Transcript Mongezi Menye

Information Sharing
Mini Plenary 4
Mongezi Menye
Competition Commission of South Africa
ICN Cartel Workshop – Panama City 2012
1
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
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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.
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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.
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3. South African Perspective
• Section 45 (1)
• Section 82 (4)
• None
(Bilateral and
multilateral
Agreements)
• MLATs
• Fair Trade
Agreements
National
Law
NonCompetition
Specific
Competition
Specific
Regional
Instruments
• SADC
• SACU
• COMESA
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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.
6
5. Information Exchange Challenges
7
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.
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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.
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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.
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Thank you
Mongezi Menye
Competition Commission of South Africa
ICN Cartel Workshop – Panama City 2012
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