US-led antitrust initiative should come under International Competition Network, Germany's Mundt says

27 November 2018 7:42pm

19 November 2018. By Michael Acton.

A proposed US global antitrust initiative should be implemented through the framework of the International Competition Network to avoid duplicating existing institutions, the head of Germany’s competition authority has told MLex.

Pushing back against claims from the US Department of Justice that the Multilateral Framework for Procedures in Competition Law, or MFP, should be functionally separate from existing international bodies, Bundeskartellamt President Andreas Mundt said it should instead come “under the umbrella of the ICN.”

Mundt, who also chairs the ICN’s steering group, said that the MFP “could be a great chance for the ICN to further develop implementation measures” in competition policy worldwide.

The MFP, unveiled by the DOJ in June, would allow antitrust authorities to sign up to fundamental principles of due process in competition law, as well as submit to an adherence-and-review mechanism. It has been greeted with skepticism in the EU, however, most recently at a conference last week.

“We very much support the aim of the MFP initiative to implement fundamental principles of fair and effective investigative process around the world,” Mundt told MLex, but the ICN provided a ready-made framework for the initiative.

His position echoes prior comments by EU antitrust officials that convergence in antitrust standards would be best achieved through existing organizations such as the ICN and the Organization for Economic Cooperation and Development.

“When I became chair of the ICN steering group one of my key priorities was implementation," Mundt said. "The MFP initiative under the umbrella of the ICN could be a great chance for the ICN to further develop implementation measures,” he said.

— Two key issues —

Mundt said potential legal constraints that could stop some agencies from signing up to a new international agreement could be resolved, as well as bureacracy reduced. “By implementing MFP within the framework of the ICN we could solve two problems: First it would be easier for agencies to sign up, and second, we would not need to establish a new institutional setting,” he said.

At last week’s conference, a senior DOJ official said that Germany’s competition authority had expressed concerns that it might not have the power to sign a new international agreement without central government approval.

Germany is not the only national authority unsure about whether it can sign up to the agreement, MLex understands. Implementing MFP through the ICN, which already counts more than 130 agencies worldwide among its members, would remove this uncertainty, Mundt said.

For example, a “special committee” within the ICN, linked to its steering group, could allow national competition authorities to sign up to MFP commitments, avoiding the need to create a new international secretariat.

— Resolving differences —

US and EU authorities, as well as the ICN, agree on the fundamental aims of the MFP but are divided when it comes to the detail.

At the conference last week, US Deputy Assistant Attorney General Roger P. Alford acknowledged that disagreements with the European Commission and EU competition authorities over the legal and institutional framework of the MFP were slowing its implementation.

Alford insisted that it would “not create a new international organization,” but would consist of “a new multilateral arrangement for adherence to fundamental due process norms by the signatory agencies.”

Following the MFP’s unveiling, ICN staff sent the DOJ proposals for how it could be implemented through existing bodies, and there is an ongoing exchange of views at staff level, MLex understands.

The future of the MFP remains uncertain. According to Alford, as it is currently drafted it has the backing of leading competition agencies in South America, Asia and North America. Other jurisdictions that have been involved in the drafting processing include Brazil, Canada, Chile, Mexico, New Zealand, Singapore, and South Africa.

The US could push ahead with the initiative in a “coalition of the willing,” in a bid to keep the proposal out of the ICN’s formal structures, MLex understands.

The ICN’s steering group has yet to formally debate the MFP proposal but may do so on the margins of an OECD Global Forum in Paris next week, MLex understands.

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