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Competition law and state-owned enterprises – OECD Secretariat – November 2018 OECD GFC

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This presentation by Carolina Abate from the OECD Competition Division, was made during the discussion on “Competition law and state-owned enterprises”, held during the 17th OECD Global Forum on Competition on 30 November 2018. More documents and presentations on this topic can be found at oe.cd/csoes.

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Competition law and state-owned enterprises – OECD Secretariat – November 2018 OECD GFC

  1. 1. Competition Law And State-Owned Enterprises Presentation by the Secretariat Global Forum on Competition 30th November 2018
  2. 2. • SOE’s anticompetitive behaviour as harmful as POE’s • Fundamental role of neutral and rigorous antitrust enforcement to level the playing field • Investigations can impose a variety of challenges due to the distinctive nature of state-owned entities • Additional difficulties if foreign SOEs are involved in investigations Introduction
  3. 3. • Most competition standards are based on the logic of private sector and profit maximising economic players • Different accounting standards and lack of transparency regarding costs  difficult for agencies to obtain information • Effectiveness of different kinds of sanctions • Role of government ties Cross-cutting practical challenges
  4. 4. Enforcement challenges: specific conducts Mergers  Notion of group  Calculation of turnover  Cross-border transactions Cartels  Definition economic unit  Turnover for calculations of fines  Dawn raids Unilateral conduct  Use of cross- subsidization  Recoupment test  Cost- benchmarks
  5. 5. • Risk that SOE’s specific characteristics can lead to under (or over) enforcement • An effects-based analytical framework is sufficiently flexible to accommodate these differences • Factors that create challenges have to be constantly taken into account and assessed on a case-by-case basis • Limiting the exemptions, derogations, and non- efficiency based defenses essential for the functioning of competitive markets Conclusion