On 21 November 2013, the European Commission signed a Memorandum of Understanding (“MoU“) with the Competition Commission of India. A copy has just been published on the European Commission’s website.

The aim of the MoU is to further strengthen cooperation between the two parties in the area of antitrust enforcement.

This MoU forms part of a wider and ever increasing web of international agreements between antitrust authorities. India already has in place a MoU with the US Department of Justice (DoJ) and the Federal Trade Commission (FTC). The EU has concluded bilateral cooperation agreements/ MoUs on antitrust matters with an extensive list of countries, including China (see Hogan Lovells alert here), US, Canada, Japan, India, South Korea, and Switzerland.

Key provisions of the MoU are as follows:

  • Exchange of information. Both parties acknowledge that it will be in “their mutual interest” to exchange non-confidential information with regard to competition policy, operational issues, multilateral competition initiatives (such as interaction with the ICN and OECD), competition advocacy, and technical cooperation activities.
  • Coordination of enforcement activities. The MoU states that: “Should the Sides pursue enforcement activities concerning the same or related cases they will endeavour to coordinate their enforcement activities, where this is possible“.
  • Mutual assistance. There are a number of provisions which deal with the possibility to request the other party to take enforcement action in its jurisdiction. These are as follows:

6. If one of the Sides believes that anti-competitive actions carried out on the territory of the other Side adversely affect competition on the territory of the first Side, it may request that the other Side initiates appropriate enforcement activities as per their applicable competition law.

7. The requested Side will consider the possibility of initiating enforcement activities or expanding on-going enforcement activities with respect to the anti-competitive actions, identified by the requesting Side, in accordance with the requirements of its legislation and will inform the other Side about the results of such consideration.

8. Nothing in this Memorandum of Understanding will limit the discretion of the requested Side to decide whether to undertake enforcement activities with respect to the anti-competitive actions identified in the request, or will preclude the requesting Side from withdrawing its request.

  • Avoidance of conflicts. The MoU provides a mechanism to avoid conflicts if one authority’s enforcement activity may affect the other in its own enforcement activity.

It is too early to tell how the key clauses of the MoU will be applied in practice and whether it will be a “game changer”. However, the MoU certainly signals a clear intent for increased cooperation on antitrust matters between the EU and India.

With increasing cooperation and coordination between antitrust authorities worldwide now a reality, the risk of cartel detection has never been higher.