Information Sharing

1. Information Sharing Mini Plenary 4 Antonio Capobianco OECD Competition Division ICN Cartel Workshop - Panama 2012

2. Speakers • Thula Kaira - Chief Executive and Secretary to the Commission Competition Authority of Botswana • Jaeho Moon, Director, International Cartel Division, Korea Fair Trade Commission • Mongezi Menye - Principal Investigator, Cartels Division, Competition Commission South Africa

3. Structure of the session • Introduction • Three speakers • Country experiences • An hypothetical case study • Open discussion

4. Information Sharing – When? • Pre-investigatory phase: before evidence-gathering takes place, agencies can co-operate regarding markets to be investigated, companies to be targeted, the location of evidence, and avoidance of destruction of evidence • Investigatory phase: when evidence is gathered and analysed, agencies may co-ordinate investigatory measures. This could include the organisation of simultaneous searches, raids or inspections, issuing of subpoenas or other requests for information, or interviewing of witnesses • Post-investigatory phase: it concerns prosecution, adjudication and sanctioning, agencies may exchange evidence and other information which they have obtained, and they may co-operate via general case discussions between the investigators.

5. Information Sharing – What? • Public information. This is information on the parties, the market or the business context which is in the public domain. • Agency information. This information is not necessarily in the public domain, but is generated within the agency itself, rather than provided by parties to the investigation (although it may be based on information supplied by the parties). E.g. on the stage which the investigation has reached, the planned timing of further steps, the provisional orientation of the investigation and conclusions reached. • Information from the parties already in the possession of one agency. This kind of material can be evidence of an infringement or background information on the market or the activities of the parties (such as turnover figures). The information may have been provided voluntarily or under compulsion.

6. Information Sharing – Constraints? • Practical constraints: • Language issues • Time and resources • Legal constraints on confidential information sharing • National provisions preventing the exchange of confidential information • No international rules • Lack of a common definition of “confidential information’

7. Information Sharing – Solutions? Some jurisdiction have tried to overcome the legal constraints. Here are some examples: • The US International Antitrust Enforcement Assistance Act • The UK overseas information “gateway” • Article 29 of the Canadian Competition Act • Second generation co-operation agreements (e.g. EU/Switzerland) • Regional solutions: the European Competition Network

8. OECD & ICN work • ICN Cartel Working Group Charts Summarizing Information Sharing Mechanisms • 2007 ICN Cartel Working Group paper, Co-operation Between Competition Agencies in Cartel Investigations • 2005 OECD Best Practices for the Formal Exchange of Information Between Competition Authorities in Hard Core Cartel Investigations • 2005 OECD Recommendation on Merger Review • 1995 OECD Recommendation on Co-operation between Member countries on Anticompetitive Practices affecting International Trade

9. Information Sharing Mini Plenary 4 Antonio Capobianco OECD Competition Division ICN Cartel Workshop - Panama 2012