“International Cooperation in Cartels
Investigation”
Vedomosti Business Daily Competition Conference
Brussels
16th December 2016
Dr. Theodor Thanner
Director General
Overview
I.
Austrian Competition Authority
II.
Enforcement of Competition Law – a Global Issue
III. Goals of Cooperation
IV. Ways of Cooperation
V.
European Competition Network – ECN
VI. Examples of Informal Regional Networks
VII. Other Examples of Regional Cooperation
VIII. Possible next Steps
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I. Austrian Competition Authority
since 2002
independent
monocratically organised
27
Case handlers
2,84 Mio €
Budget (2015)
~100
dawn raids in the
last 5 years
total fines
~ 193 Mio €
in 2015: 34,8 Mio €



Head: Director General Dr. Theodor Thanner
Organisational structure: sectors
Reporting obligation to the Parliament
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II. Enforcement of Competition Law – a Global Issue
 Questions of competition law and enforcement are not limited
by geographical borders
 Economies interconnected (e.g. financial crisis)
 Facing a well informed internationally well connected
business community
 Need for cross-border cooperation & coordination
 Looking for common positions on common problems leads to
mutual benefit
 Cooperation leads to harmonization on the long term →
beneficial to enforcers and business community
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III. Goals of Cooperation
 Increasing efficiency of our investigative steps
 Avoid duplicating work → create synergies
 Avoid destruction of evidence
 Avoid contradicting remedies
 Create a transparent legal environment
 Strengthen each others independence
 Avoid contradicting factual and legal analysis
 Fast decisions
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IV. Ways of Cooperation
 Formal Cooperation
→ needs a legal basis
a. Coordination of enforcement activities: → needs a legal basis: e.g. Reg
1/2003; coordinated dawn raids to avoid destruction of evidence.
b. Information Exchange: For the exchange of confidential information→
needs a legal basis: e.g. Reg 1/2003 or obtain a waiver from the parties.
c. Cooperation in enforcement: → needs a legal basis: e.g. Reg 1/2003;
FCA conducted dawn raids for German BKA in the fire brigade case.
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IV. Ways of Cooperation
 Informal Cooperation
a. Exchange of non confidential information: bilateral update on recent
developments e.g. existence of investigation, theories of harm, market
analysis, industry background.
b. Memoranda of understanding: FCA with FAS, Swiss Authority, Serbian
Authority etc.
c. Technical Assistance: Twinning (FCA in Moldova), study visits,
workshops.
d. Exchange of views: bilateral meetings, Vienna Competition Conference
2010, 2nd China-Europe Legal Forum 2014, Competition Conference - Best
Practices in Investigations, Vienna 2014.
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V. European Competition Network - ECN
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V. European Competition Network – ECN (II)
•
The European Competition Network (ECN) has been established in 2003
as a forum for discussion and cooperation of European competition
authorities in cases where Articles 101 and 102 TFEU are applied.
•
It should ensure an efficient division of work and an effective and consistent
application of EC competition rules. The EU Commission and competition
authorities from EU member states cooperate with each other through the
ECN by:
– informing each other of new cases and envisaged enforcement
decisions;
– coordinating investigations, where necessary;
– helping each other with investigations;
– exchanging evidence and other information and
– discussing various issues of common interest.
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V. European Competition Network – ECN (III)
Legal Basis
•
•
Art 11 and 12 Reg 1/03: cooperation between COM and NCAs and exchange of
information for the purpose of applying Art 101 and 102.
Commission Notice on cooperation within the Network of Competition Authorities
(2004/C101/03).
Main Features
•
•
•
•
Close cooperation between NCA and COM in COM-antitrust cases (application
of Art 101 and 102) as well as between NCAs in „national“ Art 101 and 102
cases.
NCA informs COM in writing, if they apply Art 101 or 102 TFEU – before or
without delay after commencing with the first formal investigative measure
(Art11/3 Reg 1/03) – in practice this information happens via the internal platform
ECN-Interactive.
The NCA has to inform the COM on the draft decision no later than 30 days
before the adoption of the decision (Art 11/4 Reg 1/03).
Any MS may consult COM when applying Community law (Art 11/5 Reg 1/03).
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V. European Competition Network – ECN (IV)
Case allocation
• Case allocation: principle of well placed authority.
• System of parallel competences: NCA, various NCAs and/or COM.
• COM is particularly well placed, if the behaviour has effects on competition in
more than three MS.
• The question of re-allocation should be solved within two months starting with the
date of the first information sent to the network (via ECN-Interactive).
Information exchange
• Information Exchange takes place on a bilateral basis.
• Legal basis: Art 12 Reg 1/03.
• Official request to forward information.
• Two different cases:
• NCA investigates case upon request of another NCA.
• NCA asks for the exchange of available information
•
Exchange of information in course of an inspection, carried out for another NCA,
is also based on Art 12 Reg 1/03.
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V. European Competition Network – ECN (V)
Assistance to other ECN members
•
An NCA may in its own territory carry out any inspection or other measure under its national
law on behalf and for the account of another NCA in order to establish whether there has
been an infringement of Art 101/102 TFEU.
•
The Inspection may be carried out simultaneously with an inspection at the national level.
•
After the inspection, the collected evidence is sent in accordance with the exchange of
information mechanism.
Objective of the ECN
•
Build an effective legal framework to enforce EC Competition law against undertakings that
engage in cross-border business practices which restrict competition and are therefore anticonsumer.
•
Within the ECN, groups of experts in specific sectors (banking, securities, energy, insurance,
food, pharmaceuticals, etc.) discuss competition problems and promote a common approach.
•
In this way, the ECN allows competition authorities to pool their experience and identify best
practises.
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V. European Competition Network – ECN (VI)
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VI. Examples of Informal Regional Networks
 FAS Working Group Oil Prices
 Russian Federation, Bulgaria, Austria, Kazakhstan, Latvia, Portugal,
Romania, Germany.
 Discussion of existing approaches to monitoring and analysis.
 Exchange of experience in the market of oil and oil products.
 Exchange of information on national cases.
 Creation of a case data base.
 Marchfeld Competition Forum

Austria, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Romania, Slovakia, Slovenia, Switzerland, DG Competition.
 Strengthening regional cooperation/coordination with regard to crossborder issues of common concern.
 Exchange of Information; best practices; know-how flow.
 Defining common positions.
 Merger Information Exchange Platform.
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VI. Examples of Informal Regional Networks
 Mediterranean Round Table
 Launched by BWB in December 2011.
 Algeria, Egypt, Jordan, Lebanon, Morocco, Palestine, Syria,
Tunisia.
 Observers: European Commission, UNCTAD, OECD, Turkish
Competition Authority.
 Platform for exchange.
 Discussing current developments and address problems.
 Find common solutions and reflect on the way forward.
 Last meeting in January 2016, Malta.
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VII. Other Examples of Regional Cooperation
 International Competition Network (ICN)
 European Competition Authorities (ECA)
 Central European Competition Initiative (CECI)
 Nordic Competition Authorities
 United Nations Conference on Trade and Development (UNCTAD)
 Organization for Economic Co-operation and Development (OECD)
 Eurasian Economic Commission
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VIII. Possible next Steps
 The ICAP as Best Practice for Cooperation
 Basic platform for interaction of CIS Antimonopoly Authorities.
 Joint investigations in CIS markets → Headquarters for Joint Investigations
of the Violations of the Antimonopoly Legislation in the CIS Countries.
 Headquarter contributes to deeper economic integration and elimination of
barriers to the movement of goods and services in the CIS Economic Area.
 In the EU joint monitoring or investigations are more difficult to
manage. There is no Joint Headquarter.
 Outlook on the Future:
A Body that coordinates investigations in cases transgressing
organisations (e.g. ICAP and EU Commission) and national
borders and which is competent for imposing fines.
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Dr. Theodor Thanner
Director General
Austrian Federal Competition Authority
Bundeswettbewerbsbehörde
A-1030 Vienna, Radetzkystraße 2
Tel.: 0043 (01) 245 08-0
Fax: 0043 (01) 587 42 00
http://www.bwb.gv.at
https://twitter.com/BWB_WETTBEWERB
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