Agreement between the Government of Canada and the Government of the United
States of America on the Application of Positive Comity Principles to the Enforcement
of their Competition Laws
(PDF: 61KB)
Table of Contents
I. Scope and Purposes of this Agreement
II. Definitions
III. Positive Comity
IV. Deferral or Suspension of Investigations in Reliance on Enforcement
Activity by the Requested Party
V. Confidentiality and Use of Information
VI. Relationship to the 1995 Agreement
VII. Existing Law
VIII. Entry Into Force and Termination
The Government of Canada and the Government of the United States of America (hereinafter "the
Parties"):
Having Regard to the August 1995 Agreement between the Government of
Canada and the Government of the United States of America Regarding the Application
of Their Competition and Deceptive Marketing Practices Laws (hereinafter "the
1995 Agreement");
Recognizing that the 1995 Agreement has contributed to coordination,
cooperation and avoidance of conflicts in competition law enforcement;
Noting in particular Article V of the 1995 Agreement, commonly referred
to as the "Positive Comity" article, which calls for cooperation regarding
anticompetitive activities occurring in the territory of one Party that adversely
affect the important interests of the other Party;
Believing that further elaboration of the principles of positive comity
and of the implementation of those principles would enhance the 1995 Agreement's
effectiveness in relation to such anticompetitive activities; and
Noting that nothing in this Agreement or its implementation shall be
construed as prejudicing either Party's position on issues of competition law
jurisdiction in the international context,
Have agreed as follows:
Article I
Scope and Purposes of this Agreement
- This Agreement applies where the competition authorities of a Party satisfy
the competition authorities of the other Party that there is reason to believe
that the following circumstances are present:
(a) Anticompetitive activities are occurring in whole or in substantial
part in the territory of one of the Parties and are adversely affecting
the important interests of the other Party; and
(b) The activities in question may be subject to penalties or other relief
under the competition laws of the Party in whose territory the activities
are occurring.
- The purposes of this Agreement are to:
(a) Help ensure that trade and investment flows between the Parties and
competition and consumer welfare within the territories of the Parties are
not impeded by anticompetitive activities for which the competition laws
of one or both Parties can provide a remedy, and
(b) Establish cooperative procedures to achieve the most effective and efficient
enforcement of competition law, whereby the competition authorities of each
Party will normally avoid allocating enforcement resources to dealing with
anticompetitive activities that occur principally in and are directed principally
towards the other Party's territory, where the competition authorities of
the other Party are able and prepared to examine and take effective sanctions
under their law to deal with those activities.
Article II
Definitions
As used in this Agreement:
- "Adverse effects" and "adversely affected" mean harm caused by anticompetitive
activities to:
(a) the ability of persons, either natural or legal, in the territory
of a Party to export to, invest in, or otherwise compete in the territory
of the other Party, or
(b) competition in a Party's domestic or import markets.
- "Anticompetitive activities" means any conduct or transaction that may
be subject to penalties or other relief under the competition laws of a Party.
- "Competition authorities" means:
(a) for Canada, the Commissioner of Competition (referred to as the Director
of Investigation and Research in the 1995 Agreement), and
(b) for the United States of America, the Antitrust Division of the United
States Department of Justice and the Federal Trade Commission.
- "Competition law(s)" means:
(a) for Canada, the Competition Act, R.S.C. 1985, c. C-34, as amended,
except sections 52 through 60, 74.01 through 74.19, 91 through 103, and
108 through 124 of that Act, and
(b) for the United States of America, the Sherman Act (15 U.S.C. §§1-7),
the Clayton Act (15 U.S.C. §§12-27, except as it relates to investigations
pursuant to Title II of the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, 15 U.S.C. §18a), the Wilson Tariff Act (15 U.S.C. §§8-11),
and the Federal Trade Commission Act (15 U.S.C. §§41-58, except
as these sections relate to consumer protection functions),
as well as such other laws or regulations as the Parties shall jointly agree
in writing to be a "competition law" for the purposes of this Agreement.
- "Enforcement activities" means any investigation or proceeding conducted
by the competition authorities of a Party in relation to its competition
laws.
- "Requested Party" means a Party in the territory of which anticompetitive
activities appear to be occurring.
- "Requesting Party" means a Party that is adversely affected by anticompetitive
activities that appear to be occurring in whole or in substantial part in
the territory of the other Party.
Article III
Positive Comity
The competition authorities of a Requesting Party may request the competition
authorities of a Requested Party to investigate and, if warranted, to remedy
anticompetitive activities in accordance with the Requested Party's competition
laws. Such a request may be made regardless of whether the activities also
violate the Requesting Party's competition laws, and regardless of whether
the competition authorities of the Requesting Party have commenced or contemplate
taking enforcement activities under their own competition laws.
Article IV
Deferral or Suspension of Investigations in Reliance on Enforcement Activity
by the Requested Party
- The competition authorities of the Parties may agree that the competition
authorities of the Requesting Party will defer or suspend pending or contemplated
enforcement activities during the pendency of enforcement activities of the
Requested Party.
- The competition authorities of a Requesting Party will normally defer or
suspend their own enforcement activities in favor of enforcement activities
by the competition authorities of the Requested Party when the following
conditions are satisfied:
(a) The anticompetitive activities at issue:
(i) do not have a direct, substantial and reasonably foreseeable impact
on consumers in the Requesting Party's territory, or
(ii) where the anticompetitive activities do have such an impact on
the Requesting Party's consumers, they occur principally in and are directed
principally towards the other Party's territory;
(b) The adverse effects on the important interests of the Requesting Party
can be and are likely to be fully and adequately investigated and, as appropriate,
eliminated or adequately remedied pursuant to the laws, procedures and
available remedies of the Requested Party. The Parties recognize that it
may be appropriate to pursue separate enforcement activities where anticompetitive
activities affecting both territories justify the imposition of penalties
within both jurisdictions; and
(c) The competition authorities of the Requested Party agree that in conducting
their own enforcement activities, they will:
(i) devote adequate resources to investigate the anticompetitive activities
and, where appropriate, promptly pursue adequate enforcement activities;
(ii) use their best efforts to pursue all reasonably available sources
of information, including such sources of information as may be suggested
by the competition authorities of the Requesting Party;
(iii) inform the competition authorities of the Requesting Party at
reasonable intervals which normally shall not exceed six weeks, or on
request, of the status of their enforcement activities and intentions,
and where appropriate provide to the competition authorities of the Requesting
Party relevant confidential information. The use and disclosure of such
information shall be governed by Article V;
(iv) promptly notify the competition authorities of the Requesting Party
of any change in their intentions with respect to investigation or enforcement;
(v) use their best efforts to complete their investigation and to obtain
a remedy or initiate proceedings within a specified period to which the
competition authorities of the Parties shall agree, which shall be as
short a period as is reasonably feasible. The competition authorities
of the Parties shall agree on such time period within three months of
the time at which a request under Article III of this agreement is made;
(vi) fully inform the competition authorities of the Requesting Party
of the results of their investigation, and take into account the views
of the competition authorities of the Requesting Party, prior to any
settlement, initiation of proceedings, adoption of remedies, or termination
of the investigation; and
(vii) comply with any reasonable request that may be made by the competition
authorities of the Requesting Party.
When the above conditions are satisfied, a Requesting Party which chooses
not to defer or suspend its enforcement activities shall inform the competition
authorities of the Requested Party of its reasons.
- The competition authorities of the Requesting Party may defer or suspend
their own enforcement activities if fewer than all of the conditions set
out in paragraph 2 are satisfied.
- Nothing in this Agreement precludes the competition authorities of a Requesting
Party that choose to defer or suspend independent enforcement activities
from later initiating or re-instituting such activities. In such circumstances,
the competition authorities of the Requesting Party will promptly inform
the competition authorities of the Requested Party of their intentions and
reasons. If the competition authorities of the Requested Party continue with
their own investigation, the competition authorities of the two Parties shall
consider coordination of their respective investigations under the criteria
and procedures of Article IV of the 1995 Agreement.
Article V
Confidentiality and Use of Information
Where pursuant to this Agreement the competition authorities of one Party
provide information to the competition authorities of the other Party for the
purpose of implementing this Agreement, that information shall be used by the
latter competition authorities only for that purpose. However, the competition
authorities that provided the information may consent to another use, on condition
that where confidential information has been provided pursuant to Article IV.2
(c) (iii) on the basis of the consent of the source concerned, that source
also agrees to the other use. Disclosure of such information shall be governed
by the provisions of Article X of the 1995 Agreement.
Article VI
Relationship to the 1995 Agreement
This Agreement shall supplement and be interpreted consistently with the 1995
Agreement, which remains fully in force.
Article VII
Existing Law
Nothing in this Agreement shall be interpreted in a manner inconsistent with
the existing laws, or as requiring any change in the laws, of the Parties or
of their respective Provinces or States.
Article VIII
Entry Into Force and Termination
- This Agreement shall enter into force upon signature.
- This Agreement shall remain in force until 60 days after the date on which
either Party notifies the other Party in writing that it wishes to terminate
the Agreement.
In Witness Whereof, the undersigned, being duly authorized, have signed
this Agreement.
Done in duplicate at , on this day
of 2004, in the English and French languages,
each text being equally authentic.
____________________________ |
______________________________ |
For the Government of
of Canada
|
For the Government of
the United States of America |