Revised Recommendation Of The Council Concerning Co Operation ...
Revised recommendation of the Council Concerning Co-
operation between Member countries on Anticompetitive
Practices affecting International Trade
1995
The OECD Council has adopted a number of non-binding Recommendations on
competition law and policy. In addition, the Competition Committee has adopted Best
Practices. OECD Recommendations and Best Practices are often catalysts for major
change by governments.
International co-operation between OECD countries on anticompetitive practices affecting international trade
has been in operation for more than 40 years based on a series of Council Recommendations which have
been elaborated and progressively refined by the Competition Committee.
The Council Recommendation has last been revised in 1995. The basic provisions of notification, exchange of
information, consultation and conciliation have been completed by an interpretative Appendix. It contains
guiding principles as to when and how to make use of the Recommendation and clarifies the principle of
confidentiality of information disclosed.
The 1995 Recommendation has proven to be an important instrument of international co-operation in the
enforcement of competition laws.
Recommendation of the OECD Council Concerning Effective Action against Hard Core Cartels (1998)
ORGANISATION FOR ECONOMIC
GENERAL DISTRIBUTION
CO-OPERATION AND DEVELOPMENT
Paris, drafted: 21-Sep-1995
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C(95)130/FINAL
COUNCIL
REVISED RECOMMENDATION OF THE COUNCIL
CONCERNING CO-OPERATION BETWEEN MEMBER COUNTRIES ON
ANTICOMPETITIVE PRACTICES AFFECTING INTERNATIONAL TRADE
(adopted by the Council at its 856th Session on 27 and 28 July 1995)
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C(95)130/FINAL
THE COUNCIL,
Having regard to Article 5 b) of the Convention on the Organisation for
Economic Co-operation and Development of 14th December 1960;
Having regard to the fact that international co-operation among OECD
countries in the control of anticompetitive practices affecting international
trade has long existed, based on successive Recommendations of the Council of
5th October 1967 [C(67)53(Final)], 3rd July 1973 [C(73)99(Final)],
25th September 1979 [C(79)154(Final)] and 21st May 1986 [C(86)44(Final)];
Having regard to the recommendations made in the study of transnational
mergers and merger control procedures prepared for the Committee on Competition
Law and Policy;
Recognising that anticompetitive practices may constitute an obstacle to
the achievement of economic growth, trade expansion and other economic goals of
Member countries;
Recognising that the continued growth in internationalisation of
business activities correspondingly increases the likelihood that
anticompetitive practices in one country or co-ordinated behaviour of firms
located in different countries may adversely affect the interests of Member
countries and also increases the number of transnational mergers that are
subject to the merger control laws of more than one Member country;
Recognising that the unilateral application of national legislation, in
cases where business operations in other countries are involved, raises
questions as to the respective spheres of sovereignty of the countries
concerned;
Recognising the need for Member countries to give effect to the
principles of international law and comity and to use moderation and
self-restraint in the interest of co-operation on the field of anticompetitive
practices;
Recognising that anticompetitive practices investigations and
proceedings by one Member country may, in certain cases, affect important
interests of other Member countries;
Considering therefore that Member countries should co-operate in the
implementation of their respective national legislation in order to combat the
harmful effects of anticompetitive practices;
Considering also that closer co-operation between Member countries is
needed to deal effectively with anticompetitive practices operated by
enterprises situated in Member countries when they affect the interests of one
or more other Member countries and have a harmful effect on international
trade;
Considering moreover that closer co-operation between Member countries
in the form of notification, exchange of information, co-ordination of action,
consultation and conciliation, on a fully voluntary basis, should be
encouraged, it being understood that such co-operation should not, in any way,
be construed to affect the legal positions of Member countries with regard to
questions of sovereignty, and in particular, the extra-territorial application
of laws concerning anticompetitive practices, as may arise;
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Recognising the desirability of setting forth procedures by which the
Competition Law and Policy Committee can act as a forum for exchanges of views,
consultations and conciliation on matters related to anticompetitive practices
affecting international trade;
Considering that if Member countries find it appropriate to enter into
bilateral arrangements for co-operation in the enforcement of national
competition laws, they should take into account the present Recommendation and
Guiding Principles:
I.
RECOMMENDS to Governments of Member countries that insofar as their
laws permit:
A.
NOTIFICATION, EXCHANGE OF INFORMATION AND CO-ORDINATION OF ACTION
1.
When a Member country undertakes under its competition laws an
investigation or proceeding which may affect important interests of
another Member country or countries, it should notify such Member
country or countries, if possible in advance, and, in any event, at
a time that would facilitate comments or consultations; such advance
notification would enable the proceeding Member country, while
retaining full freedom of ultimate decision, to take account of such
views as the other Member country may wish to express and of such
remedial action as the other Member country may find it feasible to
take under its own laws, to deal with the anticompetitive practices;
2.
Where two or more Member countries proceed against an
anticompetitive practice in international trade, they should
endeavour to co-ordinate their action insofar as appropriate and
practicable;
3.
Through consultations or otherwise, the Member countries should
co-operate in developing or applying mutually satisfactory and
beneficial measures for dealing with anticompetitive practices in
international trade. In this connection, they should supply each
other with such relevant information on anticompetitive practices as
their legitimate interests permit them to disclose; and should
allow, subject to appropriate safeguards, including those relating
to confidentiality, the disclosure of information to the competent
authorities of Member countries by the other parties concerned,
whether accomplished unilaterally or in the context of bilateral or
multilateral understandings, unless such co-operation or disclosure
would be contrary to significant national interests.
B.
CONSULTATION AND CONCILIATION
4. a)
A Member country which considers that an investigation or
proceeding being conducted by another Member country under its
competition laws may affect its important interests should
transmit its views on the matter to or request consultation with
the other Member country;
b)
Without prejudice to the continuation of its action under its
competition law and to its full freedom of ultimate decision the
Member country so addressed should give full and sympathetic
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consideration to the views expressed by the requesting country,
and in particular to any suggestions as to alternative means of
fulfilling the needs or objectives of the competition
investigation or proceeding;
5. a)
A Member country which considers that one or more enterprises
situated in one or more other Member countries are or have been
engaged in anticompetitive practices of whatever origin that are
substantially and adversely affecting its interests, may request
consultation with such other Member country or countries
recognising that entering into such consultations is without
prejudice to any action under its competition law and to the full
freedom of ultimate decision of the Member countries concerned;
b)
Any Member country so addressed should give full and sympathetic
consideration to such views and factual materials as may be
provided by the requesting country and, in particular, to the
nature of the anticompetitive practices in question, the
enterprises involved and the alleged harmful effects on the
interests of the requesting country;
c)
The Member country addressed which agrees that enterprises
situated in its territory are engaged in anticompetitive
practices harmful to the interests of the requesting country
should attempt to ensure that these enterprises take remedial
action, or should itself take whatever remedial action it
considers appropriate, including actions under its legislation on
anticompetitive practices or administrative measures, on a
voluntary basis and considering its legitimate interests;
6.
Without prejudice to any of their rights, the Member countries
involved in consultations under paragraphs 4 and 5 above should
endeavour to find a mutually acceptable solution in the light of the
respective interests involved;
7.
In the event of a satisfactory conclusion to the consultations under
paragraphs 4 and 5 above, the requesting country, in agreement with,
and in the form accepted by, the Member country or countries
addressed, should inform the Competition Law and Policy Committee of
the nature of the anticompetitive practices in question and of the
settlement reached;
8.
In the event that no satisfactory conclusion can be reached, the
Member countries concerned, if they so agree, should consider having
recourse to the good offices of the Competition Law and Policy
Committee with a view to conciliation. If the Member countries
concerned agree to the use of another means of settlement, they
should, if they consider it appropriate, inform the Committee of
such features of the settlement as they feel they can disclose.
II.
RECOMMENDS that Member countries take into account the guiding
principles set out in the Appendix to this Recommendation.
III.
INSTRUCTS the Competition Law and Policy Committee:
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1.
To examine periodically the progress made in the implementation of
the present Recommendation and to serve periodically or at the
request of a Member country as a forum for exchanges of views on
matters related to the Recommendation on the understanding that it
will not reach conclusions on the conduct of individual enterprises
or governments;
2.
To consider the reports submitted by Member countries in accordance
with paragraph 7 of Section I above;
3.
To consider the requests for conciliation submitted by Member
countries in accordance with paragraph 8 of Section I above and to
assist, by offering advice or by any other means, in the settlement
of the matter between the Member countries concerned;
4.
To report to the Council as appropriate on the application of the
present Recommendation.
IV.
DECIDES that this Recommendation and its Appendix cancel and replace the
Recommendation of the Council of 21st May 1986 [C(86)44(Final)].
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APPENDIX
GUIDING PRINCIPLES FOR NOTIFICATIONS, EXCHANGES OF INFORMATION,
CO-OPERATION IN INVESTIGATIONS AND PROCEEDINGS,
CONSULTATIONS AND CONCILIATION OF
ANTICOMPETITIVE PRACTICES AFFECTING INTERNATIONAL TRADE
Purpose
1.
The purpose of these principles is to clarify the procedures laid down
in the Recommendation and thereby to strengthen co-operation and to minimise
conflicts in the enforcement of competition laws. It is recognised that
implementation of the recommendations herein is fully subject to the national
laws of Member countries, as well as in all cases to the judgement of national
authorities that co-operation in a specific matter is consistent with the
Member country’s national interests. Member countries may wish to consider
appropriate legal measures, consistent with their national policies, to give
effect to this Recommendation in appropriate cases.
Definitions
2.
a) "Investigation or proceeding" means any official factual inquiry or
enforcement action authorised or undertaken by a competition
authority of a Member country pursuant to the competition laws of
that country. Excluded, however, are (i) the review of business
conduct or routine filings, in advance of a formal or informal
determination that the matter may be anticompetitive, or (ii)
research, studies or surveys the objective of which is to examine
the general economic situation or general conditions in specific
industries.
b) "Merger" means merger, acquisition, joint venture and any other form
of business amalgamation that falls within the scope and definitions
of the competition laws of a Member country governing business
concentrations or combinations.
Notification
3.
The circumstances in which a notification of an investigation or
proceeding should be made, as recommended in paragraph I.A.1. of the
Recommendation, include:
a)
When it is proposed that, through a written request, information
will be sought from the territory of another Member country or
countries;
b)
When it concerns a practice (other than a merger) carried out wholly
or in part in the territory of another Member country or countries,
whether the practice is purely private or whether it is believed to
be required, encouraged or approved by the government or governments
of another country or countries;
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c)
When the investigation or proceeding previously notified may
reasonably be expected to lead to a prosecution or other enforcement
action which may affect an important interest of another Member
country or countries;
d)
When it involves remedies that would require or prohibit behaviour
or conduct in the territory of another Member country;
e)
In the case of an investigation or proceeding involving a merger,
and in addition to the circumstances described elsewhere in this
paragraph, when a party directly involved in the merger, or an
enterprise controlling such a party, is incorporated or organised
under the laws of another Member country;
f)
In any other situation where the investigation or proceeding may
involve important interests of another Member country or countries.
Procedure for notifying
4.
a)
Under the Recommendation notification ordinarily should be .
provided at the first stage in an investigation or proceeding when
it becomes evident that notifiable circumstances described in
paragraph 3 are present. However, there may be cases where
notification at that stage could prejudice the investigative action
or proceeding. In such a case notification and, when requested,
consultation should take place as soon as possible and in sufficient
time to enable the views of the other Member country to be taken
into account. Before any formal legal or administrative action is
taken, the notifying country should ensure, to the fullest extent
possible in the circumstances, that it would not prejudice this
process.
b)
Notification of an investigation or proceeding should be made in
writing through the channels requested by each country as indicated
in a list to be established and periodically updated by the
Competition Law and Policy Committee.
c)
The content of the notification should be sufficiently detailed to
permit an initial evaluation by the notified country of the
likelihood of any effects on its national interests. It should
include, if possible, the names of the persons or enterprises
concerned, the activities under investigation, the character of the
investigation or procedure and the legal provisions concerned, and,
if applicable, the need to seek information from the territory of
another Member country. In the case of an investigation or
proceeding involving a merger, notification should also include:
i)
the fact of initiation of an investigation or proceeding;
ii)
the fact of termination of the investigation or proceeding,
with a description of any remedial action ordered or
voluntary steps undertaken by the parties;
iii)
a description of the issues of interest to the notifying
Member country, such as the relevant markets affected,
jurisdictional issues or remedial concerns;
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iv)
a statement of the time period within which the notifying
Member country either must act or is planning to act.
Co-ordination of Investigations
5.
The co-ordination of concurrent investigations, as recommended in
paragraph I.A.2. of the Recommendation, should be undertaken on a case-by-case
basis, where the relevant Member countries agree that it would be in their
interests to do so. This co-ordination process shall not, however, affect each
Member country’s right to take a decision independently based on the
investigation. Co-ordination might include any of the following steps,
consistent with the national laws of the countries involved:
a)
providing notice of applicable time periods and schedules for
decision-making;
b)
sharing factual and analytical information and material, subject to
national laws governing the confidentiality of information and the
principles relating to confidential information set forth in
paragraph 10;
c)
requesting, in appropriate circumstances, that the subjects of the
investigation voluntarily permit the co-operating countries to share
some or all of the information in their possession, to the extent
permitted by national laws;
d)
co-ordinating discussions or negotiations regarding remedial
actions, particularly when such remedies could require conduct or
behaviour in the territory of more than one Member country;
e)
in those Member countries in which advance notification of mergers
is required or permitted, requesting that the notification include a
statement identifying notifications also made or to be made to other
countries.
Assistance in an investigation or proceeding of a Member country
6.
Co-operation among Member countries by means of supplying information on
anticompetitive practices in response to a request from a Member country, as
recommended in paragraph I.A.3 of the Recommendation, should be undertaken on a
case-by-case basis, where it would be in the interests of the relevant Member
countries to do so. Co-operation might include any of the following steps,
consistent with the national laws of the countries involved:
a)
assisting in obtaining information on a voluntary basis from within
the assisting Member’s country;
b)
providing factual and analytical material from its files, subject to
national laws governing confidentiality of information and the
principles relating to confidential information set forth in
paragraph 10;
c)
employing on behalf of the requesting Member country its authority
to compel the production of information in the form of testimony or
documents, where the national law of the requested Member country
provides for such authority;
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d)
providing information in the public domain relating to the relevant
conduct or practice. To facilitate the exchange of such
information, Member countries should consider collecting and
maintaining data about the nature and sources of such public
information to which other Member countries could refer.
7.
When a Member country learns of an anticompetitive practice occurring in
the territory of another Member country that could violate the laws of the
latter, the former should consider informing the latter and providing as much
information as practicable, subject to national laws governing the
confidentiality of information and the principles relating to confidential
information set forth in paragraph 10, consistent with other applicable
national laws and its national interests.
8.
a)
Member countries should use moderation and self-restraint and take
into account the substantive laws and procedural rules in the
foreign forum when exercising their investigatory powers with a view
to obtaining information located abroad.
b)
Before seeking information located abroad, Member countries should
consider whether adequate information is conveniently available from
sources within their national territory.
c)
Any requests for information located abroad should be framed in
terms that are as specific as possible.
9.
The provision of assistance or co-operation between Member countries may
be subject to consultations regarding the sharing of costs of these activities.
Confidentiality
10.
The exchange of information under this Recommendation is subject to the
laws of participating Member countries governing the confidentiality of
information. A Member country may specify the protection that shall be
accorded the information to be provided and any limitations that may apply to
the use of such information. The requested Member country would be justified
in declining to supply information if the requesting Member country is unable
to observe those requests. A receiving Member country should take all
reasonable steps to ensure observance of the confidentiality and use
limitations specified by the sending Member country, and if a breach of
confidentiality or use limitation occurs, should notify the sending Member
country of the breach and take appropriate steps to remedy the effects of the
breach.
Consultations between Member countries
11.
a)
The country notifying an investigation or proceeding should conduct
its investigation or proceeding, to the extent possible under legal
and practical time constraints, in a manner that would allow the
notified country to request informal consultations or to submit its
views on the investigation or proceeding.
b)
Requests for consultation under paragraphs I.B.4. and I.B.5. of the
Recommendation should be made as soon as possible after notification
and explanation of the national interests affected should be
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provided in sufficient detail to enable full consideration to be
given to them.
c)
The notified Member country should, where appropriate, consider
taking remedial action under its own legislation in response to a
notification.
d)
All countries involved in consultations should give full
consideration to the interests raised and to the views expressed
during the consultations so as to avoid or minimise possible
conflict.
Conciliation
12.
a)
If they agree to the use of the Committee’s good offices for the
purpose of conciliation in accordance with paragraph I.B.8. of the
Recommendation, Member countries should inform the Chairman of the
Committee and the Secretariat with a view to invoking conciliation.
b)
The Secretariat should continue to compile a list of persons willing
to act as conciliators.
c)
The procedure for conciliation should be determined by the Chairman
of the Committee in agreement with the Member countries concerned.
d)
Any conclusions drawn as a result of the conciliation are not
binding on the Member countries concerned and the proceeding of the
conciliation will be kept confidential unless the Member countries
concerned agree otherwise.
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