1. Information Sharing Mini Plenary 4 Mongezi Menye
Competition Commission of South Africa
ICN Cartel Workshop – Panama City 2012

2. Index No. Items Page 1 Overview 3 2 Relevant Statutory Provisions 4 3
South African Perspective 5 4
Information Exchange Examples 6 5
Information Exchange Challenges 7 6
Ways to Overcome the Challenges 8 7
Hypothetical Case
9 - 10

3. 1. Overview
The importance of information exchange amongst competition agencies has been highlighted recently with more and more agencies formalising the co-operation through international agreements with their counterparts.
Closer to South Africa, the need for co-operation has been reflected in the 2002 Southern African Customs Union (SACU) Agreement, the 2004 COMESA Competition Regulations and the 2009 Southern African Development Community (SADC) Declaration on Regional Co-operation in Competition and Consumer Policies.
The aforementioned initiatives were premised on the recognition that there was a need for increasing co-operation and sharing of information in tackling cross-border anti-competitive practices.

4. 2. Relevant Statutory Provisions
The South African Competition Act no. 98 of 1998 applies to all the economic activity within, or having an effect within the Republic.
Section 45 (1) of the Act provides that a person who seeks access to information that is subject to a claim that it is confidential information may apply to the Competition Tribunal to access that information.
Section 82 (4) of the Act provides that the President may assign to the Competition Commission any duty of the Republic, in terms of an international agreement relating to the purpose of the Competition Act, to exchange information with the similar foreign agency.

5. Non-Competition Specific
3. South African Perspective
SADC
SACU
COMESA
None (Bilateral and multilateral Agreements)
MLATs
Fair Trade Agreements
Section 45 (1)
Section 82 (4)
National Law
Non-Competition Specific
Regional Instruments
Competition Specific

6. 4. Information Exchange Examples
Shipping Lines Investigation 2012: Assisted by EU about Multi Carrier Agreements information in the shipping lines industry.
Cement Investigation : Travelled to Europe (European Commission and German Bunderskatellampt) to obtain relevant information about cartels in the Cement industry.
Raids in Mauritius 2012: Seconded a person to assist the Competition Commission of Mauritius with raids.
Training 2011: Received training from the US Department of Justice about cartel investigations.

7. 5. Information Exchange Challenges
Complex Time/Resource consuming procedures
Different types of co-operation Instruments
Constraints in sharing confidential and privileged information
Differences in Competition legislation
Legal issues

8. 6. Ways to Overcome the Challenges
Harmonisation of Competition Policy;
Enactment of effective information sharing instruments;
A common definition of confidential information;
Willingness to share confidential information;
Removing inconsistencies across leniency policies;
Improve capacity and understanding; and
Improvement in Regulatory maturity.

9. 7. Hypothetical Case
INFORMATION THAT CAN BE SHARED WITH OTHER AGENCIES
Any information which has already been published or otherwise made public;
The progress of the investigation;
Whether or not the immunity/amnesty application has been received;
Whether or not immunity/amnesty has been granted;
The methods applied with respect to the setting of fines and other penalties; and
The likely timing of any step to be taken in the investigation.

10. 8. Hypothetical Case continues……
INFORMATION THAT CAN NOT BE SHARED WITH OTHER AGENCIES
The identities of the companies/ individuals under investigation;
The identity of any immunity/amnesty applicant;
The contents of any immunity/amnesty application;
Evidence obtained using investigatory powers; and
Information about specific pieces of evidence obtained.
CONDITIONS OF INFORMATION EXCHANGE
That the information should not be divulged outside the receiving agency; and
That the information cannot be used for any other purpose other that a cartel investigation in a specific sector.

11. Thank you Mongezi Menye Competition Commission of South Africa
ICN Cartel Workshop – Panama City 2012