International Competition Network Adopts Recommended Practices on Merger Notification and Review and New Work on a Framework for Analyzing Exclusionary Unilateral Conduct
At its annual meeting, the International Competition Network (ICN) adopted new recommended practices for merger review, addressing notification thresholds, remedies, and efficiencies; a framework for analyzing unilateral conduct; guiding principles for market studies; and a report on setting cartel fines, the Department of Justice announced today.
The ICN held its 16th annual conference, hosted by the Portuguese Competition Authority, on May 10-12, 2017. More than 500 delegates from over 80 jurisdictions participated, including competition experts from international organizations and the legal, business, academic, and consumer communities. Acting Assistant Attorney General Andrew Finch of the Department of Justice’s Antitrust Division and Acting FTC Chairman Maureen Ohlhausen led the U.S. delegation. The conference showcased the achievements of the ICN working groups on unilateral conduct, mergers, competition advocacy, agency effectiveness and cartels. The conference also discussed current competition issues and the future direction of the network.
“The ICN plays a central role in promoting collaboration among antitrust authorities from around the world,” said Acting Assistant Attorney General Finch. “The Antitrust Division is committed to participating fully in efforts by ICN to promote international convergence in antitrust enforcement. The annual conference is an excellent opportunity to explore with our international colleagues ways in which we can pursue our shared enforcement goals.”
Acting Assistant Attorney General Finch spoke on a panel discussing cartel leniency and challenges for the future. The panel was part of the Cartel Working Group’s continuing focus on legal framework issues and enforcement techniques. The Cartel Working Group also presented an updated report on how cartel fines are determined, highlighting common themes and methodologies across jurisdictions.
The Department of Justice co-chairs the Unilateral Conduct Working Group, which concluded a two-year project to produce a workbook chapter on the Analytical Framework for Evaluating Unilateral Conduct. The project explores the issues an agency faces in formulating its unilateral conduct enforcement policies, specifically focusing on two major questions in unilateral conduct enforcement: what is dominance and what makes conduct exclusionary.
The Agency Effectiveness Working Group made two additions to its Agency Practice Manual that addressed effective operations of a competition agency: a report on competition agencies’ use of social media and a report on agency staff training. The Social Media Report describes competition agencies’ external social media communication usage, strategies, and lessons learned, while the Staff Training Report focuses on training tools used by member agencies. It also presented three new video training modules as part of its on-line interactive educational center for competition authorities from around the world.
“Through their participation in the conference, the world’s competition agencies demonstrate a shared commitment to strive toward convergence on sound competition analysis and fair process in antitrust investigations,” said FTC Acting Chairman Ohlhausen. “The ICN serves as an important forum to further advance international coordination and cooperation of antitrust enforcement based on sound economics, procedural fairness, transparency and non-discriminatory treatment of parties.”
Acting Chairman Ohlhausen helped lead the conference’s discussion of the analysis of non-price effects in merger analysis. The panel explored the potential effects of mergers on non-price dimensions such as quality, innovation, product variety, and service. The FTC co-chairs the ICN’s Merger Working Group, which promotes convergence toward best practices in merger review process and analysis and seeks to reduce the public and private costs of multijurisdictional merger reviews.
This year, the Merger Working Group presented four new Recommended Practices on 1) the types of transactions subject to merger review, 2) merger notification thresholds, 3) merger remedies, and 4) the analysis of merger efficiencies. These recommendations join two sets of Merger Recommended Practices that address a range of notification, review, and analysis issues. Recommended Practices are the ICN’s most prominent and influential work product, used by agencies around the world to benchmark their own practices and inspire convergence.
The Advocacy Working Group provides guidance and facilitates experience sharing to improve the effectiveness of ICN members’ competition advocacy. This year, the group created new Market Studies Guiding Principles, a compilation of effective practices for agencies to consider when undertaking studies to understand the state of competition in specific sectors. It also expanded its “Explaining the Benefits of Competition” resources to include tips, messages, and case studies on communicating with the public.
Created in October 2001 to increase understanding of competition policy and promote convergence toward sound antitrust enforcement around the world, the ICN, founded by 15 members including the Department of Justice’s Antitrust Division and the FTC, has grown to 135 member agencies from 122 jurisdictions, supported by a wide network of non-government advisors from around the world.