Agreement
Between
The Government of the United States of America
and the European Communities
on the Application of Positive Comity Principles
in the Enforcement of their Competition Laws
THE GOVERNMENT OF THE UNITED STATES OF AMERICA of the one part, and THE EUROPEAN
COMMUNITY AND THE EUROPEAN COAL AND STEEL COMMUNITY of the other part (hereinafter
"the European Communities"):
- Having regard to the September 23, 1991 Agreement between the Government of the United
States of America and the European Communities Regarding the Application of Their
Competition Laws, and the exchange of interpretative letters dated May 31 and July 31,
1995 in relation to that Agreement ( together hereinafter "the 1991 Agreement");
-
- Recognizing that the 1991 Agreement has contributed to coordination, cooperation, and
avoidance of conflicts in competition law enforcement;
-
- Noting in particular Article V of the 1991 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 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 1991 Agreement's effectiveness in
relation to such conduct; 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 purpose of this Agreement
1. This Agreement applies where a Party satisfies the other 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 interests of the other
Party; and
-
- (b) the activities in question are impermissible under the competition laws of the Party
in the territory of which the activities are occurring.
2. 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:
- 1. "Adverse effects" and "adversely affected" mean harm caused by
anticompetitive activities to:
-
- (a) the ability of firms 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.
-
- 2. "Requesting Party" means a Party that is adversely affected by
anticompetitive activities occurring in whole or in substantial part in the territory of
the other Party.
-
- 3. "Requested Party" means a Party in the territory of which such
anticompetitive activities appear to be occurring.
-
- 4. "Competition law(s)" means
-
- (a) for the European Communities, Articles 85, 86, and 89 of the Treaty establishing the
European Community (EC), Articles 65 and 66(7) of the Treaty establishing the European
Coal and Steel Community (ECSC), and their implementing instruments, to the exclusion of
Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings,
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.
-
- 5. "Competition authorities" means:
- (a) for the European Communities, the Commission of the European Communities, as to its
responsibilities pursuant to the competition laws of the European Communities, and
- (b) for the United States, the Antitrust Division of the United States Department of
Justice and the Federal Trade Commission.
- 6. "Enforcement activities" means any application of competition law by way of
investigation or proceeding conducted by the competition authorities of a Party.
-
- 7. "Anticompetitive activities" means any conduct or transaction that is
impermissible under the competition laws of a 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
1. 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.
2. 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 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, on request or at
reasonable intervals, of the status of their enforcement activities and intentions, and
where appropriate provide to the competition authorities of the Requesting Party relevant
confidential information if consent has been obtained from the source concerned. 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 six months, or such other time as agreed to by the competition
authorities of the Parties, of the deferral or suspension of enforcement activities by the
competition authorities of the Requesting Party;
- (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.
3. 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.
4. 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 reinstituting 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, where appropriate, coordinate their respective investigations under the
criteria and procedures of Article IV of the 1991 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 VIII of the 1991 Agreement and the exchange
of interpretative letters dated May 31 and July 31, 1995.
ARTICLE VI
Relationship to the 1991 Agreement
This Agreement shall supplement and be interpreted consistently with the 1991
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 United States of America or
the European Communities or of their respective states or Member States.
ARTICLE VIII
Entry Into Force and Termination
1. This Agreement shall enter into force upon signature.
2. 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 at Washington and Brussels, in duplicate, in the English language.
For the Government of the United States of America
- June 4, 1998 [Janet Reno]
- June 4, 1998 [Robert Pitofsky]
For the European Community and for the European Coal and Steel Community
- 3 June 1998 [Margaret Beckett]
- 4 June 1998 [Karel Van Miert]
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