Barbara Schulze Bundeskartellamt International Competition Matters ICN Cartel Workshop Cape Town...
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Transcript of Barbara Schulze Bundeskartellamt International Competition Matters ICN Cartel Workshop Cape Town...
Barbara SchulzeBundeskartellamt
International Competition Matters
ICN Cartel Workshop Cape Town
Mini Plenary IV – Information Sharing: Barriers, Waives and Challenges,
Cape Town, 17 October 2013
17 October 2013
Overview
I. Cooperation and information sharing is a bilateral exercise - Knowing each other is key.
II. Legal frameworks – barriers to information sharing
III. Ways to overcome these barriers
IV. Challenges to cooperation
V. Case example: The Mills Case (DE, F, NL)
VI. Informal exchange of information
17 October 2013
I.1 Who am “I” - The Bundeskartellamt
Institutional design
President, Vice-President General Policy Division, International Unit
Litigation Department, Specialised Unit
12 Decision Divisions (3 specialized on cartels) Independent bodies, decisions taken by Head of division + 2
Rapporteurs by majority vote (court like structure)
Bundeskartellamt budget: € 25 Mio.
Around 320 employees (140 legal experts/economists)
17 October 2013
The Bundeskartellamt - Organisation
17 October 2013
Art. 101 and 102 TFEU, EU-Regulations and Guidelines
Act against Restraints of Competition
(enacted1958, 8th Amendment of 30 June, 2013)
Administrative regulations of the Bundeskartellamt
i.e. leniency programme, guidelines on the setting of fines
Administrative Offences Act
Code of Criminal Procedure
The Bundeskartellamt’s legal framework
CARTEL CASES 2012:
Number of leniency applications: 51
Number of dawn raids: 8
+ 5 for the European Commission
+ 1 for competition agencies of other EU Member States
Number of cartel cases closed: 21
Total fines: € 316 million
BKArtA-Enforcement Activities - Cartels
17 October 2013
Recent cases – recent experience
Price fixing of coffee roasters: working group of directors and sales managers of different coffee roasters coordinated price increases for roasted coffee in the out-of-house market (supply of gastronomy, hotels, …)
Agreements on quotas for fire engines: companies' sales managers of two producers of fire engines with turntable ladders (combined market share of nearly 100%) divided tenders among each other on the basis of project lists to divide the market up in a ratio of 50/50
Territorial agreements between liquefied gas suppliers: suppliers agreed not to poach customers from one another. Customers wishing to switch supplier were either not quoted a price, or if at all, an excessive “deterrent price”.
Enforcement Activities - Cartels
17 October 2013
17 October 2013
NATIONAL:
Regional Cartel Authorities (16 “Länder”)
Ministry of Economics (not in cartel cases)
EUROPE:
European Commission
European Competition Network (ECN)
I.2 Who is the other?- Cooperation with other agencies (1)
INTERNATIONAL:
International Competition Network (ICN)
Organisation for Economic Cooperation and Development
(OECD)
United Nations Conference on Trade and Development
(UNCTAD)
Bilateral cooperation – special: USA, Switzerland
Cooperation with other agencies (2)
17 October 2013
Legal barriers Confidentiality Professional secrecy Data protection Other
Factual barriers Different legal systems and cultures Language barriers Resources (you just cannot do it)
II. Barriers to information sharing
17 October 2013
ECN Information exchange for network purposes Information exchange for use in evidence
National information gateways Available in several countries Germany: Sec. 50 b ARC
Bilateral Treaties Gemany-USA; EU-Switzerland
Waivers
III. Overcoming the barriers
17 October 2013
Legal – even within the ECN remaining uncertainties about certain grey zones (eg do double standards apply or those of transmitting agency)
Personal – resources, languages, time zones, different instutional set-up, mutal trust, in particular in view of past experience,
Factual – effects of cooperation or non-cooperation on strategies of leniency applications and defendants
IV. Challenges
17 October 2013
Cartel proceedings in DE, FR and NL against the milling industry – common legal framework on substance, but national procedures.
Leniency applications in each country, coordination of course of investigation, in particular the setting of fines.
But: difficulties to coordinate timing in view of national constraints and different institutional organisation.
Fined behaviour different in each country, no ibis in idem but:
Financial limitations of defendants, inability to pay.
V. Case Example: the mills case
17 October 2013
Informal exchanges can get already help Keeping in mind that definition of confidential might differ
OECD started work on definitions – asked members to provide information on their legal framework
Exchange views on theories of harm, share publicly available information on cases, markets, else
Provide information on timing Limitations
VI. Informal information exchange
17 October 2013
Thank you!
For further information:
http://www.bundeskartellamt.de/wEnglisch/index.php
http://www.bundeskartellamt.de/wDeutsch/download/pdf/Merkblaetter/Merkblaetter_englisch/ICN_Anti-Cartel_Enforcement_Template_2013.pdf
Barbara SchulzeHead of UnitInternational Competition MattersBundeskartellamtKaiser-Friedrich-Str. 16D-53113 BonnTel: +49 (0) 228 / 94 99 - 240 Fax: +49 (0) 228 / 94 99 - 144E-Mail: [email protected]: www.bundeskartellamt.de