Page 54 - ITU-T Focus Group Digital Financial Services – Recommendations

ITU-T Focus Group Digital Financial Services
Recommendations

Title of recommendation Strengthening competition law through enforcement
Working Group Technology, Innovation and Competition

Latest Revision Date 6/12/2016
Audience for recommendation Member States in the DFS

As a corollary to the need to strengthen relevant institutions, to ensure a fair playing field in DFS markets, gov-
ernments should equally strengthen the enforcement powers of the bodies responsible for compliance with
competition law.

To ensure that DFS markets function fairly and to guarantee an equal playing field for all stakeholders in the
ecosystem, especially given the large number of entrenched interests that can be found in DFS markets,
competition authorities or their counterparts in sector regulators need to have real powers to prevent anti-
competitive behaviour, as well as to sanction ex post abuses.

To this end, competition authorities should have the concrete ability to detect and sanction anti-competitive
behaviour. Such tools include fines that ensure adequate deterrence, the ability to impose injunctions and
structural (such as the break-up of entities with Significant Market Power (SMP) who abuse their dominance)
as well as behavioural remedies, search and seizure powers (including dawn raids), the establishment of a
leniency program, the ability to compel disclosure of relevant information and the promotion of settlements.

Competition authorities should equally have the concrete power to preempt future market distortions through
the implementation of effective merger control. To ensure that such control is most effective, pre-notification
of mergers should be mandatory, allowing fast track procedures or a two phase review process to prioritize
the more complex and/ or problematic cases (in which DFS cases are more likely to fall) while concurrently
imposing notification thresholds to reduce the administrative burdens on both the market players and the
authority. Further, due process, such as oral hearings, technical discussions with case handlers, access to
6
statements of objections and to case files, publication of annual reports, and publication of decisions issued,
ensures a fair and transparent process, and strengthens the reputation of the competition authority or sector
regulator, especially in a market such as DFS where there may be several powerful and connected players.
7
Lastly, rules regarding conflicts of interest and the separation of the investigation, prosecution and decisional
functions in case handling further support the independence and reputational strength of the authority.
8
Competition authorities should balance their actions with other government interventions to minimize
restrictions on competition in those areas. This may be through the provision of opinions and statements on
policy and legal reforms and/or the conduction of sectoral studies and issuance of recommendations to other
government bodies , even when such opinions are not formally foreseen in the legislation.
9

6 ibid
7 ibid
8 ibid
9 ibid

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