ICN Cartel Workshop Cape Town
Mini Plenary IV – Information Sharing:
Barriers, Waives and Challenges,
Cape Town, 17 October 2013
Barbara Schulze
Bundeskartellamt
International Competition Matters
Overview
I.
II.
III.
IV.
V.
VI.
Cooperation and information sharing is a
bilateral exercise - Knowing each other is key.
Legal frameworks – barriers to information
sharing
Ways to overcome these barriers
Challenges to cooperation
Case example: The Mills Case (DE, F, NL)
Informal exchange of information
17 October 2013
I.1 Who am “I” - The Bundeskartellamt
Institutional design


President, Vice-President

General Policy Division, International Unit

Litigation Department, Specialised Unit
12 Decision Divisions (3 specialized on cartels)

Independent bodies, decisions taken by Head of division + 2
Rapporteurs by majority vote (court like structure)

Bundeskartellamt budget: € 25 Mio.

Around 320 employees (140 legal experts/economists)
17 October 2013
The Bundeskartellamt - Organisation
17 October 2013
The Bundeskartellamt’s legal framework

Art. 101 and 102 TFEU, EU-Regulations and Guidelines

Act against Restraints of Competition

(enacted1958, 8th Amendment of 30 June, 2013)
 Administrative regulations of the Bundeskartellamt

i.e. leniency programme, guidelines on the setting of fines
 Administrative Offences Act
 Code of Criminal Procedure
17 October 2013
BKArtA-Enforcement Activities - Cartels
 CARTEL CASES 2012:

Number of leniency applications: 51

Number of dawn raids: 8
+ 5 for the European Commission
+ 1 for competition agencies of other EU Member States

Number of cartel cases closed: 21

Total fines: € 316 million
17 October 2013
Enforcement Activities - Cartels
Recent cases – recent experience
 Price fixing of coffee roasters: working group of directors and sales
managers of different coffee roasters coordinated price increases for roasted
coffee in the out-of-house market (supply of gastronomy, hotels, …)

Agreements on quotas for fire engines: companies' sales managers of two
producers of fire engines with turntable ladders (combined market share of
nearly 100%) divided tenders among each other on the basis of project lists to
divide the market up in a ratio of 50/50
 Territorial agreements between liquefied gas suppliers: suppliers agreed
not to poach customers from one another. Customers wishing to switch supplier
were either not quoted a price, or if at all, an excessive “deterrent price”.
17 October 2013
I.2 Who is the other?- Cooperation with
other agencies (1)
 NATIONAL:

Regional Cartel Authorities (16 “Länder”)

Ministry of Economics (not in cartel cases)
 EUROPE:

European Commission

European Competition Network (ECN)
17 October 2013
Cooperation with other agencies (2)
 INTERNATIONAL:

International Competition Network (ICN)

Organisation for Economic Cooperation and
Development (OECD)

United Nations Conference on Trade and Development
(UNCTAD)

Bilateral cooperation – special: USA, Switzerland
17 October 2013
II. Barriers to information sharing
 Legal barriers
 Confidentiality
 Professional secrecy
 Data protection
 Other
 Factual barriers
 Different legal systems and cultures
 Language barriers
 Resources (you just cannot do it)
17 October 2013
III. Overcoming the barriers
 ECN
 Information exchange for network purposes
 Information exchange for use in evidence
 National information gateways
 Available in several countries
 Germany: Sec. 50 b ARC
 Bilateral Treaties
Gemany-USA; EU-Switzerland
 Waivers

17 October 2013
IV. Challenges
 Legal – even within the ECN remaining uncertainties
about certain grey zones (eg do double standards
apply or those of transmitting agency)
 Personal – resources, languages, time zones,
different instutional set-up, mutal trust, in particular in
view of past experience,
 Factual – effects of cooperation or non-cooperation
on strategies of leniency applications and defendants
17 October 2013
V. Case Example: the mills case
 Cartel proceedings in DE, FR and NL against the milling




industry – common legal framework on substance, but
national procedures.
Leniency applications in each country, coordination of
course of investigation, in particular the setting of fines.
But: difficulties to coordinate timing in view of national
constraints and different institutional organisation.
Fined behaviour different in each country, no ibis in idem
but:
Financial limitations of defendants, inability to pay.
17 October 2013
VI. Informal information exchange
 Informal exchanges can get already help
 Keeping in mind that definition of confidential might differ

OECD started work on definitions – asked members to provide
information on their legal framework
 Exchange views on theories of harm, share publicly
available information on cases, markets, else
 Provide information on timing
 Limitations
17 October 2013
Thank you!
For further information:
http://www.bundeskartellamt.de/wEnglisch/index.php
http://www.bundeskartellamt.de/wDeutsch/download/pdf/Merkblaetter/Merkblaetter_englisch/I
CN_Anti-Cartel_Enforcement_Template_2013.pdf
Barbara Schulze
Head of Unit
International Competition Matters
Bundeskartellamt
Kaiser-Friedrich-Str. 16
D-53113 Bonn
Tel: +49 (0) 228 / 94 99 - 240
Fax: +49 (0) 228 / 94 99 - 144
E-Mail: barbara.schulze@bundeskartellamt.bund.de
Internet: www.bundeskartellamt.de