Author: Luis Blanquez
The U.S. Department of Justice recently published that the International Competition Network (“ICN”) has approved the Framework on Competition Agency Procedures (“CAP”), for antitrust enforcement agencies around the world to promote fundamental due process principles in competition law investigations and enforcement. This is an opt-in framework, based on the U.S. Antitrust Division’s initial Multilateral Framework on Procedures proposed at the last Council of Foreign Relations in June 2018. On May 1, 2019, the CAP will be open for signature to all competition agencies around the world, including ICN member and non-member agencies. It will come into effect on May 15, 2019, at the up-coming 2019 ICN annual conference in Cartagena, Colombia.
For those of you that may be unfamiliar with the International Competition Network, it is a group that allows antitrust and competition officials from around the world to coordinate and share best practices (which is somewhat ironic). They hold conferences and produce a substantial amount of substantive material that is quite good. Non-governmental members can also participate. Indeed, several years ago, Jarod Bona co-authored a chapter about exclusive dealing for the Unilateral Conduct Workbook.
Competition Agency Procedures Participation
Participants in the CAP will include all competition agencies entrusted with the enforcement of competition laws, whether or not they are ICN members. Participants will join the CAP by submitting a registration form to the co-chairs.
Agencies entrusted with the enforcement of competition laws around the world that do not meet the definition of participant will also be able to participate in the CAP by submitting a special side letter declaring adherence to the principles and participation in the cooperation and review processes. An important question is whether China will participate.
The CAP will be co-chaired by three participants (“Co-chairs”) confirmed by consensus of the participants for three-year terms.
Principles on Due Process and Procedural Fairness
The CAP outlines a list of fundamental principles on due process in antitrust enforcement procedures.
First, with regard to non-discrimination, each participant will ensure that its investigations and enforcement policies afford persons of another jurisdiction treatment no less favorable than persons of its jurisdiction in like circumstances.
Transparency and predictability are also part of the fundamental principles, making sure all competition laws and regulations applicable to investigations and enforcement proceedings are publicly available. Each participant is also encouraged to have publicly available guidance, clarifying or explaining its investigations and enforcement proceedings.
During the investigative process, participants will also: (i) provide proper notice to any person subject to an investigation, including the legal basis and conduct for such investigation, (ii) provide reasonable opportunities for meaningful and timely engagement, and (iii) focus any investigative requests on information they deem relevant to the competition issues under review as part of the investigation.
Other principles outlined in the CAP are as follows: timely resolution of proceedings–taking into account the nature and complexity of the case; confidentiality protections; avoidance of conflict of interests; opportunity for an adequate defense, including the opportunity to be heard and to present, respond to, and challenge evidence; representation by legal counsel and privilege; written enforcement decisions including the findings of fact and conclusions of law on which they are based, together with any remedies or sanctions; and the availability for independent review of enforcement decisions by an adjudicative body (court, tribunal or appellate body).
The CAP includes a cooperation process between participants to implement the framework.
Participants will be able to request among each other a dialogue regarding any issue of competition law procedure that is material to the CAP. Such dialogue, however, will only be undertaken for matters falling within the responsibility of the requested participant, although participants will also be allowed to raise broader issues for information purposes.
Following the original proposal from the U.S. Department of Justice, the CAP complements these substantive principles and cooperation process with some review mechanisms designed to ensure meaningful compliance.
For instance, participants will publish or submit to the co-chairs, no later than six months from adherence to the CAP, a template with information about its competition law investigation and enforcement procedures.
Other review mechanisms will include periodic consultations and dedicated sessions, at least every four years, at the ICN Annual Conference to review the implementation and functioning of the CAP.
We applaud and welcome this final step from competition authorities around the world to promote and harmonize fundamental due process principles in competition law investigations and enforcement procedures. This is a significant achievement for the antitrust and competition community in general and for private international companies in particular, making sure they will receive fair and consistent treatment worldwide by antitrust enforcers.