Agreement Between The Government of Canada and the European Communities Regarding The Application of Their Competition Laws
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I. Purpose And Definitions
II. Notification
III. Consultations
IV. Coordination of Enforcement
Activities
V. Cooperation Regarding Anti-Competitive
Activities in the Territory of One Party That Adversely Affect the Interests
of the Other Party
VI. Avoidance of Conflict
VII. Exchange of Information
VIII. Semi-Annual Meetings
IX. Communications under this
Agreement
X. Confidentiality and Use of
Information
XI. Existing Law
XII. Entry Into Force and Termination
Annex A
Annex B
Annex C
The Government of Canada ("Canada") of the one part and the European
Community and the European Coal and Steel Community ("the European Communities")
of the other part ("the Parties"):
Considering the close economic relations between them;
Recognising that the world's economies, including those of the Parties, are
becoming increasingly interrelated;
Noting that the Parties share the view that the sound and effective enforcement
of competition law is a matter of importance to the efficient operation of
their respective markets and to trade between them;
Acknowledging their commitment to enhancing the sound and effective enforcement
of their competition laws through cooperation and, in appropriate cases, coordination
between them in the application of those laws;
Noting that coordination of their enforcement activities may, in certain cases,
result in a more effective resolution of the Parties' respective competition
concerns than would be attained through independent enforcement action by the
Parties;
Acknowledging the Parties' commitment to giving careful consideration to each
other's important interests in the application of their competition laws and
to using their best efforts to arrive at an accommodation of those interests;
Having regard to the Recommendation of the Organisation for Economic Cooperation
and Development Concerning Cooperation Between Member Countries on Restrictive
Business Practices Affecting International Trade, adopted on 27 and 28 July
1995; and
Having regard to the Economic Cooperation Agreement between Canada and the
European Communities adopted on 6 July 1976, to the Declaration on European
Community-Canada Relations adopted on 22 November 1990 and to the Joint Political
Declaration on Canada-EU Relations and its accompanying Action Plan adopted
on December 17, 1996;
Have agreed as follows:
- The purpose of this Agreement is to promote cooperation and coordination
between the competition authorities of the Parties and to lessen the possibility
or impact of differences between the Parties in the application of their
competition laws.
- In this Agreement,
"anti-competitive activities" shall mean any conduct or transaction that
may be subject to penalties or other relief under the competition laws
of a Party;
"competent authority of a Member State" shall mean that authority of a
Member State set out in Annex A. Annex A may be added to or modified at
any time by the European Communities. Canada will be notified in writing
of such additions or modifications before any information is sent to a
newly listed authority.
"competition authority" and "competition authorities" shall mean:
(i) for Canada, the Commissioner of Competition appointed under
the Competition Act, and
(ii) for the European Communities, the Commission of the European
Communities, as to its responsibilities pursuant to the competition laws
of the European Communities;
"competition law or laws" shall mean:
(i) for Canada, the Competition Act and regulations thereunder,
and
(ii) for the European Communities, Articles 85, 86, and 89 of
the Treaty establishing the European Community, Council Regulation (EEC)
No 4064/89 on the control of concentrations between undertakings, Articles
65 and 66 of the Treaty establishing the European Coal and Steel Community
(ECSC), and their implementing Regulations pursuant to the said Treaties
including High Authority Decision No 24-54,
as well as any amendments thereto and such other laws or regulations as
the parties may jointly agree in writing to be a "competition law" for
the purposes of this Agreement; and
"enforcement activity" shall mean any application of competition law by
way of investigation or proceeding conducted by the competition authority
of a Party.
-
Any reference in this Agreement to a specific provision in either Party's
competition law shall be interpreted as referring to that provision as
amended from time to time and to any successor provisions.
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- Each Party shall notify the other Party in the manner provided by this
Article and Article IX with respect to its enforcement activities that may
affect important interests of the other Party.
- Enforcement activities that may affect the important interests of the other
Party and therefore ordinarily give rise to notifiable circumstances include
those that:
(i) are relevant to enforcement activities of the other Party;
(ii) involve anti-competitive activities, other than mergers
or acquisitions, carried out wholly or in part in the territory of the
other Party;
(iii) involve conduct believed to have been required, encouraged
or approved by the other Party or one of its provinces or Member States;
(iv) involve a merger or acquisition in which:
- one or more of the parties to the transaction; or
- a company controlling one or more of the parties to the transaction;
is a company incorporated or organised under the laws of the
other Party or one of its provinces or Member States;
(v) involve the imposition of, or application for, remedies by
a competition authority that would require or prohibit conduct in the territory
of the other Party; or
(vi) involve one of the Parties seeking information located in
the territory of the other Party.
- Notification pursuant to this Article shall ordinarily be given as soon
as a competition authority becomes aware that notifiable circumstances are
present, and in any event, in accordance with paragraphs 4 through 7 of this
Article.
- Where notifiable circumstances are present with respect to mergers or acquisitions,
notification shall be given;
(a) in the case of the European Communities, when a notice is published
in the Official Journal, pursuant to Article 4(3) of Council Regulation
(EEC) No 4064/89, or when notice of the transaction is received under Article
66 of the ECSC Treaty and a prior authorisation from the Commission is
required under that provision; and
(b) in the case of Canada, not later than when its competition authority
issues a written request for information under oath or affirmation, or
obtains an order under section 11 of the Competition Act, with respect
to the transaction.
- (a) When the competition authority of a Party requests that a person provide
information, documents or other records located in the territory of the other
Party, or requests oral testimony in a proceeding or participation in a personal
interview by a person located in the territory of the other Party, notification
shall be given at or before the time that the request is made.
(b) Notification pursuant to subparagraph (a) of this paragraph is required
notwithstanding that the enforcement activity in relation to which the
said information is sought has previously been notified pursuant to Article
II, paragraphs 1 to 3. However, separate notification is not required for
each subsequent request for information from the same person made in the
course of such enforcement activity unless the notified Party indicates
otherwise or unless the Party seeking information becomes aware of new
issues bearing upon the important interests of the notified Party.
- Where notifiable circumstances are present, notification shall also be
given far enough in advance of each of the following events to enable the
other Party's views to be considered:
(a) in the case of the European Communities,
(i) when its competition authority decides to initiate proceedings with
respect to the concentration, pursuant to Article 6(1)(c) of Council Regulation
(EEC) No 4064/89;
(ii) in cases other than mergers and acquisitions, the issuance of a statement
of objections; or
(iii) the adoption of a decision or settlement,
(b) in the case of Canada,
(i) the filing of an application with the Competition Tribunal;
(ii) the initiation of criminal proceedings; or
(iii) the settlement of a matter by way of undertaking or consent order.
- (a) Each Party shall also notify the other whenever its competition authority
intervenes or otherwise participates in a regulatory or judicial proceeding,
if the issues addressed in the intervention or participation may affect the
other Party's important interests. Notification under this paragraph shall
apply only to:
(i) regulatory or judicial proceedings that are public; and
(ii) intervention or participation that is public and pursuant to formal
procedures.
(b) Notification shall be made at the time of the intervention or participation
or as soon thereafter as possible.
-
Notifications shall be sufficiently detailed to enable the notified Party
to make an initial evaluation of the effects of the enforcement activity
on its own important interests. Notifications shall include the names and
addresses of the natural and legal persons involved, the nature of the
activities under investigation and the legal provisions concerned.
-
Notifications made pursuant to this Article shall be communicated in accordance
with Article IX
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Either Party may request consultations regarding any matter relating to
this Agreement. The request for consultations shall indicate the reasons
for the request and whether any procedural time limits or other constraints
require that consultations be expedited. Each Party undertakes to consult
promptly when so requested with the view to reaching a conclusion that
is consistent with the principles set forth in this Agreement.
-
During consultations under paragraph 1, the competition authority of each
Party shall carefully consider the representations of the other Party in
light of the principles set out in this Agreement and shall be prepared
to explain to the other Party the specific results of its application of
those principles to the matter under discussion.
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-
The competition authority of each Party shall render assistance to the
competition authority of the other Party in its enforcement activities
to the extent compatible with the assisting Party's laws and important
interests.
-
In cases where both Parties competition authorities have an interest in
pursuing enforcement activities with regard to related situations, they
may agree that it is in their mutual interest to coordinate their enforcement
activities. In considering whether particular enforcement activities should
be coordinated, either in whole or in part, each Party's competition authority
shall take into account the following factors, among others:
(i) the effect of such coordination on the ability of each Party's
competition authority to achieve the objectives of its enforcement activities;
(ii) the relative ability of each Party's competition authority
to obtain information necessary to conduct the enforcement activities;
(iii) the extent to which either Party's competition authority
can secure effective preliminary or permanent relief against the anti-competitive
activities involved;
(iv) the opportunity to make more efficient use of resources;
and
(v) the possible reduction of cost to persons subject to enforcement
activities.
-
(a) The Parties competition authorities may coordinate their enforcement
activities by agreeing upon the timing of those activities in a particular
matter, while respecting fully their own laws and important interests.
Such coordination may, as agreed by the Parties competition authorities,
result in enforcement action by one or both Parties competition authorities,
as is best suited to attain their objectives.
(b) When carrying out coordinated enforcement activity, each Party's competition
authority shall seek to maximise the likelihood that the other Party's
enforcement objectives will also be achieved.
(c) Either Party may at any time notify the other Party that it intends
to limit or terminate the coordination and pursue its enforcement activities
independently and subject to the other provisions of this Agreement.
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V. Cooperation Regarding Anti-Competitive
Activities in the Territory of One Party That Adversely Affect the Interests
of the Other Party
-
The Parties note that anti-competitive activities may occur within the
territory of one Party that, in addition to violating that Party's competition
laws, adversely affect important interests of the other Party. The Parties
agree that it is in both their interests to address anti-competitive activities
of this nature.
-
If a Party has reason to believe that anti-competitive activities carried
out in the territory of the other Party are adversely affecting, or may
adversely affect the first Party's important interests, the first Party
may request that the other Party's competition authority initiate appropriate
enforcement activities. The request shall be as specific as possible about
the nature of the anti-competitive activities and their effects on the
interests of the requesting Party, and shall include an offer of such further
information and other cooperation as the requesting Party's competition
authority is able to provide.
-
The requested Party shall consult with the requesting Party and the requested
Party's competition authority shall accord full and sympathetic consideration
to the request in deciding whether or not to initiate, or expand, enforcement
activities with respect to the anti-competitive activities identified in
the request. The requested Party's competition authority shall promptly
inform the other Party of its decision and the reasons for that decision.
If enforcement activities are initiated, the requested Party's competition
authority shall advise the requesting Party of significant developments
and the outcome of the enforcement activities.
-
Nothing in this Article limits the discretion of the requested Party's
competition authority under its competition laws and enforcement policies
as to whether or not to undertake enforcement activities with respect to
the anti-competitive activities identified in the request, or precludes
the requesting Party's competition authority from undertaking enforcement
activities with respect to such anti-competitive activities.
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Within the framework of its own laws and to the extent compatible with
its important interests, each Party shall, having regard to the purpose
of this Agreement as set out in Article I, give careful consideration to
the other Party's important interests throughout all phases of competition
enforcement activities, including decisions regarding the initiation of
an investigation or proceeding, the scope of an investigation or proceeding
and the nature of the remedies or penalties sought in each case.
-
Where it appears that one Party's enforcement activities may adversely
affect the important interests of the other Party, each Party shall, consistent
with the general principles set out above, use its best efforts to arrive
at an appropriate accommodation of the Parties competing interests and
in doing so each Party shall consider all relevant factors, including:
(i) the relative significance to the anti-competitive activities
involved of conduct occurring within one Party's territory as compared
to conduct occurring within that of the other;
(ii) the relative significance and foreseeability of the effects
of the anti-competitive activities on one Party's important interests as
compared to the effects on the other Party's important interests;
(iii) the presence or absence of a purpose on the part of those
engaged in the anti-competitive activities to affect consumers, suppliers
or competitors within the enforcing Party's territory;
(iv) the degree of conflict or consistency between the enforcement
activities and the other Party's laws or articulated economic policies
including those expressed in the application of, or decisions under, their
respective competition laws;
(v) whether private persons, either natural or legal, will be
placed under conflicting requirements by both Parties;
(vi) the existence or absence of reasonable expectations that
would be furthered or defeated by the enforcement activities;
(vii) the location of relevant assets;
(viii) the degree to which a remedy, in order to be effective,
must be carried out within the other Party's territory;
(ix) the need to minimise the negative effects on the other Party's
important interests, in particular when implementing remedies to address
anti-competitive effects within the Party's territory; and
(x) the extent to which enforcement activities of the other Party
with respect to the same persons, including judgments or undertakings resulting
from such activities, would be affected.
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In furtherance of the principles set forth in this Agreement, the Parties
agree that it is in their common interest to share information which will
facilitate the effective application of their respective competition laws
and promote better understanding of each others enforcement policies and
activities.
-
Each Party agrees to provide to the other Party upon request such information
within its possession as the requesting Party may describe that is relevant
to an enforcement activity that is being contemplated or conducted by the
requesting Party's competition authority.
-
In the case of concurrent action by the competition authorities of both
Parties with a view to the application of their competition law, the competition
authority of each Party shall, upon request by the competition authority
of the other Party, ascertain whether the natural or legal persons concerned
will consent to the sharing of confidential information related thereto
between the Parties competition authorities.
-
During consultations pursuant to Article III, each Party shall provide
the other with as much information as it is able in order to facilitate
the broadest possible discussion regarding the relevant aspects of a particular
transaction.
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In furtherance of their common interest in cooperation and coordination
in relation to their enforcement activities, appropriate officials of the
Parties competition authorities shall meet twice a year, or otherwise as
agreed between the competition authorities of the Parties, to: (a) exchange
information on their current enforcement activities and priorities, (b)
exchange information on economic sectors of common interest, (c) discuss
policy changes which they are considering, and (d) discuss other matters
of mutual interest relating to the application of competition laws.
-
A report on these semi-annual meetings shall be made available to the
Joint Cooperation Committee under the Framework Agreement for Commercial
and Economic Cooperation between the European Communities and Canada.
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Communications under this Agreement, including notifications under Article
II and requests under Articles III and V, may be carried out by direct oral,
telephonic or facsimile communication between the competition authorities of
the Parties. Notifications under Article II and requests under Articles III
and V, however, shall be confirmed promptly in writing through normal diplomatic
channels.
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-
Notwithstanding any other provision of this Agreement, neither Party is
required to disclose information to the other Party where such disclosure
is prohibited by the laws of the Party possessing the information or would
be incompatible with that Party's important interests.
-
Unless otherwise agreed by the Parties, each Party shall, to the fullest
extent possible, maintain the confidentiality of any information communicated
to it in confidence by the other Party under this Agreement. Each Party
shall oppose, to the fullest extent possible, any application by a third
party for disclosure of such information.
-
(a) The competition authority of the European Communities, after notice
to the Canadian competition authority, will inform the competent authorities
of the Member State or Member States whose important interests are affected
of the notifications sent to it by the Canadian competition authority.
(b) The competition authority of the European Communities, after consultation
with the Canadian competition authority, will inform the competent authorities
of such Member State or Member States of any cooperation and coordination
of enforcement activities. However, as regards such activities, the competition
authority of the European Communities will respect the Canadian competition
authority's request not to disclose the information which it provides when
necessary to ensure confidentiality.
-
Before taking any action which may result in a legal obligation to make
available to a third party information provided in confidence under this
Agreement, the Parties competition authorities shall consult one another
and give due consideration to their respective important interests.
-
Information received by a Party under this Agreement, apart from information
received under Article II, shall only be used for the purpose of enforcing
that Party's competition laws. Information received under Article II shall
only be used for the purpose of this Agreement.
-
A Party may require that information furnished pursuant to this Agreement
be used subject to the terms and conditions it may specify. The receiving
Party shall not use such information in a manner contrary to such terms
and conditions without the prior consent of the other Party.
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Nothing in this Agreement shall require a Party to take any action that is
inconsistent with its existing laws, or require any change in the laws of the
Parties or of their respective provinces or Member States.
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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.
-
The Parties shall review the operation of this Agreement not more than
24 months from the date of its entry into force, with a view to assessing
their cooperative activities, identifying additional areas in which they
could usefully cooperate and identifying any other ways in which the Agreement
could be improved. The Parties agree that this review will include, among
other things, an analysis of actual or potential cases to determine whether
their interests could be better served through closer cooperation.
Attached to this Agreement are three letters exchanged between the Parties.
These letters form an integral part of this Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this
Agreement.
DONE at Bonn, in duplicate, this 17thday
of June, in the English, French, Danish, German, Greek, Spanish,
Italian, Dutch, Portuguese, Finnish and Swedish languages, each text being
equally authentic.
Werner Müeller
For the European Community
Karel Van Miert
For the European Coal and Steel Community
Jean-Pierre Juneau
For the Government of Canada
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Austria
Bundesministerium für wirtschaftliche Angelegenheiten
Abteilung X/A/6 (Wettbewerbsangelegenheiten)
Belgium
Ministerie van Economische Zaken - Ministère des Affaires Economiques
Algemene Inspectie van de Prijzen en de Mededinging - Inspection Générale
des Prix et de la Concurrence
Denmark
Konkurrencerådet
Finland
Kilpailuvirasto/Konkurrensverket
France
Ministère de l'Economie et des Finances
Direction Générale de la Concurrence, de la Consommation et des
Fraudes
Germany
Bundeskartellamt
Greece
Competition Commission
Ireland
Competition Authority
Italy
Autorità Garante della Concorrenza e del Mercato
Luxembourg
Ministère de l'Economie
Netherlands
Ministerie van Economische Zaken
Portugal
Ministério da Economia
Direcção-Geral do Comércio e Concorrência
Spain
Dirección General Política Económica y Defensa de la Competencia
Sweden
Konkurrensverket
United Kingdom
Office of Fair Trading
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Statement by the Commission
(regarding the information to be provided to the Member States)
In accordance with the principles which govern the relationship between the
Commission and the Member States in the application of the Competition rules
as enshrined, for example, in Council Regulation No 17/62, and in accordance
with Article X.3 of the Agreement between the European Communities and Canada
regarding the application of their competition laws,
-
the Commission shall forward to the Member State or Member States whose
important interests are affected the notification sent by the Commission
or received from the Canadian competition authority. Member States shall
be notified as soon as is reasonably possible and in the language of the
exchange. Where the Commission sends information to the Canadian authorities,
Member States shall be informed at the same time.
-
the Commission shall also notify the Member State or Member States whose
important interests are affected of any cooperation or coordination of
enforcement activities, as soon as is reasonably possible.
For the purposes of this statement, it is considered that the important interests
of a Member State are affected where the enforcement activities in question:
(i) are relevant to enforcement activities of the Member State;
(ii) involve anti-competitive activities, other than mergers or acquisitions,
carried out wholly or in part in the territory of the Member State;
(iii) involve conduct believed to have been required, encouraged
or approved by the Member State;
(iv) involve a merger or acquisition in which:
- one or more of the parties to the transaction; or
- a company controlling one or more of the parties to the transaction;
is a company incorporated or organised under the laws of the Member
State;
(v) involve the imposition of, or application for, remedies that
would require or prohibit conduct in the territory of the Member State; or
(vi) involve the Canadian competition authority seeking information
located in the territory of the Member State.
In addition, at least twice a year at meetings of government competition specialists,
the Commission will inform all the Member States about the implementation of
the Agreement, and particularly about the contacts which have taken place with
the Canadian competition authority as regards the forwarding to the Member
States of information received by the Commission under the Agreement.
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Exchange of Letters
A. Letter to the Government of Canada
Dear [Name],
On [date], the Council of the European Union and the Commission of the European
Communities concluded the Agreement between the European Communities and the
Government of Canada regarding the application of their competition laws.
In order to ensure a clear understanding of the European Communities' interpretation
of the Agreement, we set out below two interpretative statements.
-
In the light of Article XI of the Agreement, Article X(1) should be understood
to mean that the information covered by the provisions of Article 20 of
Council Regulation 17/62 or by equivalent provisions in other regulations
in the field of competition may not under any circumstances be communicated
to the Canadian competition authority, save with the express agreement
of the source concerned.
Similarly, the information referred to in Articles II(8) and VII of the
Agreement may not include information covered by Article 20 of Regulation
17/62 nor by equivalent provisions in other regulations in the field of
competition, save with the express agreement of the source concerned.
-
In the light of Article X(2) of the Agreement, all information provided
in confidence by either of the Parties in accordance with the Agreement
will be considered as confidential by the receiving Party which should
oppose any request for disclosure to a third party unless such disclosure
is (a) authorised by the Party supplying the information or (b) required
under the law of the receiving Party.
This is understood to mean that:
- each Party assures the confidentiality of all information provided
in confidence by the other Party in accordance with the receiving Party's
applicable rules, including those rules intended to assure the confidentiality
of information gathered during a Party's own enforcement activities,
- each Party shall use all the legal means at its disposal to oppose
the disclosure of this information.
We also wish to confirm that, should a Party become aware that, notwithstanding
its best efforts, information has accidentally been used or disclosed in
a manner contrary to the provisions of Article X, that Party shall notify
the other Party forthwith.
Would you kindly confirm by return letter whether this interpretation raises
any difficulties with the Canadian Government.
Please accept, Sir, the assurance of our highest consideration.
For the European Community and for the European Coal and Steel Community
B. Reply from the Government of Canada
Legal Services, Industry Canada
Place du Portage, Phase 1
50 Victoria Street
Hull, Quebec (K1A 0C9)
Telephone: (819) 997 3325
Facsimile: (819) 953 9267
Mr
Member of the European Commission
200 rue de la Loi
1049 Brussels
Belgium
Date:
Dear Commissioner :
Thank you for your letter dated (......). We are very pleased that the Agreement
between the European Communities and the Government of Canada regarding the
application of our respective competition laws has now been completed. The
interpretative and other statements included in your letter are consistent
with our understanding of the Agreement.
I would also like to confirm that, with respect to the application of Article
XI, and for greater certainty, no information may be exchanged by Canada pursuant
to this agreement which could not have been exchanged in the absence of this
agreement. I would ask that you confirm your understanding to this effect by
return letter.
We look forward to continuing and furthering our relationship of competition
law cooperation as reflected in the Agreement and in our mutual conduct to
date.
Please accept, Sir, the assurance of my highest consideration.
Konrad von Finckenstein
Commissioner of Competition
C. Reply to the Government of Canada
Dear (Name)
Thank you very much for your letter dated ( ). We confirm that your letter
does not give rise to any difficulties for the European Communities.
We are extremely pleased that the Agreement between the European Communities
and Canada has been completed and look forward to close cooperation in the
future.
Please accept, Sir, the assurance of my highest consideration.
For the European Community and for the European Coal and Steel Community
Warning note
This version of the agreement has no official sanction
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