Cartel Regulation 2021 In association with Dechert LLP © Law Business Research 2020 Keep moving forward Dechert has the global presence and experience to work with you across jurisdictions to quietly and efficiently prevent or resolve cartel investigations. You can trust us to understand your business, efficiently manage internal investigations and successfully implement remedies and preventive measures that minimize risk. If a government investigation is imminent, you are in good hands. We routinely defend raids and work with enforcers at the Department of Justice, the European Commission and other major competition authorities. Our advocacy has helped clients prevent charges and reduce compliance burdens and fines, often with no public attention. It’s simple. You’re in the business of progress — we’re here to help you keep moving forward. dechert.com/antitrust © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Cartel Regulation [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editor Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Neil Campbell The information provided in this publication McMillan LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the twenty-first edition of Cartel client relationship. The publishers and Regulation, which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. October and November 2020. Be advised Throughout this edition, and following the unique Lexology Getting The Deal Through that this is a developing area. format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes new chapters on Argentina, Bulgaria, France and Spain. © Law Business Research Ltd 2020 Lexology Getting The Deal Through titles are published annually in print. Please ensure you No photocopying without a CLA licence. are referring to the latest edition or to the online version at www.lexology.com/gtdt. First published 2001 Every effort has been made to cover all matters of concern to readers. However, specific Twenty-first edition legal advice should always be sought from experienced local advisers. ISBN 978-1-83862-310-4 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri- butors to this volume, who were chosen for their recognised expertise. We also extend special Printed and distributed by thanks to the contributing editor, Neil Campbell of McMillan LLP, for his continued assistance Encompass Print Solutions with this volume. Tel: 0844 2480 112 London November 2020 Reproduced with permission from Law Business Research Ltd This article was first published in December 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Foreword 5 Finland 111 Neil Campbell Mikael Wahlbeck, Antti Järvinen and Niko Hukkinen McMillan LLP Frontia Attorneys Ltd Global overview 6 France 120 Roxann E Henry, Lisa M Phelan, Megan E Gerking and Lionel Lesur and Anna Sacco Robert W Manoso Franklin Morrison & Foerster LLP Germany 128 Argentina 9 Markus M Wirtz and Silke Möller Miguel del Pino and Santiago del Rio Glade Michel Wirtz Marval O'Farrell Mairal Hong Kong 137 Australia 16 Marcus Pollard and Kathleen Gooi Fiona Crosbie, Rosannah Healy and Ted Hill Linklaters Allens India 144 Austria 26 Anima Shukla and Subodh Prasad Deo Andreas Traugott and Anita Lukaschek Saikrishna & Associates Baker & McKenzie, Diwok Hermann Petsche Rechtsanwälte LLP & Co KG Japan 153 Belgium 32 Eriko Watanabe and Koki Yanagisawa Laure Bersou and Pierre Goffinet Nagashima Ohno & Tsunematsu Daldewolf Malaysia 164 Brazil 41 Nadarashnaraj Sargunaraj and Nurul Syahirah Azman André Cutait de Arruda Sampaio and Onofre Carlos de Arruda Sampaio Zaid Ibrahim & Co OC Arruda Sampaio – Sociedade de Advogados Mexico 173 Bulgaria 50 Rafael Valdés Abascal and Agustín Aguilar López Anna Rizova and Hristina Dzhevlekova Valdes Abascal Abogados Wolf Theiss Portugal 182 Canada 61 Mário Marques Mendes and Alexandra Dias Henriques William Wu, Guy Pinsonnault and Neil Campbell Gómez-Acebo & Pombo McMillan LLP Singapore 194 China 74 Lim Chong Kin and Corinne Chew Ding Liang Drew & Napier LLC DeHeng Law Offices Slovenia 205 Denmark 90 Irena Jurca, Katja Zdolšek and Stojan Zdolšek Frederik André Bork, Olaf Koktvedgaard and Søren Zinck Odvetniska druzba Zdolsek Bruun & Hjejle South Korea 213 European Union 100 Hoil Yoon, Chang Ho Kum and Yang Jin Park Mélanie Thill-Tayara and Marion Provost Yoon & Yang LLC Dechert LLP 2 Cartel Regulation 2021 © Law Business Research 2020 Contents Spain 225 United Kingdom 283 Andrew Ward, Irene Moreno-Tapia, Carlos Alberto Ruiz and Elizabeth Morony, Samantha Ward, Ben Jasper and Alexandra Buckley Marta Simón Clifford Chance Cuatrecasas United States 295 Sweden 236 Steven E Bizar and Julia Chapman Johan Carle, Fredrik Sjövall and Stefan Perván Lindeborg Dechert LLP Mannheimer Swartling Vietnam 305 Switzerland 246 Nguyen Anh Tuan, Tran Hai Thinh and Tran Hoang My Mario Strebel and Fabian Koch LNT & Partners CORE Attorneys Ltd Quick reference tables 314 Turkey 259 Gönenç Gürkaynak and K Korhan Yıldırım ELIG Gürkaynak Attorneys-at-Law Ukraine 272 Nataliia Isakhanova, Yuriy Prokopenko and Andrii Pylypenko Sergii Koziakov & Partners www.lexology.com/gtdt 3 © Law Business Research 2020 Foreword Neil Campbell McMillan LLP This 21st edition of Cartel Regulation is the most current and compre- jurisdictions, the extent and depth of coordination is not nearly as signif- hensive source of information about cartel laws and enforcement icant as in merger reviews. around the world. Cartel Regulation 2021 provides a detailed explanation of the state During the first two decades of the 21st century, there has been of play in this high-stakes field, including recent developments over the enormous growth and development in competition laws and enforce- past year and an overview of future changes that may be expected in ment activity. The International Competition Network (ICN) has each jurisdiction. In addition to the in-depth coverage provided for 30 of played a significant role in fostering this expansion through its Cartel the most active jurisdictions, this essential reference includes a global Working Group. overview prepared by Morrison & Foerster LLP. Cartel Regulation 2021 Anti-cartel provisions are a core pillar of every competition also includes new chapters on Argentina, France, Germany, Spain and law regime. This reflects the broad consensus that certain types of the United States. competitor coordination are so unlikely to have pro-competitive or The deskbook is structured using a template that ensures consistent efficiency-enhancing benefits that they can safely be prohibited – and presentation and ready access to the relevant information about each penalised severely – without the need for a case-specific assessment of subject in each jurisdiction. The country profiles include overview mate- anticompetitive effects. rial on the legislation and enforcement institutions, information about The global pandemic has prompted competition law enforce- the jurisdictional and substantive coverage of the regime, and detailed ment agencies to reconsider priorities and how they discharge their discussions regarding the design and operation of immunity and leni- mandates. Most are adapting quickly and effectively. Many agencies ency programmes as well as contested proceedings and penalties. The have signalled a willingness to exercise discretion not to enforce cartel increasing scope for private, collective or class actions by affected direct laws against competitor collaborations that have genuinely positive or indirect purchasers, and how they interface with agency proceedings, health objectives. However, in most cases, this has been accompanied are addressed as well. This year’s volume also summarises changes by clear warnings that attempting to use covid-19 as a cover for conduct in laws or enforcement policies arising in response to the challenges that is not in the public interest would not be accepted and those cartel caused by the coronavirus pandemic. laws would be vigorously enforced in such situations. The chapters in Cartel Regulation 2021 have been prepared by Despite the ‘soft convergence’ regarding the importance of cartel leading experts in each jurisdiction. We deeply appreciate their efforts enforcement, there are significant differences in the design and opera- to provide thorough reports on their regimes, which include practical tion of individual regimes. Differences related to institutional design, advice on how enforcement really works and tips for ‘getting the fine enforcement processes, legal standards and sanctions generate down’. I would also like to thank the Lexology Getting