Enforcement of Transnational Competition Law

Between fiction and reality?

Sunjida Devi Bundhun

InvestigatorCompetition Commission22nd November 2013

The Highlights…Introduction: International Competition Law (ICL) in a Globalised World

The Rationale for a Transnational Competition Law

Cooperation on Competition Law: The Interests of States

Transnational Competition Law: The EU Model

Economic Integration within Africa

The Regional Competition Policy of COMESA

Enforcement of the COMESA Competition Regulations

Concluding Remarks

ICL and the

Globalisation

Phenomenon

Highly integrated Economies: Trade and Commerce

Exclusive Territorial

Jurisdiction

Multilateral ‘Jurisdictionalis

m’

Collision of National

Interests / Fragmented Enforcement

Introduction…

Wave of Transnational Mergers: 80% involved US and EU firms

Mega-mergers in overseas telecommunications and financial

services industries1998: Travelers-Citicorp,

WorldCom/MCI, NationsBank/BankAmerica, etc1999: Vodafone/Mannesmann,

Sprint/MCI WorldCom, Olivetti/Telecom Italia

‘Mushrooming’ of national competition laws: 1980s/1990s :

significant growth in the number of countries adopting antitrust law

statutesToday : 100 countries currently

have antitrust rules in place, and the process has not ended yet.  E.g. 1 August , 2008, China's Anti-Monopoly Law ("AML") entered into

force

Introduction

Transnational Competition Law: Definition?

“(…) in anti-trust matters the policy of one state may be to defend what it is the policy of another

state to attack”.Lord Wilberforce

Cross Border Arrangements:Circumvent / Exploit Differences

between domestic CLsExtraterritorial application of

competition law: inevitable and mandatory

Existing instruments for cooperation are

inadequate

The Rationale of a Transnational Competition Law

Diff

eri

ng

Nati

on

al

Com

peti

tion

Law

s

Substantive content Remedies

Du

plicati

on

of

Resou

rces Conflicting

DecisionsFamous/Infamous Boeing / McDonnell Douglas Merger

Incre

asin

g W

elf

are

of

all c

ou

ntr

ies Local

consumers

Local producers

Export Promotion

Cooperation in Competition Law: The Interests of States

MUSHROOMING OF NATIONAL CLS: TWO PRINCIPAL ENFORCERS OF CROSS-BORDER COMPETITION LAWS

Mature Competition Regime

Transnational Application

- Individual Competition Laws in Member States- 1+28 Competition Authorities- Common EU Competition Law Art. 101 & 102 TFEU Merger Regulations

Transnational Competition Law: The EU Model

National CL Infringement

Exclusive jurisdiction for the relevant NCA

EU CL Infringement

Both the European Commission and any NCA whose territory has been affected can prosecute and punish

Simplification / Avoidance of contradictory Rulings

1. Potential INV by several states: Best placed in charge Policy2. European Commission decides to formally open a case: NCAs are discharged of the same case if they were investigating at their level

Enforcement of Competition Law in the EU …

Who can Prosecute & Punish a Competition Law Infringement?

Merger Control in the EU

Concentrations having an EU dimension (Article 1 of the EC Merger Regulations) * Notification to EU which has exclusive jurisdiction to review * National merger regulations of the Member States do not apply to such mergersSingle notification to the Commission

The principle: No conflicting jurisdiction

Concentrations not having an EU dimension* National Merger Regulations applicable* Notification to relevant NCA depending on each national merger regulation

Enforcement of Competition Law in the EU

Economic Integration within Africa

COMESA Region * Trade liberalisation and the elimination of TBTs and NBTs Elaborate

effective legal systems to boost and oversee increasingly competitive business activities in the regional market are required!

AFRICA: NO EXCEPTION!

Harmonization of COMESA Competition Law Regime across participating countries ?

The regional Competition policy of COMESA

The COMESA Competition Regulations …

CCR

Restrictive business

practices CCR v/s

Competition Act 2007

Abuse of dominant positionCCR v/s

Competition Act

Mergers & Acquisition

CCR v/s Competition Act

The COMESA Competition Regulations

COMESA Competition Commission established under Article 6 CCR

Article 7 (2) CCR: “monitor and investigate anti-competitive practices of undertakings within the Common Market, and mediate disputes between Member States concerning anti-competitive conduct”

Enforcement of the COMESA Competition Regulations

Next Steps

Thank you for your attention….

Effective

Competition

Enforcement ≈

International

Character

Necessity of ICL

*Increasing

Economic

Liberalisation

* Fresh

Incentives for

AC behaviour of

MNCs