Agreement between the Government of Canada and the Government of the United Mexican States Regarding the Application of their Competition Laws
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Table of Contents
I. Purpose and definitions
II. Notification
III. Enforcement cooperation
IV. Coordination with regard to related matters
V. Positive comity
VI. Avoidance of conflicts
VII. Technical assistance
VIII. Consultations
IX. Periodic meetings
X. Confidentiality of information
XI. Existing laws
XII. Communications under this agreement
The Government of Canada and the Government of The United Mexican States (hereinafter
referred to as "the Parties");
Having Regard to their close economic relations and cooperation within
the framework of the North American Free Trade Agreement ("NAFTA");
Noting that the sound and effective enforcement of their competition
laws is a matter of importance to the efficient operation of markets within
the free trade area and to the economic welfare of the Parties' citizens;
Having Regard to their commitment in Chapter 15 of NAFTA to the importance
of cooperation and coordination between their competition authorities to further
effective competition law enforcement in the free trade area;
Recognizing that coordination of enforcement activities under the
Parties' competition laws may, in appropriate cases, result in a more effective
resolution of the Parties' respective concerns than would be attained through
independent action;
Recognizing Further that technical assistance between the Parties'
competition authorities will contribute to improving and strengthening their
relationship;
Noting that from time to time differences may arise between the Parties
concerning the application of their competition laws to conduct or transactions
that implicate the important interests of both Parties;
Noting further their commitment to give careful consideration to each
other's important interests in the application of their competition laws; and
Having Regard to the growing cooperation between the Parties in matters
relating to competition law, including the 1995 Recommendation of the Council
of the OECD Concerning Cooperation Between Member Countries on Anticompetitive
Practices Affecting International Trade, the 1998 Recommendation of the Council
of the OECD Concerning Effective Action Against Hard Core Cartels and the Communiqué issued
at the Panama Antitrust Summit Meeting in October 1998;
Have agreed as follows:
Article I
Purpose and definitions
- The purposes of this Agreement are to promote cooperation, including both
enforcement activities and technical assistance initiatives, to promote coordination
between the competition authorities of the Parties, to avoid conflicts arising
from the application of the Parties' competition laws and to minimize the
impact of differences on their respective important interests.
- For the purposes of this Agreement, the following terms shall have the
following definitions:
(a) "Anticompetitive activity(ies)" means any conduct or
transaction that may be subject to penalties or other relief under the
competition laws of a Party;
(b) "Competition authority(ies)" means
(i) for Canada, the Commissioner of Competition;
(ii) for the United Mexican States, the Federal Competition Commission;
(c) "Competition law(s)" means
(i) for Canada, the Competition Act, R.S.C. 1985, c. C-34,
except sections 52 through 60 and sections 74.01 through 74.19;
(ii) for the United Mexican States, the Federal Law of Economic Competition
of December 24, 1992, except for Articles 14 and 15, and the Regulations
of the Federal Law of Economic Competition of March 4, 1998, except
for Article 8;
as well as any amendments thereto, and such other laws or regulations
as the Parties may from time to time agree in writing to be a "competition
law" for the purposes of this Agreement; and
(d) "Enforcement activity(ies)" means any investigation or
proceeding conducted by a Party in relation to its competition laws.
- 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 provision thereof. Each Party shall
promptly notify the other of any amendments to its competition laws.
Article II
Notification
- Each Party shall, subject to Article X(1), notify the other Party in the
manner provided by this Article and Article XII 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 require notification include those that:
(a) are relevant to enforcement activities of the other Party;
(b) involve anticompetitive activities, other than mergers or acquisitions,
carried out in whole or in substantial part in the territory of the other
Party;
(c) involve mergers or acquisitions 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 organized under the laws of the other Party
or of one of its provinces or states;
(d) involve conduct believed to have been required, encouraged or approved
by the other Party;
(e) involve remedies that expressly require or prohibit conduct in
the territory of the other Party or are otherwise directed at conduct
in the territory of the other Party; or
(f) involve the seeking of information located in the territory of
the other Party.
- Notification pursuant to this Article shall ordinarily be given as soon
as a Party's competition authority becomes aware that notifiable circumstances
are present, and in any event in accordance with paragraphs 4 through 8 of
this Article.
- When the competition authority of a Party requests that a person provide
information, documents or other records located in the territory of the notified
Party, or requests oral testimony in a proceeding or participation in a personal
interview by a person located in the territory of the notified Party, notification
shall be given
(a) in the case of either voluntary or compulsory compliance with a
request for written information, documents or other records, at or before
the time that the request is made; and
(b) in the case of oral testimony or personal interviews, at or before
the time arrangements for the interview or testimony are made.
- Notification that would otherwise be required by this Article is not required
with respect to telephone contacts with a person where
(a) that person is not the subject of an investigation;
(b) the contact seeks only an oral response on a voluntary basis (although
the availability and possible voluntary provision of documents may be
discussed); and
(c) the other Party's important interests do not appear to be otherwise
implicated, unless the other Party requests such notification in relation
to a particular matter.
- Notification is not required for each subsequent request for information
in relation to the same matter unless the Party seeking information becomes
aware of new issues bearing on the important interests of the other Party,
or the other Party requests otherwise in relation to a particular matter.
- The Parties acknowledge that officials of either Party may visit the territory
of the other Party in the course of conducting investigations pursuant to
their respective competition laws. Such visits shall be subject to notification
pursuant to this Article and the consent of the notified Party.
- Each Party shall notify the other whenever its competition authority intervenes
or otherwise publicly participates in a regulatory or judicial proceeding
that is not initiated by the competition authority if the issue addressed
in the intervention or participation may affect the other Party's important
interests. Such 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 effect of the enforcement activity on
its own important interests, and shall include the nature of the activities
under investigation and the legal provisions concerned. Where possible, notifications
shall include the names and locations of the persons involved. Notifications
concerning a proposed undertaking, conditioned approval or consent order
shall either include, or as soon as practicable be followed by, copies of
the proposed undertaking, conditioned approval or consent order and any competitive
impact statement or agreed statement of facts relating to the matter.
Article III
Enforcement cooperation
- (a) The Parties acknowledge that it is in their common interest to cooperate
in the detection of anticompetitive activities and the enforcement of their
competition laws to the extent compatible with their respective laws and
important interests, and according to their reasonably available resources.
(b) The Parties further acknowledge that it is in their common interest
to share information which will facilitate the effective application of
their competition laws and promote better understanding of each other's
enforcement policies and activities.
- The Parties will consider adopting further arrangements as may be feasible
and desirable to enhance cooperation in the enforcement of their competition
laws.
- Each Party's competition authority will, to the extent compatible with
that Party's laws, enforcement policies and other important interests,
(a) assist the other Party's competition authority, upon request, in
locating and obtaining evidence and witnesses, and in obtaining voluntary
compliance with requests for information, in the requested Party's territory;
(b) inform the other Party's competition authority with respect to enforcement
activities involving conduct that may also have an adverse effect on
competition within the territory of the other Party;
(c) provide to the other Party's competition authority, upon request,
such information within its possession as the requesting Party's competition
authority may specify that is relevant to the requesting Party's enforcement
activities; and
(d) provide the other Party's competition authority with any significant
information that comes to its attention about anticompetitive activities
that may be relevant to, or may warrant, enforcement activity by the
other Party's competition authority.
- Nothing in this Agreement shall prevent the Parties from seeking or providing
assistance to one another pursuant to other agreements, treaties, arrangements
or practices between them.
Article IV
Coordination with regard to related matters
- Where both Parties' competition authorities are pursuing enforcement activities
with regard to related matters, they will consider coordination of their
enforcement activities. In such matters, the Parties may invoke such mutual
assistance arrangements as may be in force from time to time.
- In considering whether particular enforcement activities should be coordinated,
either in whole or in part, the Parties' competition authorities shall take
into account the following factors, among others:
(a) the effect of such coordination on the ability of both Parties to
achieve their respective enforcement objectives;
(b) the relative abilities of the Parties' competition authorities to
obtain information necessary to conduct the enforcement activities;
(c) the extent to which either Party's competition authority can secure
effective relief against the anticompetitive activities involved;
(d) the possible reduction of cost to the Parties and to the persons
subject to enforcement activities; and
(e) the potential advantages of coordinated remedies to the Parties
and to the persons subject to the enforcement activities.
- In any coordination arrangement, each Party's competition authority shall
seek to conduct its enforcement activities consistently with the enforcement
objectives of the other Party's competition authority.
- In the case of concurrent or coordinated enforcement activities, the competition
authority of each Party shall consider, upon request by the competition authority
of the other Party and where consistent with the requested Party's enforcement
interests, ascertaining whether persons that have provided confidential information
in connection with those enforcement activities will consent to the sharing
of such information between the Parties' competition authorities.
- Either Party's competition authority may at any time notify the other Party's
competition authority that it intends to limit or terminate coordinated enforcement
and pursue its enforcement activities independently and subject to the other
provisions of this Agreement.
Article V
Positive comity
- The Parties note that anticompetitive 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 their common interest to seek relief against anticompetitive
activities of this nature.
- If a Party believes that anticompetitive activities carried out in the
territory of the other Party adversely affect its 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 anticompetitive activities and their effects on the
interests of the 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's competition authority shall carefully consider whether
to initiate enforcement activities or to expand ongoing enforcement activities,
with respect to the anticompetitive activities identified in the request.
The requested Party's competition authority shall promptly inform the requesting
Party of its decision. If enforcement activities are initiated, the requested
Party's competition authority shall advise the requesting Party of their
outcome and, to the extent possible, of significant interim developments.
- Nothing in this Article limits the discretion of the requested Party's
competition authority under its competition laws and enforcement policies
as to whether to undertake enforcement activities with respect to the anticompetitive
activities identified in a request, or precludes the requesting Party's competition
authority from undertaking enforcement activities with respect to such anticompetitive
activities.
Article VI
Avoidance of conflicts
- Within the framework of its own laws and to the extent compatible with
its important interests, each Party shall, having regard to the purposes
of this Agreement as set out in Article I, give careful consideration to
the other Party's important interests throughout all phases of its 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.
- When a Party informs the other that a specific enforcement activity may
affect the first Party's important interests, the second Party shall provide
timely notice of developments of significance to those interests.
- While an important interest of a Party may exist in the absence of official
involvement by the Party with the activity in question, it is recognized
that such interest would normally be reflected in antecedent laws, decisions
or statements of policy by its competent authority.
- A Party's important interests may be affected at any stage of enforcement
activity by the other Party. The Parties recognize the desirability of minimizing
any adverse effects of their enforcement activities on each other's important
interests, particularly in the choice of remedies. Typically, the potential
for adverse impact on one Party's important interests arising from enforcement
activity by the other Party is less at the investigative stage and greater
at the stage at which conduct is prohibited or penalized, or at which other
forms of remedial orders are imposed.
- Where it appears that one Party's enforcement activities may adversely
affect the important interests of the other Party, each Party shall, in assessing
what measures it will take, consider all appropriate factors, which may include
but are not limited to
(a) the relative significance to the anticompetitive activities involved
of conduct occurring within one Party's territory as compared to conduct
occurring within that of the other;
(b) the relative significance and foreseeability of the effects of the
anticompetitive activities on one Party's important interests as compared
to the effects on the other Party's important interests;
(c) the presence or absence of a purpose on the part of those engaged
in the anticompetitive activities to affect consumers, suppliers or competitors
within the enforcing Party's territory;
(d) the degree of conflict or consistency between the first Party's
enforcement activities (including remedies) and the other Party's laws
or other important interests;
(e) whether private persons, either natural or legal, will be placed
under conflicting requirements by both Parties;
(f) the existence or absence of reasonable expectations that would be
furthered or defeated by the enforcement activities;
(g) the location of relevant assets;
(h) the degree to which a remedy, in order to be effective, must be
carried out within the other Party's territory; and
(i) the extent to which enforcement activities of the other Party with
respect to the same persons, including judgments, undertakings, conditioned
approvals or consent orders resulting from such activities, would be
affected.
Article VII
Technical assistance
The Parties agree that it is in their common interest for their competition
authorities to work together in technical assistance initiatives related to
competition law enforcement and policy. These initiatives may include, according
to their competition agencies' reasonably available resources and to the extent
authorized by their respective laws: exchanges of competition agency personnel
for training purposes at each other's competition agencies; participation of
competition agency personnel as lecturers or consultants at training courses
on competition law and policy organized or sponsored by each other's competition
authority; and such other forms of technical assistance as the Parties' competition
authorities agree are appropriate for purposes of this Agreement.
Article VIII
Consultations
- 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 shall consult promptly
when so requested with the view to reaching a conclusion that is consistent
with the principles set forth in this Agreement.
- Consultations under this Article shall take place at the appropriate level
as determined by each Party.
- During consultations under this Article, each Party shall provide to the
other as much information as it is able in order to facilitate the broadest
possible discussion regarding the relevant aspects of the matter that is
the subject of consultations. 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 the specific results of its application of those
principles to the matter that is the subject of consultations.
Article IX
Periodic meetings
Officials of the Parties' competition authorities shall meet periodically
to:
(a) exchange information on their current enforcement efforts and priorities
in relation to their competition laws;
(b) exchange information on economic sectors of common interest;
(c) discuss policy changes that they are considering; and
(d) discuss other matters of mutual interest relating to the application
of their competition laws and the operation of this Agreement.
Article X
Confidentiality of information
- Notwithstanding any other provision of this Agreement, neither Party is
required to communicate information to the other Party if such communication
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 consistent with that Party's laws, maintain the confidentiality
of any information communicated to it in confidence by the other Party under
this Agreement. Each Party shall oppose any application by a third party
for disclosure of such confidential information.
- The degree to which either Party communicates information to the other
pursuant to this Agreement may be subject to and dependent upon the acceptability
of the assurances given by the other Party with respect to confidentiality
and with respect to the purposes for which the information will be used.
- (a) Notifications and consultations under Articles II and VIII of this
Agreement and other communications between the Parties in relation thereto
shall be deemed confidential.
(b) A notified Party may not, without the consent of the other Party,
communicate to its state or provincial authorities information received
from the other Party pursuant to notifications or consultations under this
Agreement.
- Subject to paragraph 2, information communicated in confidence by a Party's
competition authority to the competition authority of the other Party pursuant
to Articles III, IV or V of this Agreement shall not be communicated to third
parties without the consent of the competition authority that provided the
information.
- Information communicated in confidence by a Party's competition authority
to the competition authority of the other Party pursuant to Articles III,
IV or V of this Agreement shall not be used for purposes other than competition
law enforcement without consent of the competition authority that provided
the information.
Article XI
Existing laws
Nothing in this Agreement shall require a Party to take any action, or to
refrain from acting, in a manner that is inconsistent with its existing laws,
or require any change in the laws of the Parties or of their respective provinces
or states.
Article XII
Communications under this agreement
Communications under this Agreement may be carried out directly between the
competition authorities of the Parties. Notifications under Article II and
requests under Articles V(2) and VIII(1) shall, however, be confirmed promptly
in writing through customary diplomatic channels.
Article XIII
Entry into force and termination
- This Agreement shall enter into force on the date notifications certifying
the completion of internal procedures are exchanged through diplomatic channels.
- This Agreement shall remain in force until 60 days after the date on which
either Party notifies the other in writing that it wishes to terminate the
Agreement.
In Witness Whereof, the undersigned, being duly authorized by their
respective Governments, have signed this Agreement.
Done at ,
this day of 2001,
in the English, French and Spanish languages, each text being equally authentic.
____________________________ |
______________________________ |
For the Government of
of Canada
|
For the Government of
The United Mexican States |