Eyes in the back of its head
The ACCC, US Department of Justice, US Federal Trade Commission, UK Competition and Markets Authority, New Zealand Commerce Commission and Competition Bureau of Canada (together, Competition Authorities) have entered into a ‘Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities’ memorandum of understanding (Framework), effective 2 September 2020, in order to share intelligence, information, case theories and investigative techniques to better coordinate on cross-border investigations.
Cooperation between the ACCC and some of its overseas counterparts is not a new concept. The ACCC has, for example, existing cooperation agreements in place with competition agencies in the US, Canada and New Zealand, among other jurisdictions. Nevertheless, the international benefits of the Framework are likely to be significant, particularly in terms of bolstering a Competition Authority’s bundle of evidence in pursuing potential breaches of the cartel, other anti-competitive agreements, unilateral conduct and merger control laws that span multiple jurisdictions. As ACCC Chair Rod Sims noted:
“Working more deeply with the highly-experienced competition investigators in other countries, who are often dealing with the same companies or industries, will greatly assist in gathering evidence across borders.”
The Competition Authorities intend to review the Framework every five years.
Cooperation and assistance contemplated by the Framework
The Competition Authorities have entered into the Framework to further enhance and facilitate cooperation, recognising that (among other things):
- investigating matters increasingly requires engagement with counterpart competition authorities in other jurisdictions on issues that benefit from being considered in a broader, cross-border context; and
- the sharing of information among competition authorities requires relationships of trust and mutual understanding that are supported through informal cooperation and appropriate legal protections.
To this end, the Competition Authorities intend to, and are expected to, cooperate and provide assistance to each other, including by:
- exchanging information and experiences on matters of mutual interest;
- coordinating their investigative activities; and
- perhaps most notably, sharing:
- public information;
- information which a Competition Authority would normally treat as non-public (Agency Confidential Information); and
- non-public information related to an investigation that has been compulsorily acquired by or voluntarily provided to a Competition Authority, and which the Competition Authority is ordinarily required to protect from disclosure (Investigative Information), to the extent that such information is permitted to be disclosed by law or by waiver of confidentiality.
In addition to the cooperation contemplated above, the Competition Authorities have developed a ‘Model Agreement’ (Annexure A of the Framework) which may form the basis for negotiation of bilateral or multilateral agreements to pursue the maximum level of assistance and cooperation possible. The Framework recognises that not all Competition Authorities may be able to carry out all of the elements of enhanced cooperation envisaged under the Model Agreement.
The Model Agreement addresses a number of substantive matters which are detailed further below, including the maintenance of the confidentiality of any Investigative Information, and the scope of permitted use of any Investigative Information shared.
Obtaining Investigative Information at the request of a Competition Authority
The Model Agreement contemplates that the Competition Authorities will disclose, provide or discuss Investigative Information in the possession of a Competition Authority, as well as obtain Investigative Information at the request of a Competition Authority (including by way of searches and seizures). While the Competition Authorities can only implement the Model Agreement to the extent permissible under the laws of their respective jurisdictions, the degree of cooperation that is foreshadowed here is far-reaching.
Nevertheless, at least with respect to the treaty between the Australian and US Governments relating to mutual anti-trust enforcement assistance, this degree of assistance is already contemplated, and we have written previously on confidentiality waivers between regulators.
While the Model Agreement provides that the Competition Authorities will maintain confidentiality of and protect from disclosure any Investigative Information communicated and received, it does not prevent the disclosure of Investigative Information:
- to persons that are subject to an enforcement proceeding brought by a requesting Competition Authority if such disclosure is required by its law;
- to courts and tribunals in the course of a judicial or administrative proceeding; or
- when the requesting Competition Authority advises the responding Competition Authority it is required to do so under its law.
In the case of unauthorised disclosure or use of Investigative Information, the Model Agreement doesn’t (perhaps unsurprisingly) have any teeth. Upon discovery, this circumstance is to be reported by the requesting Competition Authority to the responding Competition Authority, and the Competition Authorities will consult on steps to minimise any harm resulting from such disclosure or use, and to ensure that it doesn’t happen again.
These provisions of the Model Agreement emphasise to businesses the renewed importance of maintaining strict confidentiality over sensitive information provided to Competition Authorities in any relevant jurisdiction.
Legally applicable rights or privileges
A Competition Authority cannot be compelled under the Model Agreement to provide Investigative Information in violation of a legally applicable right or privilege (e.g. against self-incrimination). If, however, a responding Competition Authority does in fact do so, the Model Agreement provides that the requesting Competition Authority will ensure that it does not use such information for the purposes of the enforcement of its competition laws and will take all appropriate steps to limit the disclosure of such information in other contexts.
This is however subject to one very important exception: when, after discussion with the responding Competition Authority it has been determined that any such privilege or protection has been waived or otherwise lost. This is particularly concerning in circumstances where the privilege or protection has been lost by virtue of the Competition Authority’s actions alone, and is another matter for businesses to be aware of.
The ACCC has taken the opportunity afforded by the signing of the MOU to emphasise the many strands of its focus against digital platforms, with Mr Sims stating:
“We expect this cooperation will particularly benefit our existing and future investigations of digital platforms, which are being closely watched by many agencies globally”
We expect the ACCC to be taking advantage of the new ability to coordinate with Competition Authorities’ to gather evidence in this and other global sectors.