International Competition Network Conference Promotes Convergence Among Worlds Antitrust Enforcers

The International Competition Network (ICN) held its fourth annual conference in Bonn, Germany. The conference was the largest gathering ever of competition officials, with more than 400 representatives of 80 competition agencies and competition experts from international organizations and the legal, business, consumer, and academic communities. Founded in 2001 by 13 agencies, the ICN now includes almost every competition agency in the world. At the conclusion of the conference, members approved recommendations designed to improve their merger review processes, commended the success of ICN’s anti-cartel work, and showcased the significant progress member jurisdictions have made in implementing ICN recommendations. ICN members also approved a new work agenda that includes a working group on competition issues in telecommunications services, study of agency cooperation in anti-cartel enforcement, and merger investigation and analysis.

Federal Trade Commission Chairman Deborah Platt Majoras and R.Hewitt Pate, Assistant Attorney General in charge of the Department of Justice’s Antitrust Division, participated in the conference, which took place from June 6-8, 2005.

Chairman Majoras urged the delegates to lead the fight to make markets work for the world’s consumers. “We all face challenges from those who want to restrain the dynamic force that is competition. Our agencies are responsible for the broader public interest in protecting competition. We must keep that focus, despite pressure from those who seek exceptional treatment,” Majoras said.

The conference showcased the recent work of four ICN working groups focused on: mergers, cartels, competition policy implementation, and antitrust enforcement in regulated sectors. In addition to discussing the issues raised in its ongoing work, the ICN established a new working group to study antitrust enforcement in the telecommunications sector.

A significant achievement at the conference was the adoption by members of two additional Recommended Practices for merger notification procedures. The recommendations build on the existing practices that are designed to improve competition agencies’ merger review processes and reduce unnecessary burdens on both agencies and merging parties. ICN members adopted new Recommended Practices on merger remedies and competition agency powers.

· Merger Remedies. Merger remedies should address the identified competitive harm arising from the proposed transaction. Merger review systems should provide a transparent framework for the discussion and adoption of remedies by providing merging parties with timely information on competitive concerns and ensuring that there is adequate time to evaluate suitable remedies. Remedies should be effective and easily administrable and not require significant administrative intervention by the agency. The terms of a remedy should ensure implementation, monitoring of compliance, and enforcement.

· Competition Agency Powers. Competition agencies should have the tools necessary for effective enforcement of applicable merger review laws, including appropriate investigative mechanisms by which the agency can require merging and third parties to produce relevant information, the ability to initiate enforcement actions against proposed mergers, and the ability to seek sanctions for non-compliance with applicable legal requirements and agency decisions and orders. Competition agencies should have sufficient staffing and expertise to discharge their enforcement responsibilities effectively and sufficient independence to ensure the objective application and enforcement of merger review laws.

In its initial year, the Cartel Working Group took a comprehensive look at institutional structures for detecting cartels, penalties for cartel conduct, and investigative techniques used in searches and raids. Additionally, anti-cartel enforcers from more than 35 jurisdictions gathered in Sydney, Australia, in November 2004 to compare enforcement techniques and attend the first ever gathering of antitrust officials devoted to the topic of leniency programs.

ICN members previously adopted eight Guiding Principles and 11 Recommended Practices. The Principles and Practices are non-binding and antitrust agencies are implementing them voluntarily, as appropriate. The Merger Working Group also developed a model form for agencies and parties to use for waivers of confidentiality in merger investigations and presented a report on the use of confidentiality waivers, a report on merger filing fees, and detailed papers focused on improving investigative techniques, merger guidelines, and remedies.

Continuing a commitment to promote implementation of ICN work product, one of the conference panels highlighted agencies’ progress in implementing ICN recommendations. The panel included a presentation by Maria Coppola of the FTC’s International Antitrust Division of the results of a detailed study by a task force of the Merger Working Group of ICN members’ implementation of the merger Recommended Practices. FTC Assistant Director for International Antitrust, Randolph Tritell, who chairs the Merger Notification and Procedures subgroup, noted the major progress in implementing the practices. “The continuing incorporation of the Recommended Practices into merger review systems shows how the ICN can provide a benchmark for international convergence and best practice,” Tritell said.

The Competition Policy Implementation Working Group addressed ICN initiatives to assist new antitrust agencies in developing economies. The group’s work presented at Bonn included reports on assessing successful technical assistance, competition advocacy efforts in regulated sectors, and consumer outreach programs.

In October 2001, the FTC and the Department of Justice joined with antitrust agencies from around the world to create the ICN. The ICN has two main goals: 1) to promote greater substantive and procedural convergence among antitrust authorities toward sound competition policies, and 2) to support new antitrust agencies both in enforcing their laws and in building strong competition cultures in their countries.

All ICN documents are available at www.internationalcompetitionnetwork.org.

The FTC’s Bureau of Competition seeks to prevent business practices that restrain competition. The Bureau carries out its mission by investigating alleged law violations and, when appropriate, recommending that the Commission take formal enforcement action. To notify the Bureau concerning particular business practices, call or write the Office of Policy and Evaluation, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580, Electronic Mail: antitrust@ftc.gov; Telephone (202) 326-3300. For more information on the laws that the Bureau enforces, the Commission has published Promoting Competition, Protecting Consumers: A Plain English Guide to Antitrust Laws, which can be accessed at http://www.ftc.gov/bc/compguide/index.htm.