Justice Antitrust Division advances investigation, enforcement framework

From the U.S. Department of Justice Antitrust Division In a move that might inform regulatory review of future mergers or acquisitions involving multinational construction materials producers and North American targets, the International Competition Network (ICN) Steering Group has unanimously approved a multilateral framework on procedures among antitrust enforcement agencies globally to promote fundamental due process in competition law investigation and enforcement. The framework is based on the principles of the Antitrust Division’s Multilateral Framework on Procedures (MFP), an initiative that was originally announced by Assistant Attorney General Makan Delrahim at the Council of Foreign Relations in June 2018.

The Antitrust Division, in consultation with a dozen leading competition agencies from around the world, developed the proposal, which was then introduced to the global antitrust community last fall and received overwhelming support. At the request of several partner agencies, the Division agreed to implement the proposed arrangement through the ICN to take advantage of existing structures and reduce administrative burdens. The multilateral framework implements this initiative by utilizing established ICN institutions and processes, and will be open to all national, supranational, and customs territory-specific competition agencies around the world, whether or not a member of the ICN.

The agreement recognizes fundamental principles of transparency and procedural fairness in antitrust enforcement and promotes review mechanisms to ensure that participating agencies abide by these norms, Antitrust Division officials contend. Adopting the substance of the Division-initiated proposal, the framework identifies universal due process principles that are widely accepted across the globe, including commitments regarding non-discrimination; transparency and predictability; proper notice; access to information; meaningful and timely engagement; opportunity to defend; timely resolution of proceedings; confidentiality protections; avoidance of conflicts of interest; access to counsel and privilege; written enforcement decisions and public access to decisions; and, availability of independent review of enforcement decisions. As in the original proposal, the framework complements these substantive norms with review mechanisms designed to ensure meaningful compliance, including consultations, agency reports on implementation, and periodic assessment meetings.

“Adopting the Framework on Competition Agency Procedures is a historic achievement for antitrust enforcement,” said Assistant AG Delrahim. “It sends a clear signal that competition agencies across the globe—despite differences in their structures and proceedings, as well as the legal systems in which they operate—are committed to procedural fairness. We are grateful that the framework approved by the ICN Steering Group, in record time, is equivalent in all respects to the principles of the MFP that was originally proposed by the Antitrust Division. By combining strong substantive principles with meaningful review mechanisms, it goes well beyond anything competition agencies have ever done before.”

Beginning this month, the framework will be open for signature to all national, supranational, and customs territory-specific competition agencies, including ICN member and non-member agencies. It will come into effect at an inauguration ceremony of the charter participants during the ICN annual conference in Cartagena, Colombia.