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Competition and the Judiciary Case Studies 2007 Moscow, Russia

Competition and the Judiciary Case Studies 2007 Moscow, Russia. Moscow, May 30th, 2007. Introduction. SG3 - Focus on Competition authority decision implementation The 2006 Report: Objective: diagnosis of the main difficulties Main conclusions:

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Competition and the Judiciary Case Studies 2007 Moscow, Russia

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  1. Competition and the JudiciaryCase Studies2007Moscow, Russia Moscow, May 30th, 2007.

  2. Introduction • SG3 - Focus on Competition authority decision implementation • The 2006 Report: • Objective: diagnosis of the main difficulties • Main conclusions: • “Judiciary’s review of competition authority decisions can shape competition policy” • Results depend delicately on the institutional environment of each jurisdiction • The 2007 Report • Objectives: • To deepen the analysis using cases studies; • To contribute to increase both the scope and the quality of the relation with the judiciary and the effectiveness of decisions.

  3. Methodology of the study CASE STUDIES Term of reference: • Country’s Institutional Framework; • Interaction between Competition Authorities and the Judiciary; 1.1. Investigative Phase; and 1.2. Decision-making process • Difficulties detected in the relationship between competition authorities and the Judiciary. Measures.

  4. Participant Countries Brazil, Canada, Chile, El Salvador, Mexico, Spain and Turkey • Geographical distribution • Wide range of institutional environment: • From de oldest to the newest competition Law • Political regimes: from constitutional monarchy to republic; parlamentary and presidential regimes • Adjudicative and investigative functions • Commom Ground: • Independent Judiciary • Power to review competition authority decisions • Constitutional basis • Competition as a federal/national issue • Independent bodies • College decision (boards: three to fourteen members)

  5. The Judicial review structure Judiciary review: • Specialized courts/chambers • Non-specialized courts • Limits on the judicial review: legality and/or merit • Confirm, upheld and/or send back to the authority • Brazil: review initiates on the first instance – THE ONLY ONE.

  6. Competition Authorities and the Judiciary • Investigative Phase: • Strong investigative powers; • Judicial authorization for some tools: inspection, down raids, wiretapping. • No intervention on the investigative phase, EXCEPT FOR BRAZIL • Revision of Competition Authority final decision: • Observance of procedural issues; • Standards of proof; • Reasons that support the decision: e.g. relevant market, “pro-competitive”; • Fines: calculation, adequacy of the sanction, criteria • Private Civil Suits (?) Judiciary Shaping Competition Policy

  7. Shortcomings and Conclusions • Confirm previous conclusions: lack of specialized knowledgement • Training programs, joint events • Academia • Delay caused by the Judicial intervention • Enforcement: Suspension of fines imposition. • Private actions: prior authority decision required? * Regardless the institutional environment and design and/or judicial structure

  8. Competition Policy Implementation Working Group Co-chairs: Elizabeth Farina:elizabeth.farina@cade.gov.br Ohseung Kwon:kftc@ftc.go.kr Contacts: Patricia Agra: patricia.araujo@cade.gov.br Renata Dantas: renata.dantas@cade.gov.br Subgroup 3 – Competition and the Judiciary Co-Chairs: Elizabeth Farina: elizabeth.farina@cade.gov.br Radoslav Depolo: rdepolo@tdlc.cl

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