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 23 September 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 31 May and 31 July 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
- This Agreement applies where a Party satisfies the other that
there is reason to believe that the following circumstances are present:
- 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
- The activities in question are impermissible under the competition
laws of the Party in the territory of which the activities are occurring.
- The purposes of this Agreement are to:
- 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
- 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:
- "Adverse effects" and "adversely affected" mean harm caused by
anticompetitive activities to:
- 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
- competition in a Party's domestic or import markets.
- "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.
- "Requested Party" means a Party in the territory of which such
anticompetitive activities appear to be occurring.
- "Competition law(s)" means:
- 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
- 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.
- "Competition authorities" means:
- for the European Communities, the Commission of the European
Communities, as to its responsibilities pursuant to the competition
laws of the European Communities, and
- for the United States, the Antitrust Division of the United
States Department of Justice and the Federal Trade Commission.
- "Enforcement activities" means any application of competition
law by way of investigation or proceeding conducted by the competition
authorities of a Party.
- "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
- 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.
- 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:
- The anticompetitive activities at issue:
- do not have a direct, substantial and reasonably foreseeable
impact on consumers in the Requesting Party's territory, or
- 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;
- 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
- The competition authorities of the Requested Party agree that
in conducting their own enforcement activities, they will:
- devote adequate resources to investigate the
anticompetitive activities and, where appropriate, promptly pursue
adequate enforcement activities;
- 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;
- 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;
- promptly notify the competition authorities of the Requesting
Party of any change in their intentions with respect to investigation
or enforcement;
- 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;
- 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
- 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.
- 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.
- 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 31 May and 31 July 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
- 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.
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
Date: June 4, 1998 /S/ Janet Reno
Date: June 4, 1998 /S/ Robert Pitofsky
For the European Community and for the European Coal and Steel Community
Date: 3.6.98 /S/ Margaret Beckett
Date: 4.6.98 /S/ Karel Van Miert
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