The multi-jurisdictional effects of anti-competitive conduct and mergers has necessitated global co-operation amongst competition authorities, mainly to avoid divergent outcomes and jurisdictional conflicts.
With regard to an exchange of information, explicit provisions are included in bilateral co-operation agreements that have undoubtedly contributed to case resolution. For instance, in an investigation relating to heat stabilisers and impact modifiers, surprise inspections were carried out simultaneously by the European Commission, the US Department of Justice, the Japan Fair Trade Commission and the Canadian Competition Bureau.
However, the exchange of confidential information is not permitted under co-operation agreements unless the companies under investigation grant waivers. The investigation into fine art auction houses is a rare case where the parties did grant waivers. In this instance, even the transcripts of the cross-examinations at the US Court proceedings were transmitted.
Although the Commission encourages exchange of confidential information among competition authorities for the purpose of more effective enforcement, it is opposed to disclosure of its investigation files under the US discovery rules. It considers that this would undermine the effectiveness of the leniency programme. US courts appear to agree with the Commission.
Key Point to Note
In respect of access to Commission files in EU Member States, the Court of Justice of the European Union (CJEU) ruled that “[i]t is…for Member States to establish and apply national rules on the right of access…to documents relating to leniency procedures”. This may lead to different standards of disclosure in different Member States, eventually impeding the exchange of information between the Commission and the national competition authorities.