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– 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

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 unilateral disclosure of evidence to counterparts

Yes, to all counterparts at ACCC discretion

Australia’s formal cooperation frameworks

ACCC NZCC cooperation

Capacity building

InformalTreaty 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 evidenceMarine Hose Case• Marine hose is rubber hose

used at offshore moorings to transfer crude oil and gasproducts 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 evidenceMarine 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