Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun...
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![Page 1: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/1.jpg)
Enforcement of Transnational Competition Law
Between fiction and reality?
Sunjida Devi Bundhun
InvestigatorCompetition Commission22nd November 2013
![Page 2: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/2.jpg)
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
![Page 3: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/3.jpg)
ICL and the
Globalisation
Phenomenon
Highly integrated Economies: Trade and Commerce
Exclusive Territorial
Jurisdiction
Multilateral ‘Jurisdictionalis
m’
Collision of National
Interests / Fragmented Enforcement
Introduction…
![Page 4: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/4.jpg)
Wave of Transnational Mergers: 80% involved US and EU firms
Mega-mergers in overseas telecommunications and financial
services industries1998: Travelers-Citicorp,
WorldCom/MCI, NationsBank/BankAmerica, etc1999: 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
statutesToday : 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
Introduction
Transnational Competition Law: Definition?
![Page 5: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/5.jpg)
“(…) 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 CLsExtraterritorial application of
competition law: inevitable and mandatory
Existing instruments for cooperation are
inadequate
The Rationale of a Transnational Competition Law
![Page 6: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/6.jpg)
Diff
eri
ng
Nati
on
al
Com
peti
tion
Law
s
Substantive content Remedies
Du
plicati
on
of
Resou
rces Conflicting
DecisionsFamous/Infamous Boeing / McDonnell Douglas Merger
Incre
asin
g W
elf
are
of
all c
ou
ntr
ies Local
consumers
Local producers
Export Promotion
Cooperation in Competition Law: The Interests of States
MUSHROOMING OF NATIONAL CLS: TWO PRINCIPAL ENFORCERS OF CROSS-BORDER COMPETITION LAWS
![Page 7: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/7.jpg)
Mature Competition Regime
Transnational Application
- Individual Competition Laws in Member States- 1+28 Competition Authorities- Common EU Competition Law Art. 101 & 102 TFEU Merger Regulations
Transnational Competition Law: The EU Model
![Page 8: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/8.jpg)
National CL Infringement
Exclusive jurisdiction for the relevant NCA
EU CL Infringement
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 Policy2. 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 …
Who can Prosecute & Punish a Competition Law Infringement?
![Page 9: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/9.jpg)
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 mergersSingle 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
Enforcement of Competition Law in the EU
![Page 10: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/10.jpg)
Economic Integration within Africa
COMESA Region * Trade liberalisation and the elimination of TBTs and NBTs Elaborate
effective legal systems to boost and oversee increasingly competitive business activities in the regional market are required!
AFRICA: NO EXCEPTION!
![Page 11: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/11.jpg)
Harmonization of COMESA Competition Law Regime across participating countries ?
The regional Competition policy of COMESA
![Page 12: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/12.jpg)
The COMESA Competition Regulations …
CCR
![Page 13: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/13.jpg)
Restrictive business
practices CCR v/s
Competition Act 2007
Abuse of dominant positionCCR v/s
Competition Act
Mergers & Acquisition
CCR v/s Competition Act
The COMESA Competition Regulations
![Page 14: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/14.jpg)
COMESA Competition Commission established under Article 6 CCR
Article 7 (2) CCR: “monitor and investigate anti-competitive practices of undertakings within the Common Market, and mediate disputes between Member States concerning anti-competitive conduct”
Enforcement of the COMESA Competition Regulations
![Page 15: Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22 nd November 2013.](https://reader036.fdocuments.in/reader036/viewer/2022062717/56649e375503460f94b274d9/html5/thumbnails/15.jpg)
Next Steps
Thank you for your attention….
Effective
Competition
Enforcement ≈
International
Character
Necessity of ICL
*Increasing
Economic
Liberalisation
* Fresh
Incentives for
AC behaviour of
MNCs