Day 5 - Workshop on Basic Concepts and Principles in Competition Law Enforcement

EU-China Competition Week
Workshop on Basic Concepts and Principles in Competition Law Enforcement
13-14 March 2014, Beijing, China
Minzu Hotel, Donghua Hall
No.51 Fuxingmennei Dajie, Xichang District,Beijing, China

Agenda
14 March 2014


08:30-09:00

Registration
Moderator: Dr Stanley WONG, Special Advisor on Competition Policy, EUCTP (II)

09:00-11:00

Session III – Assessing the evidence: as illustrated by relevant case experiences
Speech on the Practice of the European Commission (DG Competition):

  • at preliminary stage, to determine whether there is sufficient evidence of possible infringement to warrant an investigation:
  • indicators of anti-competitive behaviour in horizontal agreement cases, in vertical agreements cases, abuse cases
  • investigative stage:
  • evidence for defining the relevant market: geographic dimension and product dimension
  • evidence of infringement: horizontal agreement cases, vertical agreement cases, abuse cases
  • Use of economic evidence: what types?

Presented by:
Mr Johan SAHL, Deputy Head of Unit, Cartels and Mergers, Konkurrensverket (Swedish Competition Authority), Stockholm
Mr José-Maria CARPI-BADIA, Deputy Head of Unit (E-2) for Antitrust regarding consumer goods, basic industries, agriculture and manufacturing, Directorate General for Competition, European Commission, Brussels

11:00-11:30

Tea Break

11:30-12:30

Q & A Session
Mr José-Maria CARPI-BADIA, DG Competition, European Commission
Mr Johan SAHL, Swedish Competition Authority

12:30-14:00

Lunch

14:00-15:30

Session IV – Making the decision and imposing the sanction

 

  • preparing the decision:
  • preparing investigative report with reference to evidence
  • elements of an investigative report
  • dealing with the parties
  • access to the file
  • determining the Sanction:
  • guiding principles
  • calculating the fine, if any
  • preparing the formal decision and reasons

Presented by:
Mr Stephan SCHWEIKARDT, Rapporteur, 3rd Decision Division (Healthcare, Chemicals and Textiles), Bundeskartellamt (German Competition Authority), Bonn
Mr José-Maria CARPI-BADIA, DG Competition, European Commission

15:30-16:00

Tea Break

16:00-17:00

Roundtable Discussion and Q & A Session
Participants:
Ms YANG Jie, Director, Anti-Monopoly Legislative Affairs Division, Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau, State Administration for Industry and Commerce, P.R.China
Mr José-Maria CARPI-BADIA, DG Competition, European Commission
Mr Torben TOFT, Principal Administrator (International Relations, A-5), Directorate General for Competition, European Commission, Brussels
Mr Johan SAHL, Swedish Competition Authority
Mr Stephan SCHWEIKARDT, German Competition Authority

17:00-17:15

Closing Remarks
Ms LIU Ye, Deputy Director General, Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau, State Administration for Industry and Commerce, P.R.China
Mr Torben TOFT, DG Competition, European Commission

Day 4 - Workshop on Basic Concepts and Principles in Competition Law Enforcement

EU-China Competition Week
Workshop on Basic Concepts and Principles in Competition Law Enforcement
13-14 March 2014, Beijing, China
Minzu Hotel, Donghua Hall
No.51 Fuxingmennei Dajie, Xichang District,Beijing, China

Agenda
13 March 2014


08:30-09:00
09:00-09:15

Registration
Opening remarks
Ms REN Airong, Director General, Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau, State Administration for Industry and Commerce, P.R.China
Mr Torben TOFT, Principal Administrator (International Relations, A-5), Directorate General for Competition, European Commission, Brussels

Moderator:

Ms LIU Ye, Deputy Director General, Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau, State Administration for Industry and Commerce, P.R.China

09:15-10:45

Session I – Overview of a case investigation
Speech on the Practice of the European Commission (Directorate General for Competition)

  • enforcement priorities: industries, conduct and practices
  • indicators of anti-competitive conduct and practices
  • decision to open an investigation
  • case allocation within the EU: among European Commission and EU Member States national competition authorities (NCAs)
  • conduct of an Investigation: forming a case team with appropriate set of skills; organizing the investigation; types of investigative techniques, when and where to use; preparing investigative reports
  • use of experts: industry knowledge, economic analysis
  • preparing an investigative report
  • cooperation and assistance within the European Competition Network (ECN) with Member States’ NCAs
  • cooperation and assistance from foreign jurisdictions (other than EU Member States)
  • resolving competition concerns without a full investigation: commitments and settlements
  • infringement decision including sanction: drafting decision and reasons

Presented by: Dr Stanley WONG, Special Advisor on Competition Policy, EUCTP (II)

10:45-11:15

Tea Break

11:15-12:00

Session I – Overview of a case investigation

 

Speech on the Practice of SAIC:

  • criteria for selecting cases for investigation
  • allocation of cases between SAIC and local bureaus
  • cooperation and assistance between SAIC and local bureaus
  • investigative techniques
  • resolving competition concerns without infringement decision and sanction
  • source clues and collecting relevant information
  • verification of sources and clues
  • open a case and conduct of an investigation
  • role of leniency
  • drafting investigative reports
  • making infringement decision and sanctions decision

Presented by Mr ZHAO Guobin, Enforcement Division Director, Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau, State Administration and Industry and Commerce

12:00- 12:30

Q & A Session
Participants:
Mr José-Maria CARPI_BADIA, Deputy Head of Unit (E-2 )for Antitrust regarding consumer goods, basic industries, agriculture and manufacturing, Directorate General for Competition, European Commission, Brussels
Mr Johan SAHL, Deputy Head of Unit, Cartels and Mergers, Konkurrensverket (Swedish Competition Authority), Stockholm
Mr ZHAO Guobin, State Administration and Industry and Commerce

12:30-14:00

Lunch

14:00-15:00

Session II – Investigative techniques

 

Speech on the Practice of the European Commission:

  • written requests for information (including documents) to parties and third parties
  • oral interviews of representatives of the parties and third parties
  • relevant Information from public sources
  • unannounced inspections to obtain documents (“dawn raids”)
  • cooperation and assistance with other authorities
  • use of surveys
  • use of experts
  • dealing with parties and third parties about status of investigation
  • preparing record of evidence for use in making merits decision

Presented by Mr Torben TOFT, DG Competition, European Commission

15:00-15:30

Tea Break

15:30-16:00

Q & A Session
Participants:
Mr ZHAO Guobin, State Administration and Industry and Commerce
Mr Torben TOFT, DG Competition, European Commission
Mr Stephan SCHWEIKARDT, Rapporteur, 3rd Decision Division (Healthcare, Chemicals and Textiles), Bundeskartellamt (German Competition Authority), Bonn

Day 3 - Workshop: Case Studies on Automotive Sector and Online Retail Industry

EU-China Competition Week
Workshop: Case Studies on Automotive Sector and Online Retail Industry
11-12 March 2014, Beijing, China
Tangla Hotel, 3rd Floor, Ruby Room
19 Fuxingmenwai Street, Chang’an Avenue West, Beijing 100045, China

Agenda
12 March 2014

08:30-09:00

Registration

Moderator: Dr Stanley WONG, Special Advisor on Competition Policy, EUCTP II

09:00-10:00

Session III – Competition Issues in Online Retailing

  • Defining the relevant market especially the challenges in identifying the relevant geographic market
  • Defining the relevant market involving cross-border online sales
  • Identifying actual and potential market participants as applied to market definition and analysis of potential market entry
  • Prohibition by suppliers of online sales by their retailer-customers

Presented by:
Mr José-Maria CARPI-BADIA, Deputy Head of Unit (E-2) for Antitrust regarding consumer goods, basic industries, agriculture and manufacturing, Directorate General for Competition, European Commission, Brussels

10:00-11:00

Speech on the following topics:

  • Online Hotel Booking case (OFT)
  • Issues and concepts in economic analysis of online sales

Presented by:
Ms YU Yan, Senior Associate, RBB Economics, Melbourne

11:00-11:30
11:30-12:20

 

Tea Break
Q & A Session
Participants:
Mr José-Maria CARPI-BADIA DG Competition, European Commission
Ms YU Yan, RBB Economics
Chinese representatives

12:20-12:30

Closing Remarks
Ms LI Qing, Deputy Director General of Price Supervision and Anti-Monopoly Bureau of National Development and Reform Commission
Mr Torben TOFT, Principal Administrator (International Relations, A-5), Directorate General for Competition, European Commission, Brussels

Day 2 - Workshop: Case Studies on Automotive Sector and Online Retail Industry

EU-China Competition Week
Workshop: Case Studies on Automotive Sector and Online Retail Industry
11-12 March 2014, Beijing, China
Tangla Hotel, 3rd Floor, Ruby Room
19 Fuxingmenwai Street, Chang’an Avenue West, Beijing 100045, China

Agenda
11 March 2014


08:30-09:00
09:00-09:15

Registration
Opening remarks
Mr XU Kunlin, Director General of Price Supervision and Anti-Monopoly Bureau of National Development and Reform Commission
Mr Torben TOFT, Principal Administrator (International Relations, A-5), Directorate General for Competition, European Commission, Brussels

Moderator: Dr Stanley WONG, Special Advisor on Competition Policy, EUCTP II

09:15-10:45

Session I – Competition Law Enforcement in the Automobile and Automobile Parts Sectors: Horizontal Agreements
Speech on the Investigation of Automobile Parts Cartels:

  • detection of cartel activity
  • investigative techniques
  • use of leniency
  • international cooperation in the conduct of the investigation

Presented by: Mr José-Maria CARPI-BADIA, Deputy Head of Unit (E-2) for Antitrust regarding consumer goods, basic industries, agriculture and manufacturing, Directorate General for Competition, European Commission, Brussels

10:45-11:00

Tea Break

11:00-12:00 Q & A session

12:00-13:30

Lunch

13:30-15:30

Session II – Competition Law Enforcement in the Automobile and Automobile Parts Sectors: Vertical Agreements
Speech focusing on the vertical agreements in the automobile and automobile parts sectors. Competition issues relating to the practices of exclusive dealing, geographic restriction, allocation of customer channels and customer types
Importance of economic analysis and its use to analyze vertical agreements and arrangements.
2010 Block Exemption Regulation in Motor Vehicle Sector (Commission Regulation 461/2010) and Supplementary Guidelines on sale and repair of motor vehicles (2010/C 138/05)
Presented by Mr José-Maria CARPI-BADIA, DG Competition, European Commission

15:30-15:45

Tea Break

15:45-16:45

Q&A Session
Participants:
Mr José-Maria CARPI-BADIA, DG Competition, European Commission
Chinese representatives

Day 1 - Workshop on Behavioural Remedies in Merger Cases

EU-China Competition Week
Workshop on Behavioural Remedies in Merger Cases
Monday, 10 March 2014
Ministry of Commerce, Beijing
No.2 Dong Chang'an Avenue, Beijing 100731, China

Agenda


08:30-09:00
09:00-09:15

Registration
Welcome and Opening remarks
Mr WU Zhenguo, Deputy Director General of Anti-Monopoly Bureau Ministry of Commerce, People’s Republic of China, Beijing
Mr Torben TOFT, Principal Administrator (International Relations, A-5), Directorate General for Competition, European Commission, Brussels

09:15-12:00
(with a break as deemed appropriate by the co-moderators)

Roundtable I – Criteria for selecting behavioural remedies: Principles and case experiences

  • Format: Presentation of 40 minutes by each lead participant and then followed by discussion

Lead participants:

  • Mr Thomas DEISENHOFER, Head of Unit (Mergers, E-4), Mergers in Basic Industries, Manufacturing and Agriculture, DG Competition, European Commission, Brussels
  • Ms Carole BEGENT, Deputy Head of Legal and Head of International, Competition Commission (United Kingdom), London (As of 1 April 2014, Senior Legal Director, Markets and Mergers, Competition and Markets Authority (United Kingdom))
  • Mr QIAN Xiaoqiang, Anti-Monopoly Bureau, Ministry of Commerce, P.R.C. , Beijing
  • Co-moderators:
  • Mr ZHU Zhongliang, Divisional Director, Anti-Monopoly Bureau, Ministry of Commerce, P.R.C., Beijing
  • Dr Stanley WONG, Special Advisor on Competition Policy, EUCTP II
  • Background

1. When competition concerns are identified in a merger investigation, the focus turns to choosing the appropriate set of remedies to address the identified concerns.
2. In the case experience of merger enforcement bodies around the world, the remedy of prohibiting a merger transaction with competition concerns is rarely used. Instead, a merger with competition concerns is cleared subject to the fulfilment by the merging parties of certain conditions. Conditions can be categorized as structural remedies or behavioural remedies.
3. Structural remedies include
-sale of a company,
-sale of a business which is an unincorporated division of a company,
-sale of assets,
-grant of a permanent, irrevocable license to use intellectual property rights as brands, trademarks, technology
4. Behavioural remedies include obligations
-to maintain existing production or distribution operations,
-to supply goods or services to existing customers or future customers,
-to supply at defined prices or prices below a price cap, or to limit the level of price increase
-to supply for a defined period or indefinitely,
-to supply technical specifications or other information to customers or competitors,
-to license intellectual property rights such as brands, trademarks, technology on stipulated terms such as FRAND or RAND
5. There is a consensus that remedies to address competition concerns should be effective, timely, practicable and enforceable. Yet, there are institutional differences in the selection of merger remedies in identical or similar cases. Some merger enforcement bodies such as the European Commission have an institutional preference for structural remedies. Others such as MOFCOM often choose a mix of structural remedies and behavioural remedies to address competition concerns.

  • Questions:

What factors explain the differences in institutional preferences in merger remedies?
Are there differences in views about competition concerns?
Are there differences in views about which remedies are practicable such as if there are operations outside of the jurisdiction?
Are there differences in views about the enforceability of remedies?
Are the views and actions of enforcers in other jurisdictions relevant in the selection of merger remedies?

  • Designing effective behavioural remedies
  • Questions:

What types of competitive concerns are best addressed through behavioural remedies?
How to design effective behavioural remedies?
What are the key elements of a behavioural remedy?
How to efficiently evaluate behavioural remedies proposed by merging parties?

  • Specific case experiences

1. How a merger enforcement body deals with the choice of structural versus behavioural merger remedies can only be appreciated through a review of its case experiences. In reviewing cases, it is relevant to consider not only the rationale for selecting a specific remedy but also the reasoning for rejecting other possible remedies.
2. In reviewing selected case experiences, the following questions should be considered, as appropriate:

  • Questions:

Where only structural remedies were adopted but behavioural remedies were considered, explain why behavioural remedies rejected?
Where only behavioural remedies were adopted but structural remedies were considered, explain why structural remedies rejected?
Where both structural and behavioural remedies were adopted, why were both types of remedies adopted?

12:00-13:30

Lunch

14:00-16:45
(with a break as deemed appropriate by the co-moderators)

Roundtable II – Trustees in implementing and /or monitoring merger remedies
Format: Presentation of 40 minutes by each lead participant and then followed by discussion

  • Lead participants:
  • Mr Thomas DEISENHOFER, Head of Unit (Mergers, E-4), Mergers in Basic Industries, Manufacturing and Agriculture, DG Competition, European Commission, Brussels
  • Ms Carole BEGENT, Deputy Head of Legal and Head of International, Competition Commission (United Kingdom), London (As of 1 April 2014, Senior Legal Director, Markets and Mergers, Competition and Markets Authority (United Kingdom))
  • Mr YE Jun, Divisional Director, Anti-Monopoly Bureau, Ministry of Commerce, P.R.C., Beijing
  • Co-moderators:
  • Mr ZHU Zhongliang, Divisional Director, Anti-Monopoly Bureau, Ministry of Commerce, P.R.C., Beijing
  • Dr Stanley Wong, Special Advisor on Competition Policy, EUCTP II

Format: Presentation of 40 minutes by each lead participant and then followed by discussion

  • Background

1. With some remedies, it may be necessary to have a trustee appointed. A trustee may be needed to implement a remedy. If a remedy imposes continuing obligations on the parties, a trustee may be needed to ensure compliance with the obligations.
2. In implementing a remedy, a trustee may be appointed to conduct the sale of assets where the parties are unable to sell the assets.
3. With some remedies, a trustee may be appointed to monitor compliance with any continuing obligations especially where technical knowledge is required to understand the obligations.

  • Questions:

When is it necessary to appoint a trustee to ensure the implementation of a remedy?
When is it necessary to appoint a trustee to monitor compliance with the obligations imposed by a merger remedy?
What are the key elements in designing an effective agreement to manage the relationship between the parties, the trustee and the enforcer?

  • Specific Case Experiences

In reviewing case experiences, the following questions should be considered:

  • Questions:

In cases where a trustee was appointed, why was it necessary to appoint a trustee? What did the trustee do?
In cases where there are continuing obligations (behavioural remedy), why was it necessary to appoint a trustee to monitor compliance?
In cases where there are continuing obligations (behavioural remedy) but no implementation trustee is appointed, why was a trustee not needed?
Where a trustee is appointed, what types of problems arise in managing the relationship among the trustee, the parties and the enforcer?

16:45-17:00

Closing Remarks