On 2 September 2020, the US Department of Justice Antitrust Division (DoJ), the US Federal Trade Commission, the UK Competition and Markets Authority (CMA), the Australian Competition and Consumer Commission, the New Zealand Competition Commission, and the Canadian Competition Bureau signed a framework agreement to improve cooperation in competition investigations.

The ‘Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities’ (the Five Eyes Framework) includes (i) a Memorandum of Understanding which, according to the DoJ press release, is intended to ‘reinforce and improve existing case coordination and collaboration tools’ among the authorities; and (ii) a Model Agreement that is expected to serve as a template for the authorities to negotiate and implement bilateral agreements to further enhance cooperation. US Assistant Attorney General Makan Delrahim stated that ‘[t]he Framework sets a new standard for enforcement cooperation, strengthening our tools for international assistance and evidence gathering in the increasingly digital and global economy.’

The Framework contains non-binding mechanisms to enhance cooperation between the authorities. Although the Framework does not create new legal powers or obligations, it does formalise cooperation that currently takes place on a less formal basis, creating default expectations as to how the authorities will share information and cooperate. The impact of the Five Eyes Framework may be particularly significant in antitrust cases, where authorities already have greater legal powers to share confidential information. More generally, the Framework sends a signal to companies that they can expect authorities to liaise more closely and coordinate their enforcement actions in future. The Framework also signals a greater willingness to cooperate on questions of policy, and envisages a ‘Framework Committee’ to administer the Framework, potentially anticipating an Anglosphere counterpart to the European Competition Network (ECN) and International Competition Network (ICN). The CMA will no longer form part of the ECN or benefit from the EU’s series of bilateral agreements with other countries after the end of the Brexit transition period on 31 December 2020[1] and has expressed a desire to enter new co-operation agreements to replace and supplement the information-sharing mechanisms that currently exist.

Existing International Cooperation Mechanisms

The Five Eyes Framework explains that the matters investigated by the signatory authorities ‘increasingly require engagement with counterpart competition authorities in other jurisdictions’.[2] Cartel investigations and merger reviews that involve multinational corporations, for example, are often undertaken in several jurisdictions by different authorities in parallel. Expedience and efficiency require cooperation and information sharing between these authorities. International cooperation between competition authorities has accordingly been ‘at the core’ of the Organisation for Economic Co-operation and Development’s agenda for many years.[3]

Competition authorities around the world already coordinate in a number of ways. This coordination can take various forms, including bilateral cooperation agreements (e.g. the 1995 US–Canada Agreement, the 1991 EU-US Agreement, and the 1999 Canada-EU Agreement), multilateral arrangements (e.g. the ECN , ICN, European Competition Authorities,[4] the Nordic Agreement on Cooperation in Competition Cases,[5] and the COMESA Competition Commission), memoranda of understanding (e.g., the EU-Brazil Memorandum of Understanding on Cooperation), non-binding frameworks, or ad hoc arrangements (e.g., waivers obtained from merging parties to enable concurrently reviewing authorities to exchange information[6]).

These arrangements cover various aspects of investigations, such as agency procedures,[7] cooperation in merger reviews,[8] and information sharing in cartel investigations.[9] In addition, organisations such as the ECN and ICN engage with policy issues and conduct competition advocacy. A recent example of this work is the ECN’s joint statement on the application of competition law during the COVID-19 crisis, which anticipated, and in some cases permitted, cooperation between firms to ensure continuation of supply during the crisis.[10] The ICN published a similar statement.[11] The Five Eyes Framework is designed to ‘complement’ rather than ‘replace’ existing cooperation arrangements that the signatories are party to.[12]

The Five Eyes Framework

The Five Eyes Framework extends to merger control, cartels, and abuse of dominance. The Framework differs from some of the previous cooperation arrangements that its signatories have entered into, such as by setting out a non-legally binding ‘expectation’ of mutual assistance and cooperation as a default, and facilitating future formal agreements (bilateral or multilateral) by including a Model Agreement for deeper cooperation between signatories.

The Memorandum of Understanding signed by the authorities defines two types of information. First, there is information held by a signatory, which it is not prohibited from disclosing by law, but which is normally treated as non-public (Agency Confidential Information).[13] Second, there is information related to an investigation that is not in the public domain, which has been either compulsorily acquired by, or provided voluntarily to, a signatory and that the signatory is required to protect from disclosure (Investigative Information).[14]

The Memorandum contains an ‘expectation’ that the signatories will ‘provide assistance and cooperation … including with respect to sharing public information, Agency Confidential Information and Investigative Information permitted to be disclosed by law or by waiver of confidentiality.’[15] In addition, signatories are ‘expected’ to provide mutual assistance and cooperation, including with respect to: sharing information (including information that is not in the public domain); coordinating investigative activities; facilitating voluntary witness interviews; and providing copies of publicly available records.

These ‘expectations’ are, however, subject to the signatories’ national laws.[16] In the UK, as a general rule, business secrets and information relating to the affairs of an individual cannot be disclosed unless a statutory ‘gateway’ applies. Under one of these gateways, the CMA may disclose specified information to an overseas authority for the purpose of enforcing legislation through criminal or civil proceedings (which excludes most mergers investigations). The CMA may also seek the parties’ consents to disclose their information to an overseas authority under the terms of a confidentiality waiver.[17]

As noted, the Five Eyes Framework also contains a Model Agreement ‘in an effort to assist any Participants that wish to pursue enhanced cooperation agreements or arrangements between or among themselves (bilaterally or multilaterally) to pursue the maximum level of assistance possible.’[18] The Model Agreement is intended to be ‘broadly reciprocal’.[19] While the Model Agreement is subject to national law and may be amended by the agencies in question, it is intended to address (i) the nature of the assistance that can be requested; (ii) the process for making a request for assistance; (iii) the maintenance of the confidentiality of any Investigative Information; and (iv) the scope of permitted use of any Investigative Information shared by the participants. The ‘Investigative Assistance’ envisaged under the Model Agreement includes ‘disclosing, providing or discussing Investigative Information’, and ‘obtaining Investigative Information at the request of [another signatory authority’, including (i) taking testimony and witness statements; (ii) obtaining documents and records; (iii) locating or identifying persons or things; and (iv) executing searches and seizures.[20]

Finally, the Framework envisages the exchange of information, ideas and experience on competition policy issues, competition advocacy and outreach (to consumers, industry, and government), and best practices.[21] Such cooperation could take the form of seconding officials, experience-sharing events, and collaborating on projects of mutual interest.

From Europe To The Anglosphere

The European Commission and national competition authorities of EU Member States form the ECN. The ECN exists to provide a forum for cooperation between national authorities, enabling them to inform each other of new cases and anticipated enforcement decisions, coordinate investigations, exchange evidence, and discuss various issues of common interest.[22] Under Regulation 1/2003,[23] ECN members can exchange confidential information without parties’ consent in cartel or abuse of dominance investigations. Regulation 1/2003 also enables a national authority or the European Commission to ask another national authority to carry out an inspection or fact-finding measure on its behalf, while the ‘Network Notice’ facilitates the re-allocation of cases to the best -placed authority to act.[24]

Throughout the Brexit transition period, the CMA and UK sectoral regulators have had access to the ECN—and the information shared within the EC— as if the UK were an EU member state (though their participation in meetings is by invitation only, invitations are only extended where discussions concern the UK, and the CMA is unable to vote at meetings it is invited to).[25] After December 31, 2020, when the Brexit transition period expires, the CMA will no longer have access to information shared within the ECN (unless an agreement is reached to the contrary). Nor will the UK benefit from the EU’s bilateral cooperation agreements with third-countries, such as the US, Canada, Japan, and Switzerland (which, in the case of the EU’s arrangement with Japan, is in the process of being strengthened[26]).[27]

After the transition period expires, many of the merger and antitrust investigations previously undertaken by the Commission will fall to the CMA to examine, either instead of or as well as the European Commission. At the same time, the increased global scope and complexity of these matters will require deeper cooperation between the CMA and its European counterparts. To maintain existing benefits of cooperation—and to maintain its status as a leading enforcement agency—the CMA will need to strike a series of bilateral agreements with other competition authorities to maintain existing levels of cooperation. As CMA CEO Andrea Coscelli said, ‘As the UK prepares to leave the EU and the CMA embraces its expanded role, it is even more important for [the CMA] to forge strong relationships across the world, and work with partners both closer to home and further afield.’[28] In this sense, the Five Eyes Framework is a first step in maintaining the CMA’s status as a major global agency in a post-Brexit world.

The Five Eyes Framework does not, however, address the gap in the UK’s network that will be left by the CMA losing access to information shared within the ECN and the benefits of the EU’s bilateral arrangements with third countries that are not signatories to the Five Eyes Framework. This loss of access was identified by the National Audit Office in a 2018 examination of the progress made by the CMA in ensuring that the UK competition regime was ready for Brexit.[29] The CMA and the UK government did have ‘plans to mitigate the potential loss of access’ to the ECN and bilateral EU and third country arrangements, such as, in the absence of a UK-EU arrangement, seeking to ‘set up bilateral arrangements with individual member states.’[30] The CMA has previously argued that some areas of competition enforcement should be subject to a formal UK-EU cooperation regime, namely notification and coordination of investigative measures; bilateral and multilateral evidence sharing (including confidential information) to facilitate civil and criminal enforcement by overseas agencies; obtaining evidence to assist overseas enforcers; and enforcement of investigative measures and remedies.[31] Dr Coscelli recently reiterated the CMA’s view that it is ‘essential for competition authorities to work with each other to share knowledge and expertise’, especially in light of the ‘borderless markets’ that increasingly come under review by competition authorities.[32]

In addition to pursuing formal bilateral or multilateral agreements with other Five Eyes authorities (based on the Model Agreement), the CMA can therefore be expected to take steps to ensure that it continues to benefit from cooperation with the European Commission and national competition authorities.

Other Implications

The Five Eyes Framework does not change authorities’ existing information-sharing mechanisms. It does, however, create an obligation to cooperate where possible. In this regard, it goes further than many other existing co-operation agreements. For example, the Five Eyes Framework can be contrasted with the 1995 US-Canada Agreement, which states only that ‘The parties acknowledge that it is in their common interest to cooperate in competition matters … [and] will consider coordination of their enforcement activities’. The Model Agreement anticipates even deeper cooperation between its signatories, which would bolster and accelerate existing cooperation on a more formal—and legally binding—basis in future.

The Five Eyes Framework is unlikely to change practices in merger control, where waivers will still be required before the agencies are able to share confidential information. The Five Eyes Framework is likely to have a more significant impact in antitrust investigations, where the agencies already have greater powers to share information without parties’ consent. The Model Agreement envisages cooperation in particular on measures that are more commonly associated with antitrust investigations, such as witness statements, locating persons or things, and executing search and seizure powers. [33]

[1]   The CMA formally left the ECN on ‘Brexit’ day on 31 January 2020. During the transition period, the CMA and concurrent regulators have continued to have access to information shared amongst the ECN as if the UK were still a member state. Under the Withdrawal Agreement, however, the participation of the CMA and concurrent regulators in ECN meetings was by invitation only, and the CMA and concurrent regulators had no right to vote in these meetings. See CMA, UK exit from the EU: Guidance on the functions of the CMA under the Withdrawal Agreement, CMA113 (28 January 2020), para. 4.7, https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/864371/EU_Exit_guidance_CMA_web_version_final_—2.pdf. After 31 December 2020, when the transition period expires, the CMA and concurrent regulators will no longer have access to the information shared amongst the ECN and will no longer be invited to participate in ECN meetings (subject to any agreement reached between now and then).

[2]   Five Eyes Framework, para. 1.3.

[3]   OECD, Recommendation of the OECD Council Concerning International Co-operation on Competition Investigations and Proceedings (2014), at p. 2 https:// www.oecd.org/daf/competition/2014-rec-internat-coop-competition.pdf.

[4]   The European Competition Authorities (EC) consists of the competition authorities in the European Economic Area. See, e.g., European Competition Authorities, The Exchange of Information Between Members On Multijurisdictional Mergers Procedures Guide, https://ec.europa.eu/competition/ecn/ eca_information_exchange_procedures_en.pdf.

[5]   See Finnish Competition and Consumer Authority, Agreement on Cooperation in Competition Cases (8 September 2017), https://www.kkv.fi/en/facts-and- advice/competition-affairs/international-cooperation-related-to-competition-affairs/nordic/agreement-on-cooperation-in-competition-cases/.

[6]   See, e.g., International Competition Network, Model Confidentiality Waiver for mergers (2005), https://www.internationalcompetitionnetwork.org/portfolio/ model-confidentiality-waiver-for-mergers/.

[7]See, e.g., International Competition Network, ICN Framework on Competition Agency Procedures (2019), https://www.internationalcompetitionnetwork.org/ wp-content/uploads/2019/04/ICN_CAP.pdf

[8]   See, e.g., International Competition Network, International Competition Network’s Framework for Merger Review Cooperation (2012), https://www. internationalcompetitionnetwork.org/wp-content/uploads/2018/05/MWG_FrameworkforMergerReviewCooperation.pdf.

[9]   See, e.g., International Competition Framework, Proposal for Establishing the ICN Framework for Promotion of Sharing Non-Confidential Information for Cartel Enforcement (2016), https://www.internationalcompetitionnetwork.org/wp-content/uploads/2018/05/CWG_nonConfidentialInfoFramework.pdf.

[10] European Competition Network, Antitrust: Joint statement by the European Competition Network (ECN) on application of competition law during the Corona crisis (2020), https://ec.europa.eu/competition/ecn/202003_ joint-statement_ecn_corona-crisis.pdf.

[11] International Competition Network, ICN Steering Group Statement: Competition during and after the COVID-19 Pandemic (2020), https://www. internationalcompetitionnetwork.org/wp-content/uploads/2020/04/SG-Covid19Statement-April2020.pdf.

[12] Five Eyes Framework, Memorandum of Understanding, para. 1.1.

[13] Five Eyes Framework, Memorandum of Understanding, Definitions.

[14] Ibid.

[15] Five Eyes Framework, Memorandum of Understanding, Article 3.2.

[16] See, e.g., Five Eyes Framework, Memorandum of Understanding, Article 6.2 (‘The Agreement does not create any new legal rights or obligations under national law’); Five Eyes Framework, Model Agreement, Article 3.2(a) (‘Information can be shared only to the extent permitted by national law or relevant consents’).

[17] Enterprise Act 2002, Section 241(1). See further CMA, Transparency and disclosure: Statement of the CMA’s policy and approach, CMA6 (January 2014), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/270249/CMA6_Transparency_Statement.pdf.

[18] Five Eyes Framework, Memorandum of Understanding, para. 4.3

[19] Five Eyes Framework, Memorandum of Understanding, para. 4.5.

[20] Five Eyes Framework, Model Agreement, para. 3.3

[21] Five Eyes Framework, Memorandum of Understanding, para. 3.1.

[22] European Commission, European Competition Network, https://ec.europa.eu/competition/ecn/more_details.html. See also Commission Notice on cooperation with the Network of Competition Authorities (Official Journal C 101, 27.04.2004, p.43-53) (Network Notice).

[23] Article 12, Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102] of the Treaty (Official Journal L 1, 04.01.2003, p.1-25) (Regulation 1/2003).

[24] European Commission, Cooperation in merger control, https://ec.europa.eu/competition/ecn/mergers.html.

[25] See fn. 1.

[26] See European Commission, Competition: EU and Japan start negotiations for a 2nd generation cooperation agreement in the field of competition (2017), https:// ec.europa.eu/competition/international/bilateral/japan.html.

[27] For a full list of the European Commission’s bilateral arrangements with third-countries, see European Commission, Bilateral relations on competition issues, https://ec.europa.eu/competition/international/bilateral.

[28] CMA, Press Release, CMA to increase competition cooperation with international partners (2 September 2020), https://www.gov.uk/government/news/cma- to-increase-competition-cooperation-with-international-partners.

[29] National Audit Office, Exiting the EU: Consumer protection, competition and state aid (6 July 2018), https://www.nao.org.uk/wp-content/uploads/2018/07/ Exiting-in-the-EU-consumer-protection-competition-and-state-aid.pdf.

[30] Ibid, para. 3.21.

[31] House of Lords European Union Select Committee, Brexit: competition and State aid, Chapter 5, para. 151, https://publications.parliament.uk/pa/ld201719/ ldselect/ldeucom/67/6708.htm.

[32] Speech by Andrea Coscelli, CEO of the CMA, at Fordham University, New York, New York (October 2020).

[33]    Five Eyes Framework, Model Agreement, para. 3.3.