The Need for International Cooperation in Merger Enforcement

The complexity of cooperation in cross-border competition law enforcement increased significantly between 1990 and 2011, underlining the urgency to improve techniques and tools of competition authority cooperation. As international trade has increased, the number of competition law enforcement activities related to cross-border mergers and cartels has risen substantially (up by about 250–466% since the 1990s). At the same time, the number of competition authorities has increased by a factor of six since 1990, from under 20 to 120 as of 2013. The spread of competition law is a positive development but cooperation has become more complicated as a result. Between 1990 and 2011, an index of complexity of cooperation on cross-border cases has increased of between 23 and 53 times. As trade and cross-border business activity increases in the future, and young competition authorities become more active, effective cooperation will become even more complicated. Ultimately, the complexity of cooperation can lead to undesirable outcomes, such as inconsistent decisions and unchallenged illegal conduct. The costs of failures of cooperation are identified, and found to be substantial. To overcome potential failures in cooperation, new and enhanced methods of competition law cooperation should be explored, such as mechanisms for the secure exchange of confidential information, and agreements between competition authorities to make more use of one another’s work on parallel investigations.