Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws
Date: 1998-06-04
Institutions: European Coal and Steel Community, European Community, United States
Subjects: United States, competition law, competition policy, cooperation agreement (EU), exchange of information

L 173/28

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Official Journal of the European Communities

18. 6. 98

between the European Communities and the Government of the United States of
America on the application of positive comity principles in the enforcement of their
competition laws

AGREEMENT

THE EUROPEAN COMMUNITY AND THE EUROPEAN COAL AND STEEL COMMUNITY

of the one part (hereinafter ‘the European Communities’), and

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

of the other part,

Having regard to the 23 September 1991 Agreement between the European Communities and the Govern-
ment of the United States of America 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’),

Recognising 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 anti-competitive 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

2.

The purposes of this Agreement are to:

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) 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
anti-competitive activities for which the competition
laws of one or both Parties can provide a remedy, and

(a) anti-competitive 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.

(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 deal with anti-competitive activities that occur prin-
cipally in and are directed principally towards the
other Party’s territory, where the competition author-
ities of
the other Party are able and prepared to
examine and take effective sanctions under thier law
to deal with those activities.

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Official Journal of the European Communities

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Article II

Definitions

As used in this Agreement:

1.

‘Adverse effects’ and ‘adversely affected’ mean harm
caused by anti-competitive 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.

is adversely
‘Requesting Party’ means a Party that
affected by anti-competitive 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 anti-competitive activities appear to be
occurring.

4.

‘Competition law(s)’ means

the Treaty

(a) for the European Communities, Articles 85, 86, and
89 of
establishing the European
the
Community (EC), Articles 65 and 66(7) of
Treaty establishing the European Coal and Steel
Community
implementing
instruments, to the exclusion of Council Regula-
tion (EEC) No 4064/89 on the control of concen-
trations between undertakings; and

and their

(ECSC),

(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 protec-
tion 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 responsibili-
ties pursuant to the competition laws of the Euro-
pean Communities, and

(b) for the United States, the Antitrust Division of the
United States Department of Justice and the
Federal Trade Commission.

6.

7.

‘Enforcement activities’ means any application of
competition law by way of investigation or proceeding
conducted by the competition authorities of a Party.

‘Anti-competitive activities’ means any conduct or
transaction that is impermissible under the competi-
tion laws of a Party.

Article III

Positive comity

and,

to remedy

if warranted,

The competition authorities of a Requesting Party may
request the competition authorities of a Requested Party
to investigate
anti-
competitive 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 enforce-
ment 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 enforce-
ment activities during the pendency of enforcement ac-
tivities of the Requested Party.

2.
The competition authorities of a Requesting Party
will normally defer or suspend their own enforcement
in favour of enforcement activities by the
activities
competition authorities of the Requested Party when the
following conditions are satisfied:

(a) the anti-competitive activities at issue:

(i) do not have a direct, substantial and reasonably
the
on

consumers

foreseeable
Requesting Party’s territory; or

impact

in

(ii) where the anti-competitive activities do have such
an impact on the Requesting Party’s consumers,
they occur principally in and are directed prin-
cipally 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 ade-
quately remedied pursuant to the laws, procedures,
and available remedies of the Requested Party. The
Parties recognise that it may be appropriate to pursue
separate enforcement activities where anti-competitive
activities affecting both territories justify the imposi-
tion of penalties within both jurisdictions; and

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Official Journal of the European Communities

18. 6. 98

(c) the competition authorities of

the Requested Party
agree that in conducting their own enforcement activ-
ities, they will:

(i) devote adequate resources to investigate the anti-
competitive 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

of

and intentions,

competition authorities

the
Requesting Party, on request or at reasonable
intervals, of the status of their enforcement activ-
appropriate
ities
provide to the competition authorities of
the
Requesting Party relevant confidential informa-
tion if consent has been obtained from the source
concerned. The use and disclosure of such infor-
mation shall be governed by Article V;

and where

(iv) promptly notify the competition authorities of
the Requesting Party of any change in their in-
tentions with respect to investigation or enforce-
ment;

(v) use their best efforts to complete their investiga-
tion and to obtain a remedy or initiate proceed-
ings within six months, or such other time as
agreed to by the competition authorities of the
Parties, of the deferral or suspension of enforce-
ment activities by the competition authorities of
the Requesting Party;

(vi) fully inform the competition authorities of the
Requesting Party of the results of their investiga-
tion, and take into account
the
competition authorities of the Requesting Party,
prior to any settlement, initiation of proceedings,
adoption of remedies, or termination of the in-
vestigation; and

the views of

(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 enforce-
ment activities shall inform the competition authorities of
the Requested Party of its reasons.

the competition authorities of

or suspend independent enforcement activities from later
initiating or reinstituting such activities. In such circum-
stances,
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
the criteria and
procedures of Article IV of the 1991 Agreement.

respective investigations under

Article V

Confidentiality and use of information

the

Where pursuant
the competition
to this Agreement
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,
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.

competition authorities

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 re-
quiring any change in the laws, of the European Com-
munities or the United States of America or of their
respective Member States or states.

Article VIII

Entry into force and termination

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 competi-
tion authorities of a Requesting Party that choose to defer

This Agreement shall enter into force upon signa-

1.
ture.

This Agreement shall remain in force until 60 days
2.
after the date on which either Party notifies the other
Party in writing that it wishes to terminate the Agree-
ment.

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Official Journal of the European Communities

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IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this Agreement.

DONE at Brussels and Washington, in duplicate, in the English language.

For the European Community and for the European Coal and Steel Community

Date:

Date:

For the Government of the United States of America

Date:

Date: