Enforcement of Transnational Competition Law Between fiction and reality? Sunjida Devi Bundhun Investigator Competition Commission 22nd 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 Multilateral ‘Jurisdictionalism’ Highly integrated Economies: Trade and Commerce 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 Remedies Conflicting Decisions Famous/Infamous Boeing / McDonnell Douglas Merger Increasing Welfare of all countries Substantive content Duplication of Resources Differing National Competition Laws Cooperation in Competition Law: The Interests of States 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 anticompetitive practices and conducts CCR Scope of Application Consumer Protection Provisions The COMESA Competition Regulations Enforcement of the COMESA Competition Regulations Next Steps Thank you for your attention….