Positive Comity Requests

Positive comity enables one side adversely affected by anti-competitive conduct carried out in the other's territory, to request the other side's competition authority to take enforcement action. There are general “positive comity” provisions in the Cooperation Agreements with the US (Article V 2), Canada (Article V 2), Japan (Article 5.1) and Korea (Article 6) according to which either Party can invite the other Party to take, on the basis of the latter's legislation, appropriate measures regarding anti-competitive behaviour implemented on its territory and which affects the important interests of the requesting Party.

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With regard to the US a special Positive Comity Agreement has existed since 1998. The Agreement clarifies both the mechanics of the positive comity co-operation instrument, and the circumstances in which it can be availed of. In principle, one party may request the other party to remedy anticompetitive behaviour which originates in its jurisdiction but affects the requesting party as well. The Commissioner for Competition has delegated powers to make a request under this agreement to the US or to respond to one from the US (Commission decision of 19 June, adopting SEC (2002)669).

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In practice, the positive comity provisions are not used frequently as companies (i.e. complainants) prefer to address directly the competition authority they consider to be best suited to deal with the situation. If, however, a case of positive comity arises, the case handler should contact UnitA5 to determine the appropriate course of action.

Resources

References

Information about Positive Comity Requests in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Positive Comity Requests

Positive Comity Requests