Enforcement of Transnational Competition Law Between fiction and reality?

Sunjida Devi Bundhun Investigator

Competition Commission 22 nd 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

Introduction…

ICL and the Globalisation Phenomenon Collision of National Interests / Fragmented Enforcement Highly integrated Economies: Trade and Commerce Multilateral ‘Jurisdictionalism’ Exclusive Territorial Jurisdiction

Introduction

Wave of Transnational Mergers: 80% involved US and EU firms Mega-mergers in overseas telecommunications and financial services industries 1998: Travelers-Citicorp, WorldCom/MCI, NationsBank/BankAmerica, etc 1999: 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 statutes Today : 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

The Rationale of a Transnational Competition Law

“(…) 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 CLs Extraterritorial application of competition law: inevitable and mandatory Existing instruments for cooperation are inadequate

Cooperation in Competition Law: The Interests of States

Substantive content Remedies Conflicting Decisions Famous/Infamous Boeing / McDonnell Douglas Merger Local consumers Local producers Export Promotion

Transnational Competition Law: The EU Model

Enforcement of Competition Law in the EU …

National CL Infringement EU CL Infringement

Exclusive jurisdiction for the relevant NCA 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 Policy 2. 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

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 mergers Single 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

Economic Integration within Africa

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

The regional Competition policy of COMESA

The COMESA Competition Regulations

…

Coverage of all basic anti competitive practices and conducts Scope of Application CCR Consumer Protection Provisions

The COMESA Competition Regulations

Enforcement of the COMESA Competition Regulations

Next Steps

Thank you for your attention….