The Public Competition Enforcement Review - Edition 3

• Editor:

• Shaun Goodman
• Kirkland & Ellis LLP

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While 2010 largely represented a return to 'business as usual' for the US and EU authorities following the challenges of 2009 in responding to the financial crisis, the year also saw the arrival of a number of new players on the antitrust enforcement stage.

Foremost among this new breed is the Competition Commission of India ('CCI'), which took rein of its functions in March 2009, charged with investigating all trade-related competition disputes in India. In its first decision, adopted in December 2010, the CCI rejected a complaint that banks and home finance companies in India had acted anti-competitively by imposing prepayment penalties on borrowers switching lenders to obtain improved rates or facilities. The decision displays an admirable confidence for a new regulator, choosing to adopt as its first decision not only a finding of non-infringement, but also one that has apparently attracted the ire of the banking regulator, the Reserve Bank of India. With a compendium of ongoing cases across a diverse range of sectors including cement, glass, sugar, air transport and oil, the CCI looks set to assert its authority from the outset.

More established, but no less active, is Russia's Federal Antimonopoly Service ('FAS'). According to recent statistics published by the FAS , the authority initiated a staggering 5,437 competition cases during the first six months of 2010, including 1,289 cases related to abuse of a dominant market position, 277 cartel cases, 2,907 cases of anticompetitive actions by public authorities and 427 cases of unfair competition. Notable among the FAS's early successes was its decision of December 2010 finding that three companies engaged in the production and wholesaling of power-generating coal had infringed the Competition Act by participating in anti-competitive agreements aimed at fixing prices for power generating coal and allocating the market among themselves. Criminal proceedings have also been initiated in the same case by the Ministry of the Interior. The case is notable as the first occasion on which the FAS has investigated and proved a cartel existed in close cooperation with the Ministry, and on the basis of materials and information obtained through investigative activities, including court-sanctioned interception of telephone communications.

Not to be outdone, during the last week of 2010, two of China's antitrust enforcement agencies, namely the National Development and Reform Commission ('NDRC') and the State Administration for Industry and Commerce ('SAIC') respectively issued the long-awaited rules implementing the Anti-monopoly Law of the PRC ('AML'). These new rules clarify key areas of the agencies' antitrust enforcement practice, in particular, the constituent elements of monopoly agreements and abuse of dominance, and the defensive justifications potentially available to undertakings. The rules also provide practical guidance on investigative procedures, the leniency programme and delegation of investigation powers, and address certain key concerns. The new rules, which came into force on 1 February 2011, represent a significant milestone in the effective enforcement of the AML.

These developments confirm the increasingly global nature of public antitrust enforcement, and reinforce the importance of cooperation and convergence at all levels, both public and private.

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Acknowledgements

The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book: