This note summarises the key similarities and differences between the competition regimes in the European Union, the United States, India and the United Kingdom.
Competition Authorities and Appeals
The principal competition authorities in the European Union (the EU), India and the UK are:
- the Directorate General (Competition) of the European Commission,
- the Competition Commission of India (the CCI), and
- the Competition and Markets Authority (the CMA) in the UK.
All three are administrative bodies whose decisions can be appealed to the courts.
There are two principal competition authorities in the US: the Antitrust Division of the Department of Justice (the DoJ) and the Federal Trade Commission (the FTC).
- The DoJ has exclusive jurisdiction over American criminal antitrust prosecutions (i.e. cartel prosecutions) and shares jurisdiction with FTC over civil antitrust cases. (There is no clear statement explaining how the two bodies decide which will lead any particular investigation.) Its cases are prosecuted, and appealed if necessary, in the federal courts.
- If the FTC carries out an investigation and finds fault then the complaint is heard in front of an independent administrative law judge with FTC staff acting as prosecutors. The judge’s decisions may be appealed to the full FTC Commission and then on to the U.S. Court of Appeals and the Supreme Court.
Anti-Competitive Agreements, including Cartels
All four jurisdictions have similar strong legislation prohibiting and if appropriate punishing anti-competitive agreements.
Monopolisation and Abuse of Dominant Position
The EU and UK both prohibit a wide range of behaviours under the general heading of abuse of dominant position. Article 102 of the European Treaty and Section 2 of the UK Competition Act include a non-exhaustive list of such behaviours.
Indian law follows EU/UK law quite closely, though without providing lists of examples.
In addition, the UK has other legislation which provides for Market Investigations through which the CMA has very wide powers to attack Adverse Effects on Competition arising out of identifiable features of markets which do not appear to be working well.
In the USA, the Sherman Act contains very wide provisions prohibiting all monopolisation, not just abusive behaviour. In practice, however, the US authorities carry out reasoned analyses before concluding that the activities of a business with apparent monopoly power are abusive. They cannot cast their web anything like as far as the CMA with its Market Investigations.
Following investigations, mergers may be cleared (that is approved) by the European Commission, the CMA in the UK and the CCI in India. In the US, the federal courts are required to make such decisions.
The European Commission and the CMA in the UK are empowered to close investigations into anti-competitive agreements and abuse of dominant position if they receive appropriate and binding undertakings (i.e. commitments to good behaviour).
Indian law does not contain such provisions – which is a pity because they save a lot of time in less serious cases.
The European, Indian and British authorities can all accept undertakings and commitments if the result will be a merger which does not significantly damage competition.
I am not familiar with the equivalent US legislation. Can anyone help?
Businesses being investigated by the EU, US and UK competition authorities may not be required to produce or disclose privileged communications – such as those between professional legal advisers and their clients. This protection is not available in India.
Shreya Jha, who helped me prepare this note, has also provided more detailed information about the Indian competition regime. You will find her work here.