International Cooperation between
competition agencies
The ACCC perspective on
cooperation with the NZCC
3rd ASEAN-CER Integration
Partnership Forum
Cairns, 18 June 2013
Outline
1. Australia’s formal cooperation frameworks
2. Modes of cooperation between competition agencies
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Using the ICN to identify and adopt best practice
Building capacity between our agencies
Facilitating “informal” cooperation
Formal arrangements between the NZCC and ACCC
3. Some lessons from the ACCC and NZCC experience
Australia’s formal cooperation frameworks
Mechanism
Confidential information exchange
permitted?
Bi or multilateral MOUs
Agency Only
Arrangements encouraging close
economic relations
Agency Only
Legislation in place in multiple
jurisdictions allowing cooperation
Agency and Third Party, where an
MLAT is in place
Bi-lateral agreement
Agency and Third Party, between the
agreement parties
Free Trade Agreement
Agency Only
National legislation permitting
Yes, to all counterparts at ACCC
unilateral disclosure of evidence to discretion
counterparts
ACCC NZCC cooperation
Capacity
building
Informal
Treaty and
legislation
Formal
cooperation
Modes of cooperation
Using the OECD and ICN to identify best practices
• OECD Competition Committee seeks to identify and
recommend best practices in competition policy
• The International Competition Network's mission is to
– advocate the adoption of superior standards and procedures in
competition policy around the world,
– formulate proposals for procedural and substantive convergence
– seek to facilitate effective international cooperation to the benefit of
member agencies, consumers and economies worldwide
• We are actively involved with the OECD’s Competition
Committee & ICN working groups
• We seek to implement OECD & ICN best practice
Modes of cooperation
Cooperating to build effectiveness and
capacity within our agencies
The ACCC and NZCC regularly engage on:
– Domestic law reforms
– Agency policy reform, such as developing guidelines on our
approaches to assessing mergers and cartel immunity policies
– Encouraging compliance with competition laws
– Engagement in other forums for cooperation
Modes of cooperation
“Informal” cooperation on investigations
• Cooperation without a specific treaty, MOU or domestic
legal instrument to permit the cooperation
• Sharing confidential information from third parties,
requires their consent. We seek ‘waivers’ from them.
• Sharing agency information, documents or evidence is
possible but instigating evidence gathering on behalf of
another agency is not.
Modes of cooperation
“Informal” cooperation on investigations
• What does it achieve?
– It helps to identify if a competition concern is likely to arise in
your jurisdiction
– It helps you constructively analyse your case theory
– It helps you coordinate international investigations
• Some examples
– Staff visits between agencies to understand common cases
– Monthly meetings
– Cooperation under waivers
Modes of cooperation
Formal cooperation: sharing evidence
• Requires legal framework to balance the rights of individuals
and private companies with effective regulation of competition
laws
• Rare occurrence but can be crucial to preventing and
punishing conduct which is economically harmful
• Examples include
– Gathering evidence - Conducting compulsory document requests or
executing search warrants for foreign agencies under Mutual Legal
Assistance Treaties or similar treaties
– Exchanging confidential information documents and evidence
Modes of cooperation
Formal cooperation: sharing evidence
Marine Hose Case
• Marine hose is rubber hose
used at offshore moorings
to transfer crude oil and gas
products from production
facilities to tankers.
• Cartel members controlled
prices, engaged in bid rigging
and allocating customers.
• The cartel ended in 2007
following dawn raids by the
European Commission, JFTC,
the UK OFT and the US DOJ.
Modes of cooperation
Formal cooperation: sharing evidence
Marine Hose Case
• Following a formal request, in early November 2008 the UK OFT
Chairman provided documents to the ACCC including copies of
emails and witness statements,
• Released subject to strict confidentiality and other conditions.
• In 2009, the ACCC relied on some of the documents for Federal Court
proceedings in which a total of $AUD8.24 million was ordered against
cartel members who supplied marine hose to Australian oil and gas
suppliers.
Some lessons learned?
Our experience is that:
• Effective competition regulation is a driver of growth and
productivity
• Effective regulation requires effective competition laws
and the effective enforcement of those laws
• As business operates beyond national borders effective
enforcement of competition laws is only achieved
through cooperation between enforcement agencies
Some lessons learned?
Effective cooperation between the NZCC and ACCC is driven
by trust and by being pragmatic and flexible.
– We have regular contact at operational, senior and Commissioner
levels including cross appointments
– Our relationship is underpinned by legal arrangements, but not
driven by them, it has a pragmatic operational flavour.
– We rely foremost on building understanding of our similarities and
differences and best practice
– We use “informal” mechanisms whenever possible.
– Improving legal framework including legislation allowing information
sharing and Trans Tasman enforcement will make enforcement
cooperation even stronger over time.
Some lessons learned?
• We are always seeking to improve:
– Difficulties we had in sharing information in some earlier cases
may not arise now because of new formal arrangements.
– ‘Soft’ convergence is a key for building cooperation but it
requires ongoing attention
– a framework to regularly meet and engage at an operational
level assists (eg we have regular cartel discussions)
• We each gain from cooperation bilaterally, regionally and globally –
we do not exclude others
International Cooperation between
competition agencies
The ACCC perspective on
cooperation with the NZCC
3rd ASEAN-CER Integration
Partnership Forum
Cairns, 18 June 2013
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International Cooperation between competition agencies