Barbara Schulze Bundeskartellamt 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, 8 th 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: 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

 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 : CN_Anti-Cartel_Enforcement_Template_2013.pdf Barbara Schulze Head of Unit International Competition Matters Bundeskartellamt Kaiser-Friedrich-Str. 16 D Bonn Tel: +49 (0) 228 / Fax: +49 (0) 228 / Internet: