Download Competition Policy Implementation Working Group

Competition Policy Implementation Working Group
This Work plan seeks to (i) provide brief background information on the activities of the
Competition Policy Implementation (CPI) Working Group since its inception; (ii)
propose a revised mandate that more accurately describes the current work of the Group;
and (iii) outline a coherent work plan for 2006-2007.
Background
The CPI Working Group, originally called the Capacity Building and Competition Policy
Implementation Working Group, had its genesis at the 2002 Annual Conference in Naples
under the leadership of the European Commission and South Africa. In preparation for the
2003 Annual Conference in Merida, this group conducted a survey of providers and
recipients of technical assistance and prepared a report entitled “Capacity Building and
Technical Assistance: Building Credible Competition Authorities in Developing and
Transition Economies.”
From the Merida conference until the Cape Town Annual Conference in 2006, under the cochairmanship of Brazil (first SEAE and then CADE) and Korea, this report served as the de
facto charter for the Working Group’s ongoing efforts. The Working Group was divided into
three subgroups that focused on three aspects of its mandate as articulated in the 2003
Report: (1) improving technical assistance in competition policy to new agencies; (2)
building support for competition policy and law; and (3) identifying solutions to challenges
confronting the implementation of competition policy and law.
Subgroup One focused on technical assistance. It held a workshop for donors and
providers of technical assistance and developed and conducted a survey of the
attributes of effective technical assistance programs.
Subgroup Two focused first on the set of key challenges identified in the 2003 report
that related to enhancing the standing of competition with civil society and the
business community – first through the media, then with consumers, and finally with
businesses themselves. In the past year, it also sought to ask newer agencies
themselves to identify key challenges that they themselves had encountered and how
they had addressed them.
Subgroup Three took up the challenge of making the case for competition policy,
continuing the work of the former Competition Advocacy Working Group. The
group focused first on competition advocacy in regulated sectors, and then studied
how agencies make the case for competition with the judiciary.
The framework provided by the 2003 Report has served the Working Group well. However,
now that more has been learned about the challenges of implementing a successful
competition policy, particularly but not exclusively in countries that lack a strong
competition culture or history of competition law enforcement, the Working Group believes
that a new mandate is needed.
A Vision for Addressing Issues of Competition Policy Implementation
As the ICN has evolved, different working groups have taken on the most pressing
substantive areas of competition law and policy: mergers, cartels, antitrust enforcement in
regulated sectors, telecommunications, and, most recently, unilateral conduct. Relatively
little emphasis has been placed on the institutions and operational considerations through
which competition law and policy is implemented. While institutional and operational
questions were identified in the 2003 Report and have been addressed tangentially as they
affect the specific work product of other Working Groups, they have not been systematically
explored in their own right. These are important issues in all agencies, but they take on
special importance for newer agencies where organizational issues are still in flux or where
institutional structures may have been copied from elsewhere in government. Even in more
experienced agencies where a degree of institutional stability may have been achieved, it
cannot be assumed that institutional improvement is impossible or unnecessary.
The work of Subgroup Two during the past year provides a partial blueprint for carrying this
work forward. As noted above, that Subgroup conducted a survey of newer competition
agencies to identify, from their perspective, the most difficult challenges to competition
policy implementation. These include an administrative structure that supports sound
decision-making based on law and economics, a civil service structure that allows an agency
to attract good quality staff, an enforcement structure that allows the agency to obtain the
evidence it needs consistent with due process, a judiciary that is capable of enforcing orders
and applying meaningful judicial review, and an initial and ongoing training system for staff.
The Working Group intends to draw on this work, which was prepared principally by newer
agencies, the 2003 Report, and other pertinent learning in order to identify and examine
operational and organizational aspects of competition agencies that are important for
successful competition policy implementation. The Working Group does not believe that the
Subgroup Two Report is necessarily an exhaustive list of the key operational issues or that all
of the topics identified in that Report necessarily deserve study, but does believe that it is a
good place to start. Technical assistance will necessarily remain an essential component of
how competition policy is implemented in newer agencies.
Accordingly, the Working Group recommends that the group’s mandate be revised to include
the analysis of institutional and operational issues that affect the effective implementation of
competition law and policy, with special attention paid to those issues as they affect newer
competition agencies, technical assistance, and the process of competition advocacy.
Work Plan for the Coming Year
For the year leading to the Moscow Annual Conference in 2007, the Working Group will
address three of these issues, two of which will continue ongoing projects, and one of which
will be new.
Subgroup One will continue its examination of technical assistance, and will create a short
and cogent document presenting the Subgroup’s significant findings, learning, and
observations in a way that can be easily used by developing agencies, donors, and providers
of technical assistance as well as continue to implement the pilot project on partnership and
consultation for newer agencies.
Subgroup Two will study the institutional machinery through which competition law is
implemented. Institutional machinery can be seen as encompassing the enforcement
structures and administrative processes used to support sound and efficient decision-making
while incorporating high quality economic and legal analysis, and simultaneously observing
the principles of natural justice/due process.
Subgroup Three will continue its study of the relationships between competition agencies and
the judiciary.
Detailed work plans for each subgroup are attached.