1. “International Cooperation in Cartels Investigation”
Vedomosti Business Daily Competition Conference
Brussels
16th December 2016
Dr. Theodor Thanner Director General
Bedanken für Einladung
Handel, insb Lebensmittelhandel, immer wieder einer Schwerpunkte Tätigkeit
BWB

2. Overview Austrian Competition Authority
Enforcement of Competition Law – a Global Issue
Goals of Cooperation
Ways of Cooperation
European Competition Network – ECN
Examples of Informal Regional Networks
Other Examples of Regional Cooperation
Possible next Steps

3. I. Austrian Competition Authority
~100
dawn raids in the last 5 years
27 Case handlers
since 2002 independent monocratically organised
2,84 Mio €
Budget (2015)
total fines ~ 193 Mio €
in 2015: 34,8 Mio €
Head: Director General Dr. Theodor Thanner
Organisational structure: sectors
Reporting obligation to the Parliament

4. 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

5. 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

6. IV. Ways of Cooperation Formal Cooperation → needs a legal basis
Coordination of enforcement activities: → needs a legal basis: e.g. Reg 1/2003; coordinated dawn raids to avoid destruction of evidence.
Information Exchange: For the exchange of confidential information→ needs a legal basis: e.g. Reg 1/2003 or obtain a waiver from the parties.
Cooperation in enforcement: → needs a legal basis: e.g. Reg 1/2003; FCA conducted dawn raids for German BKA in the fire brigade case.

7. IV. Ways of Cooperation Informal Cooperation
Exchange of non confidential information: bilateral update on recent developments e.g. existence of investigation, theories of harm, market analysis, industry background.
Memoranda of understanding: FCA with FAS, Swiss Authority, Serbian Authority etc.
Technical Assistance: Twinning (FCA in Moldova), study visits, workshops.
Exchange of views: bilateral meetings, Vienna Competition Conference 2010, 2nd China-Europe Legal Forum 2014, Competition Conference - Best Practices in Investigations, Vienna 2014.

8. V. European Competition Network - ECN

9. 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.

10. 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).

11. 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.

12. 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 anti-consumer.
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.

13. V. European Competition Network – ECN (VI)

14. 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 cross-border issues of common concern.
Exchange of Information; best practices; know-how flow.
Defining common positions.
Merger Information Exchange Platform.

15. 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.

16. 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

17. 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.

18. Thank you for your Attention!
Dr. Theodor Thanner
Director General
Austrian Federal Competition Authority Bundeswettbewerbsbehörde A-1030 Vienna, Radetzkystraße 2 Tel.: 0043 (01) Fax: 0043 (01)