The ‘Five Eyes’ of competition enforcement in global supply chains

Competition and antitrust regulators around the world have joined forces to combat anticompetitive conduct in supply chains, in the face of rising costs of distribution and increased costs to consumers.

The Australian Competition and Consumer Commission (ACCC), US Department of Justice and Federal Bureau of Investigation (FBI), Canadian Competition Bureau, NZ Commerce Commission, and UK Competition and Markets Authority have built on their existing formal (most recently the Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities¹) and informal cooperation agreements with the announcement on 18 February 2021 of the ‘Five Eyes’ working group.² The group will share intelligence to identify, target and prevent anti-competitive conduct in global supply chains.

Signs of anticompetitive conduct in supply chains

Agreements between competitors on bids, prices, market allocation and output are deemed anticompetitive and are prohibited outright (cartel conduct). The actions of a single supplier with a substantial share of all supply (market power) can distort competitive tension that would otherwise exist in a competitive market. Reaching an agreement or understanding that is anticompetitive in purpose or effect can also be prohibited.

Collusive or anticompetitive conduct indicators can include:

• Simultaneous price rises by suppliers beyond what is justified by changes in input costs.
• Regular suppliers declining to tender/respond to a RFP for no obvious reason.
• Prices submitted to a tender or in response to a RFP are much higher than previous tenders or published price lists by some or all suppliers.
• Prices drop markedly, either those charged by all suppliers or by a supplier that has market power, post a new competitor entering the market.
• Significant differential in prices for different locations that cannot be explained by transport costs.
• A supplier declines to tender in certain locations.
• Dramatic price changes for the same type of supply.
• A supplier with market power pricing unconstrained.

These indicators warrant further investigation and is conduct of the kind that will be considered closely by global authorities as to whether it is collusive or anticompetitive, adversely affecting consumer markets.

Although competition and antitrust laws around the world may differ slightly, each of the ‘Five Eyes’ jurisdictions competition and antitrust laws are underpinned by the same prohibited conduct – cartels, misuse of market power/abuse of dominance and anticompetitive arrangements. The investigative tools available to regulators is vast, including the FBI’s covert intelligence gathering capabilities, including phone tapping. Where this intelligence will be shared across global authorities, the detection risk increases dramatically. Where the conduct affects multiple global markets, concurrent global investigation and enforcement is likely with global regulators building on their successful prosecutions to date.³