This presentation by Pablo Márquez (Partner, ECIJA Colombia) was made during a discussion on the Interactions between competition authorities and sector regulators at the 21st meeting of the OECD Global Forum on Competition on 2 December 2022. More papers and presentations on the topic can be found out at https://oe.cd/icar. This presentation was uploaded with the author’s consent.

1. Collaboration is difficult
Pablo Márquez

2. 2
Legal framework for cooperation – Ideal Cooperation
Regulators take an active part of CA investigations (providing evidence or
expertise).
CA actively participate in the Regulatory process by discussing effects of
regulation in market dynamics (advocacy).
Regulators participate in merger control investigations and provide information as
sources for theories of harm or tools for analysis

3. 3
MOUs are essential to collaborate but can’t cover all issues
MOUs are regularly regarded as a great tool to
enhance collaboration and coordination
among regulators and CAs
- MOUs may help to find common grounds
regarding objectives, substantive rules and
rules of procedure.
- MOUs can face and prevent hurdles that
can happen during the process of
collaboration, including issues related to
access to confidential information and joint
action.
- MOUs help planning and introduce an
operational framework but cannot cover
what the law does not allow.

4. 4
But MOUs are easy to sign hard to execute
MOUs, informal cooperation and
information systems lack authority that can
make and enforce binding agreements.
Informal cooperation is not transparent with
stakeholders in the market.
There are several issues that prevent a
CA/Regulator to push for mutual
collaboration under an MOU:
- lack of resources or asymmetric
resources granted by each authority
- the regulator is too slow to respond to
requests for assistance when the CA has
strict deadlines.
- Financial commitment by the parties to
the MOU is not discussed.

5. 5
Antagonist views and roles of regulated markets
Antagonists' policies and goals of CAs and
Regulators may reduce the incentives to
cooperate:
- Competition advocacy tools, in some
jurisdictions, create an antagonist role
among CA and regulators
- Regulators’ approach – we “know
better” our market reduces smoothness
of cooperation
- Legal goals: Consumer welfare vs
industry’s stability

6. 6
The process of cooperation is essential for effective
collaboration
The lack of an operational framework for
cooperation is detrimental to effective
collaboration between authorities.
- Who calls who?
- When is collaboration triggered?
- What are the limits of collaboration and
coordination?
- To what extent the collaboration is
permitted and promoted in the legal
system?
- Is collaboration transparent with third
parties?

7. 7
Third parties could help trigger coordination
Third parties (including counsels of the
regulated) are not allowed to push for
coordination among the regulator and the
competition authority.
Counsels of undertakings are a great “tool”
to push for further coordination to identify
areas where contradictions may harm the
ecosystem
Third party participation and transparency in
the cooperation process is essential.
But, how?

8. 8
Third parties could be trusted
Going beyond regulatory consultation,
being open to allow stakeholders to
promote coordination to improve both the
quality of outcomes from MC,
investigations and regulations.
Allowing stakeholders to ignite the process
of cooperation builds:
• Legitimacy: public engagement
creates legitimacy and evidence of
successful governance.
• Credibility: establish public trust by
creating better ways to link with
stakeholders.
• Confidence: opens avenues for
stakeholders to cover any concern.

9. 9
Grant tools for third parties
This does not advocate for further processes
of regulatory consultation, but government
intervention awareness.
MOUs could promote:
- Publication of meetings among regulators
and CA
- Specific channels for stakeholders to
trigger further consultation to the regulator
Not all Regulators have signed an MOU
- Provide guidance on how to trigger Sector
specific regulators in investigations
- Be open to bring in the regulators when
regulation is analysed

10. 10
1) Cooperation is difficult, but as any difficult task, process and discipline make it
simpler. Promotion of technical cooperation through secondments, MOUs, shared
data rooms and so on, as well as voluntary participation in merger control and
behavioral investigations by regulators may help in providing more certainty to CA
and regulators decisions.
2) Third parties and counsels for the regulated also have a very important role in that
from the very beginning they could bring to the investigations or mergers control
proceedings the plea to cooperate and provide technical knowledge necessary
for the process to reach a better conclusion.
3) Informal collaboration does not create trust, as it may encourage scenarios in
which the authorities produce and opinion without leaving a record and without
third parties being able to consult, question, or find the opinion of the competition
or regulator.
Take aways

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