International Cooperation between competition agencies The ACCC perspective on cooperation with the NZCC 3 rd ASEAN-CER Integration Partnership Forum Cairns, 18 June 2013

Outline 1.Australias formal cooperation frameworks 2.Modes of cooperation between competition agencies –Using the ICN to identify and adopt best practice –Building capacity between our agencies –Facilitating informal cooperation –Formal arrangements between the NZCC and ACCC 3.Some lessons from the ACCC and NZCC experience

MechanismConfidential information exchange permitted? Bi or multilateral MOUsAgency Only Arrangements encouraging close economic relations Agency Only Legislation in place in multiple jurisdictions allowing cooperation Agency and Third Party, where an MLAT is in place Bi-lateral agreementAgency and Third Party, between the agreement parties Free Trade AgreementAgency Only National legislation permitting unilateral disclosure of evidence to counterparts Yes, to all counterparts at ACCC discretion Australias formal cooperation frameworks

ACCC NZCC cooperation Capacity building Informal Treaty and legislation Formal cooperation

Modes of cooperation Using the OECD and ICN to identify best practices OECD Competition Committee seeks to identify and recommend best practices in competition policy The International Competition Network's mission is to –advocate the adoption of superior standards and procedures in competition policy around the world, –formulate proposals for procedural and substantive convergence –seek to facilitate effective international cooperation to the benefit of member agencies, consumers and economies worldwide We are actively involved with the OECDs Competition Committee & ICN working groups We seek to implement OECD & ICN best practice

Modes of cooperation Cooperating to build effectiveness and capacity within our agencies The ACCC and NZCC regularly engage on: –Domestic law reforms –Agency policy reform, such as developing guidelines on our approaches to assessing mergers and cartel immunity policies –Encouraging compliance with competition laws –Engagement in other forums for cooperation

Modes of cooperation Informal cooperation on investigations Cooperation without a specific treaty, MOU or domestic legal instrument to permit the cooperation Sharing confidential information from third parties, requires their consent. We seek waivers from them. Sharing agency information, documents or evidence is possible but instigating evidence gathering on behalf of another agency is not.

Modes of cooperation Informal cooperation on investigations What does it achieve? –It helps to identify if a competition concern is likely to arise in your jurisdiction –It helps you constructively analyse your case theory –It helps you coordinate international investigations Some examples –Staff visits between agencies to understand common cases –Monthly meetings –Cooperation under waivers

Modes of cooperation Formal cooperation: sharing evidence Requires legal framework to balance the rights of individuals and private companies with effective regulation of competition laws Rare occurrence but can be crucial to preventing and punishing conduct which is economically harmful Examples include –Gathering evidence - Conducting compulsory document requests or executing search warrants for foreign agencies under Mutual Legal Assistance Treaties or similar treaties –Exchanging confidential information documents and evidence

Modes of cooperation Formal cooperation: sharing evidence Marine Hose Case Marine hose is rubber hose used at offshore moorings to transfer crude oil and gas products from production facilities to tankers. Cartel members controlled prices, engaged in bid rigging and allocating customers. The cartel ended in 2007 following dawn raids by the European Commission, JFTC, the UK OFT and the US DOJ.

Modes of cooperation Formal cooperation: sharing evidence Marine Hose Case Following a formal request, in early November 2008 the UK OFT Chairman provided documents to the ACCC including copies of s and witness statements, Released subject to strict confidentiality and other conditions. In 2009, the ACCC relied on some of the documents for Federal Court proceedings in which a total of $AUD8.24 million was ordered against cartel members who supplied marine hose to Australian oil and gas suppliers.

Some lessons learned? Our experience is that: Effective competition regulation is a driver of growth and productivity Effective regulation requires effective competition laws and the effective enforcement of those laws As business operates beyond national borders effective enforcement of competition laws is only achieved through cooperation between enforcement agencies

Some lessons learned? Effective cooperation between the NZCC and ACCC is driven by trust and by being pragmatic and flexible. –We have regular contact at operational, senior and Commissioner levels including cross appointments –Our relationship is underpinned by legal arrangements, but not driven by them, it has a pragmatic operational flavour. –We rely foremost on building understanding of our similarities and differences and best practice –We use informal mechanisms whenever possible. –Improving legal framework including legislation allowing information sharing and Trans Tasman enforcement will make enforcement cooperation even stronger over time.

Some lessons learned? We are always seeking to improve: –Difficulties we had in sharing information in some earlier cases may not arise now because of new formal arrangements. –Soft convergence is a key for building cooperation but it requires ongoing attention –a framework to regularly meet and engage at an operational level assists (eg we have regular cartel discussions) We each gain from cooperation bilaterally, regionally and globally – we do not exclude others

International Cooperation between competition agencies The ACCC perspective on cooperation with the NZCC 3 rd ASEAN-CER Integration Partnership Forum Cairns, 18 June 2013