Barbara SchulzeBundeskartellamt

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, 8th 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: 8

+ 5 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

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:

http://www.bundeskartellamt.de/wEnglisch/index.php

http://www.bundeskartellamt.de/wDeutsch/download/pdf/Merkblaetter/Merkblaetter_englisch/ICN_Anti-Cartel_Enforcement_Template_2013.pdf

Barbara SchulzeHead of UnitInternational Competition MattersBundeskartellamtKaiser-Friedrich-Str. 16D-53113 BonnTel: +49 (0) 228 / 94 99 - 240 Fax: +49 (0) 228 / 94 99 - 144E-Mail: barbara.schulze@bundeskartellamt.bund.deInternet: www.bundeskartellamt.de