European Union: Antitrust Cooperation Agreement Would Permit EU And Swiss Competition Authorities To Share Evidence And Confidential Documents Without The Consent Of The Investigated Party

On 17 May 2013, the European Union (EU) and Switzerland signed the first "second generation" antitrust cooperation agreement (the Agreement)1. Going forward, companies that are involved in or may face competition investigations will need to be mindful when engaging with the local competition authorities that their confidential information may be shared between the two jurisdictions' antitrust agencies without the consent of the company.

Overview

Up to now, the EU and Switzerland have informally cooperated on antitrust matters. However, the Agreement means that the two jurisdictions' respective antitrust watchdogs, the European Commission (EC) and the Swiss Competition Commission (SCC), will be able to source and discuss information and evidence from each other's investigations.

Such information may include information obtained during formal investigative processes, such as responses to information requests, documents secured during unannounced inspections (so-called "dawn raids") and information submitted by companies under the leniency programmes of the EU or Switzerland in exchange for immunity from or a reduction of fines.

Subject to ratification of the Agreement by the European Parliament and the Swiss Parliament, the countries respective antitrust authorities will be able to:

  • discuss any information concerning their antitrust enforcement;
  • transmit information in their possession to each other with the investigated party's consent; and
  • upon request, and even without the investigated party's consent, transmit information for use as evidence, subject to the following safeguards: (i) both competition authorities are investigating the same or related matters; (ii) a request for the information is made in writing, including certain details of the subject matter and nature of the investigation; and (iii) the authority receiving such request determines, in consultation with the requesting authority, what information in its possession is relevant and may be transmitted.

In addition, the Agreement also covers enhanced (i) mutual notifications of respective enforcement activities (both for antitrust and merger control proceedings); (ii) co-ordination of enforcement activities (particularly regarding the timing of inspections); (iii) conflict avoidance (giving careful consideration to each other's interests; and (iv) positive comity (the ability to request the other authority to initiate or expand appropriate enforcement activities).

Assessment

Companies will need to consider carefully the reach of the Agreement when engaging with the EC and/or the SCC. In particular, the impact of the Agreement will need to be considered by companies when drafting leniency applications. This is because voluntary disclosure under the applicable leniency programme will allow immunity from or reductions of fines, but whether the same benefit is available in the jurisdiction that received such leniency statement under this Agreement remains to be seen.

Indeed, while no shared evidence can be used to impose sanctions on natural persons, it may well be used to impose an administrative fine on the investigated company. Consequently, companies applying for leniency in one jurisdiction should consider carefully all implications in relation to the other.

The signing of the Agreement is a milestone on the path towards convergence and cooperation in the field of antitrust enforcement. The Agreement is the fifth bilateral cooperation agreement signed by the EU after agreements concluded with the United States (1991), Canada (1999), Japan (2003) and South Korea (2009) (the First Generation Agreements). In addition, the EU recently entered into Memoranda of Understanding with China (2013) and Brazil (2009)2 to further boost bilateral cooperation.

Although successful in providing a structured framework for more efficient international competition law enforcement, the First Generation Agreements allowed the sharing of information only where the companies under investigation consented. The fact that the EU has labelled the Agreement as the first of a "Second Generation" indicates that the EU is inclined to apply a similar approach to future bilateral and multilateral cooperation agreements. In any event, companies will have to consider ever more carefully the implications of antitrust in a more holistic, global approach when engaging with the European competition authorities.

Footnotes

1 The Agreement will apply to the whole EEA region, i.e., the EU's 27 Member States, plus Norway, Iceland and Liechtenstein.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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