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Interactions between competition authorities and sector regulators – MARQUEZ – December 2022 OECD discussion

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Interactions between competition authorities and sector regulators – MARQUEZ – December 2022 OECD discussion

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This presentation by Pablo Márquez (Partner, ECIJA Colombia) was made during a discussion on the Interactions between competition authorities and sector regulators at the 21st meeting of the OECD Global Forum on Competition on 2 December 2022. More papers and presentations on the topic can be found out at https://oe.cd/icar.
This presentation was uploaded with the author’s consent.

This presentation by Pablo Márquez (Partner, ECIJA Colombia) was made during a discussion on the Interactions between competition authorities and sector regulators at the 21st meeting of the OECD Global Forum on Competition on 2 December 2022. More papers and presentations on the topic can be found out at https://oe.cd/icar.
This presentation was uploaded with the author’s consent.

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Interactions between competition authorities and sector regulators – MARQUEZ – December 2022 OECD discussion

  1. 1. Collaboration is difficult Pablo Márquez
  2. 2. 2 Legal framework for cooperation – Ideal Cooperation Regulators take an active part of CA investigations (providing evidence or expertise). CA actively participate in the Regulatory process by discussing effects of regulation in market dynamics (advocacy). Regulators participate in merger control investigations and provide information as sources for theories of harm or tools for analysis
  3. 3. 3 MOUs are essential to collaborate but can’t cover all issues MOUs are regularly regarded as a great tool to enhance collaboration and coordination among regulators and CAs - MOUs may help to find common grounds regarding objectives, substantive rules and rules of procedure. - MOUs can face and prevent hurdles that can happen during the process of collaboration, including issues related to access to confidential information and joint action. - MOUs help planning and introduce an operational framework but cannot cover what the law does not allow.
  4. 4. 4 But MOUs are easy to sign hard to execute MOUs, informal cooperation and information systems lack authority that can make and enforce binding agreements. Informal cooperation is not transparent with stakeholders in the market. There are several issues that prevent a CA/Regulator to push for mutual collaboration under an MOU: - lack of resources or asymmetric resources granted by each authority - the regulator is too slow to respond to requests for assistance when the CA has strict deadlines. - Financial commitment by the parties to the MOU is not discussed.
  5. 5. 5 Antagonist views and roles of regulated markets Antagonists' policies and goals of CAs and Regulators may reduce the incentives to cooperate: - Competition advocacy tools, in some jurisdictions, create an antagonist role among CA and regulators - Regulators’ approach – we “know better” our market reduces smoothness of cooperation - Legal goals: Consumer welfare vs industry’s stability
  6. 6. 6 The process of cooperation is essential for effective collaboration The lack of an operational framework for cooperation is detrimental to effective collaboration between authorities. - Who calls who? - When is collaboration triggered? - What are the limits of collaboration and coordination? - To what extent the collaboration is permitted and promoted in the legal system? - Is collaboration transparent with third parties?
  7. 7. 7 Third parties could help trigger coordination Third parties (including counsels of the regulated) are not allowed to push for coordination among the regulator and the competition authority. Counsels of undertakings are a great “tool” to push for further coordination to identify areas where contradictions may harm the ecosystem Third party participation and transparency in the cooperation process is essential. But, how?
  8. 8. 8 Third parties could be trusted Going beyond regulatory consultation, being open to allow stakeholders to promote coordination to improve both the quality of outcomes from MC, investigations and regulations. Allowing stakeholders to ignite the process of cooperation builds: • Legitimacy: public engagement creates legitimacy and evidence of successful governance. • Credibility: establish public trust by creating better ways to link with stakeholders. • Confidence: opens avenues for stakeholders to cover any concern.
  9. 9. 9 Grant tools for third parties This does not advocate for further processes of regulatory consultation, but government intervention awareness. MOUs could promote: - Publication of meetings among regulators and CA - Specific channels for stakeholders to trigger further consultation to the regulator Not all Regulators have signed an MOU - Provide guidance on how to trigger Sector specific regulators in investigations - Be open to bring in the regulators when regulation is analysed
  10. 10. 10 1) Cooperation is difficult, but as any difficult task, process and discipline make it simpler. Promotion of technical cooperation through secondments, MOUs, shared data rooms and so on, as well as voluntary participation in merger control and behavioral investigations by regulators may help in providing more certainty to CA and regulators decisions. 2) Third parties and counsels for the regulated also have a very important role in that from the very beginning they could bring to the investigations or mergers control proceedings the plea to cooperate and provide technical knowledge necessary for the process to reach a better conclusion. 3) Informal collaboration does not create trust, as it may encourage scenarios in which the authorities produce and opinion without leaving a record and without third parties being able to consult, question, or find the opinion of the competition or regulator. Take aways
  11. 11. www.ecija.com España | Portugal | EEUU | Chile | Panamá | Costa Rica | Honduras | Nicaragua | República Dominicana | Guatemala | El Salvador | Puerto Rico | México | Brasil | Ecuador | Argentina

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