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 | | From: | Edmund Fitzgerald | | Subject: | Concerning Effective Action Against Hard Core Cartels | | Date: | Mon, 17 Jan 2005 23:04:46 -0500 |
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 | Paul Martin Jr. or some of his business associates is likely to get busted.
From:
http://www.usdoj.gov/atr/public/international/docs/hard_core.htm
Organization for Economic Cooperation and Development
RECOMMENDATION OF THE COUNCIL
Concerning Effective Action Against Hard Core Cartels
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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 previous Council Recommendations' recognition that
"effective application of competition policy plays a vital role in promoting
world trade by ensuring dynamic national markets and encouraging the
lowering or reducing of entry barriers to imports" [C(86)65(Final)]; and
that "anticompetitive practices may constitute an obstacle to the
achievement of economic growth, trade expansion, and other economic goals of
Member countries" [C(95)130/FINAL];
Having regard to the Council Recommendation that exemptions from competition
laws should be no broader than necessary [C(79)155(Final)] and to the
agreement in the Communiqué of the May 1997 meeting of the Council at
Ministerial level to "work towards eliminating gaps in coverage of
competition law, unless evidence suggests that compelling public interests
cannot be served in better ways" [C/MIN(97)10];
Having regard to the Council's long-standing position that closer
co-operation is necessary to deal effectively with anticompetitive practices
in one country that affect other countries and harm international trade, and
its recommendation that when permitted by their laws and interests, Member
countries should co-ordinate investigations of mutual concern and should
comply with each other's requests to share information from their files and
to obtain and share information obtained from third parties
[C(95)130/FINAL];
Recognising that benefits have resulted from the ability of competition
authorities of some Member countries to share confidential investigatory
information with a foreign competition authority in cases of mutual
interest, pursuant to multilateral and bilateral treaties and agreements,
and considering that most competition authorities are currently not
authorised to share investigatory information with foreign competition
authorities;
Recognising also that co-operation through the sharing of confidential
information presupposes satisfactory protection against improper disclosure
or use of shared information and may require resolution of other issues,
including potential difficulties relating to differences in the territorial
scope of competition law and in the nature of sanctions for competition law
violations;
Considering that hard core cartels are the most egregious violations of
competition law and that they injure consumers in many countries by raising
prices and restricting supply, thus making goods and services completely
unavailable to some purchasers and unnecessarily expensive for others; and
Considering that effective action against hard core cartels is particularly
important from an international perspective -- because their distortion of
world trade creates market power, waste, and inefficiency in countries whose
markets would otherwise be competitive -- and particularly dependent upon
co-operation -- because they generally operate in secret, and relevant
evidence may be located in many different countries;
I. RECOMMENDS
as follows to Governments of Member countries:
CONVERGENCE AND EFFECTIVENESS OF LAWS PROHIBITING HARD CORE CARTELS
Member countries should ensure that their competition laws effectively halt
and deter hard core cartels. In particular, their laws should provide for:
effective sanctions, of a kind and at a level adequate to deter firms and
individuals from participating in such cartels; and
enforcement procedures and institutions with powers adequate to detect and
remedy hard core cartels, including powers to obtain documents and
information and to impose penalties for non-compliance.
For purposes of this Recommendation:
a "hard core cartel" is an anticompetitive agreement, anticompetitive
concerted practice, or anticompetitive arrangement by competitors to fix
prices, make rigged bids (collusive tenders), establish output restrictions
or quotas, or share or divide markets by allocating customers, suppliers,
territories, or lines of commerce;
the hard core cartel category does not include agreements, concerted
practices, or arrangements that
are reasonably related to the lawful realisation of cost-reducing or
output-enhancing efficiencies,
are excluded directly or indirectly from the coverage of a Member country's
own laws, or
are authorised in accordance with those laws.
However, all exclusions and authorisations of what would otherwise be hard
core cartels should be transparent and should be reviewed periodically to
assess whether they are both necessary and no broader than necessary to
achieve their overriding policy objectives. After the issuance of this
Recommendation, Members should provide the Organisation annual notice of any
new or extended exclusion or category of authorisation.
INTERNATIONAL CO-OPERATION AND COMITY IN ENFORCING LAWS PROHIBITING HARD
CORE CARTELS
Member countries have a common interest in preventing hard core cartels and
should co-operate with each other in enforcing their laws against such
cartels. In this connection, they should seek ways in which co-operation
might be improved by positive comity principles applicable to requests that
another country remedy anticompetitive conduct that adversely affects both
countries, and should conduct their own enforcement activities in accordance
with principles of comity when they affect other countries' important
interests.
Co-operation between or among Member countries in dealing with hard core
cartels should take into account the following principles:
the common interest in preventing hard core cartels generally warrants
co-operation to the extent that such co-operation would be consistent with a
requested country's laws, regulations, and important interests;
to the extent consistent with their own laws, regulations, and important
interests, and subject to effective safeguards to protect commercially
sensitive and other confidential information, Member countries' mutual
interest in preventing hard core cartels warrants co-operation that might
include sharing documents and information in their possession with foreign
competition authorities and gathering documents and information on behalf of
foreign competition authorities on a voluntary basis and when necessary
through use of compulsory process;
a Member country may decline to comply with a request for assistance, or
limit or condition its co-operation on the ground that it considers
compliance with the request to be not in accordance with its laws or
regulations or to be inconsistent with its important interests or on any
other grounds, including its competition authority's resource constraints or
the absence of a mutual interest in the investigation or proceeding in
question;
Member countries should agree to engage in consultations over issues
relating to co-operation.
In order to establish a framework for their co-operation in dealing with
hard core cartels, Member countries are encouraged to consider entering into
bilateral or multilateral agreements or other instruments consistent with
these principles.
Member countries are encouraged to review all obstacles to their effective
co-operation in the enforcement of laws against hard core cartels and to
consider actions, including national legislation and/or bilateral or
multilateral agreements or other instruments, by which they could eliminate
or reduce those obstacles in a manner consistent with their important
interests.
The co-operation contemplated by this Recommendation is without prejudice to
any other co-operation that may occur in accordance with prior
Recommendations of the Council, pursuant to any applicable bilateral or
multilateral agreements to which Member countries may be parties, or
otherwise.
II. INSTRUCTS
the Competition Law and Policy Committee:
to maintain a record of such exclusions and authorisations as are notified
to the Organisation pursuant to Paragraph I A 2 b;
to serve, at the request of the Member countries involved, as a forum for
consultations on the application of the Recommendation; and
to review Member countries' experience in implementing this Recommendation
and report to the Council within two years on any further action needed to
improve co-operation in the enforcement of competition law prohibitions of
hard core cartels.
III. INVITES
non-Member countries to associate themselves with this Recommendation and to
implement it.
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