND PORTLAND, OREGON
2002
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Published in North America (US and Canada) by
Hart Publishing
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Distributed in Netherlands, Belgium and Luxembourg by
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© Bruno Zanettin 2002
Bruno Zanettin has asserted his right under the Copyright, Designs and Patents Act 1988, to be
identified as the author ofthis work.
Hart Publishing is a specialist legal publisher based in Oxford, England.
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Printed and bound in Great Britain by
TJ International, Padstow, Cornwall
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To
my parents
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Contents
Table of Cases xi
Table of Treaties xvii
Table of Legislation xxi
Introduction 1
1 Addressing international restrictive practices at the national 7
level: a necessary but insufficient step
1 The generalisation of the effects doctrine as the first response 7
to the globalisation of anticompetitive practices
1.1 Towards the general acceptance of the extraterritorial application 7
of national laws for the protection of consumers
1.1.1 The main systems of competition law have long understood 8
the necessity to apply their laws extraterritorially
1.1.2 The generalisation of the use of the effects doctrine 22
1.2 The use of antitrust legislation to deal with practices 25
restraining exports: a more controversial use of
extraterritoriality
1.2.1 The privilege of the US law 25
1.2.2 Can EC competition law be used in market access cases? 31
2 The practical limitations to the unilateral application of 33
domestic laws in international competition cases
2.1 Extraterritoriality as a source of conflict: a fading issue? 34
2.1.1 The changing nature of conflicts of policies and interests 34
2.1.2 A remaining source of potential conflicts: differences in the 38
nature of the enforcement of national antitrust laws
2.2 A real issue: the difficult enforcement of domestic law in 41
international competition cases
2.2.1 Domestic limitations on the use of investigation and 42
enforcement measures
2.2.2 Investigations and enforcement actions can be impeded by 49
foreign legislation
2 Soft cooperation, or the coordination of antitrust investigations 53
1 Towards increased cooperation: the evolution of the provisions 53
of the existing bilateral agreements
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viii Contents
1.1 At the root of international cooperation: the OECD 53
recommendations
1.1.1 Laying down the principles: the OECD recommendations 54
of 1967 and 1973
1.1.2 Developing the principles: the 1986 and 1995 recommendations 55
1.2 The evolution of the bilateral agreements 57
1.2.1 The first generation of agreements: insufficient 58
cooperation, defensive provisions
1.2.2 The second generation of agreements: active cooperation, 65
positive comity
1.2.3 Conclusion: definition and status of these bilateral 76
agreements
2 Soft cooperation as it stands: the implementation of the 78
bilateral agreements
2.1 Joint investigation and coordination of actions 78
2.1.1 The process of notification 78
2.1.2. The actual working of cooperation 80
2.2. First assessment of bilateral cooperation 102
2.2.1 Factors affecting the level of cooperation 103
2.2.2 Conclusions 115
3 Towards hard cooperation: the exchange of confidential 119
information
1 Reluctance to conclude agreements on exchange of 121
information is a characteristic of international cooperation
in the field of antitrust
1.1 Considering the current confidentiality laws, exchange of 121
confidential information between competition authorities
require the enactment of new legislation or treaties
1.1.1 Overview of the rules of confidentiality in the competition 122
laws of the United States, the European Community,
Canada and Australia
1.1.2 Conclusion 126
1.2 The exchange of confidential information raises several types 128
of objections
1.2.1 The reluctance to conclude exchange of information 128
agreements in the field of antitrust contrasts with the
extent of cooperation in other areas of law
1.2.2 Obstacles to the exchange of confidential information in 131
the field of antitrust
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Contents ix
2 The instruments of exchange of information 145
2.1 International cooperation with courts acting as intermediary 145
2.1.1 Rogatory letters, letters of request and the Hague Convention 146
2.1.2 Cooperation based on treaties on multilateral assistance in 149
criminal matters
2.2 The ultimate step in information sharing: direct cooperation 155
between antitrust agencies
2.2.1 The Australian example: the forerunner in interagency 155
cooperation
2.2.2 The IAEAA and the assistance it can provide 158
2.2.3 The limitations on the assistance that can be provided 161
under the IAEAA
2.2.4 The guarantees of confidentiality provided by the IAEAA 164
2.2.5 A possible application of the IAEAA: the case of the 169
European Union
4 Towards hard cooperation: positive comity 183
1 The experience of positive comity shows the possible scope 185
and the limits of the use of this instrument
1.1 Cases in which positive comity was invoked illustrate the 186
two possible uses of this concept
1.1.1 Positive comity in cases where anticompetitive behaviours 187
affects the requesting party’s consumers
1.1.2 Positive comity in cases where anticompetitive practices 188
affect the requesting party’s exporters
1.2 Contrasts in the implementation of positive comity: lessons 191
for the future
1.2.1 Positive comity between equals: the EC–US model 192
1.2.2 Positive comity between unequal partners 196
2 Assessing the potential legal scope of positive comity 198
2.1 The role of positive comity in dealing with conducts 199
affecting foreign markets: a limited but possible role
2.1.1 Under US law 199
2.1.2 Under EC law 208
2.2 The role of positive comity in dealing with conduct affecting 213
foreign importers: the main potential use of positive comity
2.2.1 The application of competition law to restraints of 214
imports by national firms
2.2.2 Foreclosure under US and EC competition law from a 218
positive comity perspective
3 Conclusion 225
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x Contents
5 Completing bilateral cooperation: the multilateral option 229
1 A plurilateral agreement on competition rules: a necessary but 229
difficult step to complement bilateral cooperation between
antitrust agencies
1.1 The example of bilateral cooperation underlines the necessity 229
of adopting a plurilateral agreement on competition issues
1.1.1 Bilateral cooperation can only be efficiently used by a 229
limited number of countries
1.1.2 The different options for a multilateral competition system 234
1.1.3 Comments on the different options 238
1.2 The negotiation of a set of multilateral competition rules 241
within the WTO raises important issues and objections
1.2.1 Managing the interface between trade and competition 241
1.2.2 Other concerns 247
2 The possible content of a multilateral agreement on competi- 250
tion policy, in the light of the experience acquired through
bilateral cooperation
2.1 Creating a pattern for the effective and coordinated enforcement 251
of competition policies at the international level
2.1.1 Obligation for states to adopt effective domestic rules 252
2.1.2 On the nature of international enforcement and cooperation 257
2.2 Dispute panel settlement and competition issues 265
2.2.1 The scope of application of the Dispute Panel Settlement 266
2.2.2 The standard of review 268
2.2.3 Procedural issues 272
3 Conclusion 277
Conclusion 279
Bibliography 283
Index 297