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

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

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.

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.

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

4. Information Exchange Examples Shipping Lines Investigation 2012: Assisted by EU about Multi Carrier Agreements information in the shipping lines industry. Cement Investigation 2009 - 2010: 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.

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

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.

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.

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.

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