ICC Comments on EU-US Positive Comity Agreement

The ICC supports the initiative to develop cooperation between the two parties through positive comity. Positive comity will provide governments with a preferable alternative to the extraterritorial exercise of their jurisdiction when they wish to deal with anti-competitive activities in other countries which adversely affect their consumers.

However, there are certain issues raised by this new agreement on which the ICC would like to comment:

The new agreement is said to be "intended to supplement and to be interpreted consistently with the 1991 Agreement" (Article VI). As both agreements will run side by side, will the new positive comity agreement automatically take precedence over the 1991 agreement in the event of inconsistency or differences in scope? The ICC would welcome clarification as to how the two agreements will be applied and how they are intended to function together as provisions in the two agreements are not always consistent (for example the definition of "competition laws" covered by the 1991 agreement includes mergers while these are expressly excluded in the new agreement).