File #2722: "2019_Book_RegionalCompetitionLawEnforcem.pdf"
Text
1|Acknowledgements|6
1|Contents|7
1|List of Abbreviations|15
1|Part I|18
2|Chapter 1: Overview of the WAEMU, the AndeanC and the CARICOM|20
3|1.1 General History of Integration in the WAEMU, AndeanC and CARICOM|20
4|1.1.1 WAEMU|20
4|1.1.2 AndeanC|22
4|1.1.3 CARICOM|24
3|1.2 Development of Regional Competition Policy in the WAEMU, AndeanC and CARICOM and Main Enforcement Difficulties|27
4|1.2.1 WAEMU|27
4|1.2.2 AndeanC|28
4|1.2.3 CARICOM|31
2|Chapter 2: Competition Law in Developing Countries|32
3|2.1 Competition Policy and Development|32
3|2.2 Taxonomy of Competition Law Enforcement Difficulties in Developing Countries|35
4|2.2.1 Economy Related Enforcement Difficulties|35
5|2.2.1.1 Market Particularities|36
6|Small Market Economy|36
6|Dependence on Foreign Direct Investment and Vulnerability to International Anticompetitive Conduct|38
6|Dependence on Imports|39
5|2.2.1.2 Economic Actors|39
5|2.2.1.3 Institutional Incapacities|41
5|2.2.1.4 Difficulties in Dealing with International Anticompetitive Practices|42
4|2.2.2 Politically Related Enforcement Difficulties|43
5|2.2.2.1 Competition Authorities’ Lack of Independence|43
5|2.2.2.2 Lack of Political Incentive to Effectively Enforce Competition Law|44
4|2.2.3 Socio-Cultural Enforcement Difficulties in Developing Countries|45
5|2.2.3.1 Systematic Poverty|45
5|2.2.3.2 Lack of Competition Culture|46
5|2.2.3.3 The Need to Protect Minorities or Disadvantaged Population Groups in Developing Countries|46
4|2.2.4 Lack of Formal Cooperation Mechanisms on the International Level|47
2|Chapter 3: Terms and Premises of Regional Competition Law Enforcement|49
3|3.1 Taxonomy of Institutional Design in Regional Competition Law Enforcement|49
3|3.2 The Multi-Layered Notion of ‘Enforcement’ in Competition Law|51
3|3.3 Measuring the Efficiency of Regional Competition Law Enforcement in RTAs Among Developing Countries|52
2|Chapter 4: Structure of the Study|54
1|Part II: The Institutional Design of Regional Competition Law Enforcement in the WAEMU, AndeanC and CARICOM|56
2|Chapter 5: Dimension I: The Content of Substantive Law|57
3|5.1 Core Substantive Competition Law Provisions|57
4|5.1.1 Anticompetitive Agreements and Abuse of Dominant Position|57
4|5.1.2 Subjective Scope of Application|57
4|5.1.3 Dealing with State-Related Behaviour and Public Undertakings|58
4|5.1.4 Regional Merger Regulation|66
4|5.1.5 Territorial Scope of Application|71
5|5.1.5.1 Literal Interpretation of Articles 88, 89 and 90 of the Treaty of Dakar in the WAEMU by the Court of Justice|72
5|5.1.5.2 Article 5 of Decision 608 in the AndeanC|75
5|5.1.5.3 Articles 173(1) lit. a) and 174(1) of the Revised Treaty of Chaguaramas in the CARICOM|79
4|5.1.6 Exemptions|82
4|5.1.7 Summary of Substantive Regional Competition Law Provisions|87
3|5.2 Current Framework of National Competition Law Regimes|88
4|5.2.1 Taxonomy of National Competition Law Regimes in the WAEMU|89
5|5.2.1.1 Advanced National Competition Law Systems in Senegal, Burkina Faso, Ivory Coast and Mali|89
5|5.2.1.2 Young or Non-existing Competition Law Regimes in Niger, Togo, Guinea-Bissau and Benin|91
4|5.2.2 Taxonomy of National Competition Law Regimes in the AndeanC|92
5|5.2.2.1 Advanced Competition Law Regimes in Colombia and Peru|92
5|5.2.2.2 Young Competition Law Regimes in Bolivia and Ecuador|97
4|5.2.3 Taxonomy of National Competition Law Regimes in the CARICOM|100
5|5.2.3.1 Advanced Competition Law Regimes in Jamaica and Barbados|100
5|5.2.3.2 Young Competition Law Regimes in Guyana, Trinidad and Tobago, Suriname and Belize|106
5|5.2.3.3 Young Competition Law Regime in the OECS|110
3|5.3 Regional Competition Law Objectives and Their Embeddedness|111
4|5.3.1 Regional Competition Law Objectives|112
5|5.3.1.1 Competition Law Objectives in the WAEMU|113
5|5.3.1.2 Competition Law Objectives in the AndeanC|115
5|5.3.1.3 Competition Law Objectives in the CARICOM|116
5|5.3.1.4 Summary of Regional Competition Law Objectives|117
4|5.3.2 Horizontal Embeddedness: State of Implementation of the Common Market and Congruence with General Goals of Regional Integration|117
5|5.3.2.1 WAEMU|117
5|5.3.2.2 AndeanC|119
5|5.3.2.3 CARICOM|123
6|State of Progress of the Common Market|126
6|The CARIFORUM-EC Economic Partnership Agreement|128
4|5.3.3 Vertical Embeddedness: Congruence with National Interests and Economic Policies|130
5|5.3.3.1 National Competition Law Objectives and Policies Within WAEMU|130
5|5.3.3.2 National Competition Law Objectives and Policy Within AndeanC|132
5|5.3.3.3 National Competition Law Objectives and Policy Within CARICOM|134
5|5.3.3.4 Summary of Regional Competition Law Objectives and Embeddedness|136
2|Chapter 6: Dimension II: Legislative Competence on Competition Law|137
3|6.1 Unification of Laws Through a Wide Definition of the Territorial Scope of Application: The Case of WAEMU|137
4|6.1.1 Implications on Member States with Existing and Operative National Competition Law Systems|140
4|6.1.2 Implications on Member States Without Prior or Operative National Competition Law Systems, Including Member States with Prior Sectorial Regulation|145
4|6.1.3 Summary of the Unification of Substantive Laws in the WAEMU|146
3|6.2 Convergent Standards Through Minimum or Partial Harmonization of Substantive Laws: The Case of CARICOM|148
4|6.2.1 Obligation to Enact National Substantive Competition Laws and a National Competition Authority for the Member States as Subjects of International Law in the CARICOM|149
5|6.2.1.1 CARICOM Model Law on Competition|152
5|6.2.1.2 Lack of Implementation Deadline|153
5|6.2.1.3 The Possible Erosion of Minimum Competition Law Standards Through the Establishment of Special Sectorial Rules and Policies|154
5|6.2.1.4 Implications of the Lack of Direct Effect for Competition Law Enforcement|155
4|6.2.2 Implications for National Competition Law Regimes with Existing Competition Laws|158
4|6.2.3 Implications for Member States Without Prior National Competition Law Regimes|159
4|6.2.4 Summary of Convergent Standards Through Minimum or Partial Harmonization in a System of International Law|161
3|6.3 “Soft” Harmonization Through Non-Binding Guidelines: The Case of the AndeanC|162
4|6.3.1 Obligation to Establish a National Authority in the AndeanC in Charge of the Application of Regional Competition Law|163
4|6.3.2 The “Downloading Option” in the AndeanC|164
4|6.3.3 Implications for Member States Without Competition Laws|166
4|6.3.4 Implications for Existing Competition Law Systems in the Member States|172
4|6.3.5 Summary of “Soft Harmonization” Through Non-Binding Guidelines in the AndeanC|174
2|Chapter 7: Dimension III: Organization of Enforcing Agencies|177
3|7.1 Regional Competition Law Authorities|177
4|7.1.1 Specialized Independent Commission Model: The CARICOM Example|178
5|7.1.1.1 The General Structure|178
5|7.1.1.2 The Constitutional Design of the CARICOM Competition Commission: The Regional Judicial and Legal Service Commission|179
5|7.1.1.3 Conclusion on the CARICOM Competition Commission|182
4|7.1.2 Non-Specialized Directorate Model: The Andean Example|183
5|7.1.2.1 The General Structure|183
5|7.1.2.2 Competition Law Cases Dealt with by the Secretariat General|186
5|7.1.2.3 Conclusions on the Secretariat General of the AndeanC|186
4|7.1.3 Specialized Directorate Model: The Case of the WAEMU|187
5|7.1.3.1 The General Structure|187
5|7.1.3.2 Competition Law Cases of the WAEMU Commission|189
5|7.1.3.3 Conclusions on the Directorate of Competition in the WAEMU|191
3|7.2 National Competition Authorities Prior and After the Installation of the Regional Competition Authority|192
4|7.2.1 National Competition Law Structures|192
4|7.2.2 National Competition Law Enforcement and National Sectorial Regulation|194
4|7.2.3 Conclusions on National Competition Law Enforcement and Institutional Structures|196
2|Chapter 8: Dimension IV: Enforcement Procedures of Regional Competition Law in the Narrow Sense|197
3|8.1 Regional Competition Law Enforcement Procedures|198
4|8.1.1 Regional Competition Law Investigations|198
5|8.1.1.1 Trinidad Cement Limited v CARICOM Competition Commission: Judgement of the Caribbean Court of Justice|206
5|8.1.1.2 The Caribbean Court of Justice’s obiter dictum on the CARICOM Competition Commission’s Rules of Procedure|210
4|8.1.2 Conduct of and Powers During Investigations|212
4|8.1.3 Decision-Making Power and Its Implementation|218
5|8.1.3.1 Decisions and Possible Measures|218
5|8.1.3.2 Enforcement of Measures|220
5|8.1.3.3 Claims for Damages, Declarations and Injunctions and Criminal Law Liability for Breaches of Regional Competition Law|222
4|8.1.4 Advocacy Function and Competition Promotion|230
3|8.2 Cooperation Mechanisms with National Structures|235
4|8.2.1 Specialized Inter-governmental Cooperation Bodies|235
5|8.2.1.1 The Advisory Committee on Competition in the WAEMU|236
5|8.2.1.2 The Andean Committee on the Defence of Free Competition|240
6|Resolutions Concerning the National Confederation of Palm-Growers and Palm Oil Enterprises (Peru) vs. Fund for Price Stabilisation for Palm-Oil and Its Fractions (Colombia)|242
6|Conflicts of Competence Between the Andean Committee on the Defence of Free Competition and the Secretariat General in the Context of Article 36 of Decision 608|246
5|8.2.1.3 Summary of Specialized Inter-governmental Cooperation Organs|248
6|Internal Structure of the Committees|248
6|Requirement of National Initiatives and Commitment|250
7|Political Will to Participate|250
7|Impact of the Level of Experience|251
7|Rules on Confidentiality|251
6|The Need for Regional Initiative|252
6|Does Timing Matter?|252
6|Creating Vertical and Horizontal Cooperation Via Inter-governmental Cooperation Bodies|253
4|8.2.2 General Cooperation and Policy Coordination Policy Bodies: CARICOM’s Council of Trade and Economic Development|254
5|8.2.2.1 Internal Structure|255
5|8.2.2.2 Requirement of National Initiative|257
6|Political Will of Member States to Participate in the COTED|257
6|Influence of the Level of Competition Law Experience in the COTED|257
5|8.2.2.3 The Need for Regional Initiative for Cooperation Through the COTED|258
5|8.2.2.4 Timing and the Creation of Vertical and Horizontal Cooperation|259
5|8.2.2.5 Summary on General Cooperation Bodies in Regional Competition Law Enforcement|260
3|8.3 Control of Regional Competition Law Enforcement|261
4|8.3.1 Administrative Appeal|261
4|8.3.2 Judicial Appeal Through a Regional Court of Justice|262
5|8.3.2.1 Original and Appellate Jurisdiction of a Regional Court|264
5|8.3.2.2 Preliminary Reference Rulings and Their Impact on Regional Competition Law|265
5|8.3.2.3 Advisory Opinions by the Regional Court|271
5|8.3.2.4 Actions for Annulment|272
5|8.3.2.5 Non-compliance Actions|277
5|8.3.2.6 Failure to Act Complaints|281
5|8.3.2.7 Summary of Control of Regional Competition Law Decisions|282
2|Chapter 9: Dimension V: General Legal Principles Governing the Allocation of Competences in RTAs and the Notion of Time|285
3|9.1 The Principles of Direct Application and Direct Effect of Regional Competition Law|286
3|9.2 Primacy of Regional Law in Exclusive, Concurrent or Parallel Competition Law Enforcement|287
4|9.2.1 Exclusive, Concurrent or Parallel Competition Law Enforcement in RTAs|287
4|9.2.2 Primacy of Community Competition Law in a System of Centralized and Exclusive Application|288
4|9.2.3 Primacy of Community Competition Law in a System of Concurrent Application|289
4|9.2.4 Primacy in a System of Parallel Competition Law Enforcement and in a Dualist System|290
3|9.3 The Principles of Effectiveness and Equivalence|292
3|9.4 The Principle of Subsidiarity|293
3|9.5 The Principle of Procedural and Institutional Autonomy in the Application of Regional Competition Law and Policy|294
3|9.6 Mandatory Lead Jurisdiction|296
3|9.7 Quantitative Thresholds|298
3|9.8 Conclusions on the General Legal Principles Governing the Allocation of Competences in RTAs|299
2|Chapter 10: Dimension VI: The Notion of Time—Adaptability and Sustainability of Regional Competition Law Enforcement|301
3|10.1 General Legal Adaptability of the Regional Competition Law System|301
3|10.2 Timing of Regional Competition Law Implementation|304
1|Part III: The Optimal Degree of Centralization and Decentralization: Evaluation of the Three Regional Competition Law Systems with Regard to the Enforcement of Competition Law in Developing Countries|308
2|Chapter 11: General Conclusions on the Efficacy of a Regional Competition Law System|309
3|11.1 The Dynamic Relationship Between Regional and National Competition Policy|309
3|11.2 From Regional to International Economic Integration: Creating a Common Market|312
4|11.2.1 Redefining the Common Market in Developing Countries|312
4|11.2.2 Public vs. Private Restraints to Inter-state Trade Between Developing Countries|316
4|11.2.3 The Overarching Incentive of a Common Market for Regional Competition Law Enforcement|317
4|11.2.4 Larger Integration and Open Regionalism: Opportunities or Threats to RTAs in Developing Countries?|319
3|11.3 Creating a Credible Threat: In Particular with Regard to International Anticompetitive Practices|320
4|11.3.1 The Relevance of the Creation of a Common Market|320
4|11.3.2 Increasing the Political Weight of a Competition Authority’s Decisions|321
4|11.3.3 Necessity to Provide Regional Competition Authority with Sufficient Enforcement Powers|322
3|11.4 Increasing Legal Certainty and Convergence|323
4|11.4.1 The Relevance of Harmonization of Competition Law and Policy Within an RTA Among Developing Countries|324
4|11.4.2 The Importance of Harmonization in Attracting Foreign Direct Investment (FDI) and the Intensification of Intra-community Trade|328
4|11.4.3 Different Forms and Consequences of Imperfect Harmonization|329
5|11.4.3.1 Actual Record of Conflicting National and Regional Enforcement|330
5|11.4.3.2 Lack of Harmonization of Competition Law Procedures and Institutions: Harmonization as a Precondition for Cooperation?|330
3|11.5 The Competition Authority’s Independence with Regard to Competition Law Enforcement in Developing Countries|333
4|11.5.1 Furthering Greater Independence in Regional and National Competition Law Enforcement|333
4|11.5.2 The Difficult Notion of Independence of Competition Authorities in Developing Countries|335
3|11.6 Overcoming the Lack of Resources in RTAs Consisting of Developing Countries|338
4|11.6.1 The Interdependence Between the Attribution of Competences and the Required Resources|338
4|11.6.2 The Lack of Skilled Staff|339
4|11.6.3 Preconditions for Network Efficiencies|341
4|11.6.4 Cumulative Sanctions as an Increased Deterrent Effect?|342
3|11.7 Creating and Promoting a Competition Culture|343
4|11.7.1 The Necessity to Establish a National Competition Law Culture|343
4|11.7.2 The Necessity to Establish a Competition Law Culture with Regard to Regional Competition Law|345
3|11.8 The Problem of Accessibility and Private Enforcement|347
4|11.8.1 Accessibility of Regional Competition Authorities in Infringement Procedures of Regional Competition Law|347
4|11.8.2 The Role of National Judges in Private Enforcement of Regional Competition Law|349
3|11.9 The Political Dimension of Regional Competition Law Enforcement|351
3|11.10 The Importance of Preserving Flexibility in the Framework of a Regional Competition Law Structure|353
3|11.11 General Conclusions|355
2|Chapter 12: The Optimal Degree of Centralization or Decentralization: Recommendations for and Implications of Certain Institutional Designs|357
3|12.1 Dimension I: Vertical Allocation of Competences Through the Content of Regional Substantive Competition Law|357
4|12.1.1 Territorial Scope of Application: The Requirement of Cross-Border Trade|357
4|12.1.2 The Notion of Appreciable Effect and the De-Minimis Clause|360
4|12.1.3 Dealing with State-Related Anticompetitive Practices|361
4|12.1.4 The Inclusion of Individual Exceptions, Exemptions and Special and Differential Treatment Provisions|361
4|12.1.5 Objectives of Regional Competition Law|362
4|12.1.6 The Inclusion of Regional Merger Policy|363
4|12.1.7 Competition Advocacy|364
3|12.2 Dimension II: Implications for the Vertical Allocation of Competition Law Competences|365
4|12.2.1 Implementation of National Competition Law Structures: Informal Incentives vs. Obligations|365
4|12.2.2 Range of Implementation Obligations and Learning Direction: Top-down and Bottom-up|367
4|12.2.3 Incentives for Member States to Harmonize National Substantive Competition Law|368
4|12.2.4 Regional Obligations on National Procedural Laws and the National Competition Law Authority’s Design|370
4|12.2.5 Horizontal Demarcation of Competences Between National Sector Regulation and Regional Competition Law|371
3|12.3 Dimension III: Implications Arising Out of the Institutional Design of a Regional Competition Authority|372
3|12.4 Dimension IV: Measures to Shape Competition Enforcement Procedures|375
4|12.4.1 Regional Competition Law Investigations|375
5|12.4.1.1 Right-Holders to Request an Investigation|375
6|Direct Accessibility of the Regional Competition Authority for the Private Sector|376
6|Ex Officio Power of a Regional Competition Authority to Initiate Investigations|377
6|Competence to Decide on Cross-Border Effect|378
5|12.4.1.2 Prior Notification Requirements|379
4|12.4.2 Conducting Regional Competition Law Investigations|380
4|12.4.3 Decision-Making Power and Enforcement|382
4|12.4.4 The Enforcement of Individual Exceptions|383
4|12.4.5 Private Enforcement Before National Judiciary|385
4|12.4.6 Cooperation Mechanisms with National Competition Law Structures|387
4|12.4.7 Accountability and Ex Post Control of Regional Competition Law Enforcement|390
3|12.5 Dimension V: Principles of Regional Competition Law Enforcement|392
4|12.5.1 International Law and Supranational Competition Law Systems|392
4|12.5.2 The Principles of Effectiveness and Subsidiarity|393
4|12.5.3 Prerogative Competence Allocation Powers and the Right to Determine the Competent Jurisdiction|394
4|12.5.4 Principle of Primacy of Regional Law in Exclusive, Concurrent or Parallel Competition Law Enforcement|395
3|12.6 Dimension VI: Dynamics of Regional Competition Law Enforcement|396
2|Chapter 13: Proposal on Re-Allocation of Competences in the WAEMU, AndeanC, CARICOM|399
3|13.1 WAEMU: “Controlled Decentralization” with Centralized Standards|399
3|13.2 AndeanC: Strengthening the Advocacy Function of the Secretariat General|404
3|13.3 CARICOM: Moderate Centralization of Enforcement and Harmonization of Competition Law Standards|409
2|Chapter 14: Guidelines on the Institutional Design of Regional Competition Law Enforcement|416
3|14.1 Number of Member States and Their Economic Heterogeneity|416
3|14.2 Intra-Community Trade|417
3|14.3 Particularities of Prevailing Anticompetitive Practices and Actors|417
3|14.4 Institutional Capacities and Resources|417
3|14.5 Existence, Efficacy and Diversity of National Competition Law Systems|417
3|14.6 Existence of Competition Culture in Member States|418
3|14.7 Political Will to Cede Sovereignty|418
3|14.8 Aspect of Time and Sequencing|418
3|14.9 Goals of Integration and Regional Competition Law|419
3|14.10 Existence of a Conflict Resolution Mechanism at the Regional Level|419
3|14.11 Degree and Scope of General Integration (Including Socio-Cultural and Political)|419
1|Bibliography|420
1|Contents|7
1|List of Abbreviations|15
1|Part I|18
2|Chapter 1: Overview of the WAEMU, the AndeanC and the CARICOM|20
3|1.1 General History of Integration in the WAEMU, AndeanC and CARICOM|20
4|1.1.1 WAEMU|20
4|1.1.2 AndeanC|22
4|1.1.3 CARICOM|24
3|1.2 Development of Regional Competition Policy in the WAEMU, AndeanC and CARICOM and Main Enforcement Difficulties|27
4|1.2.1 WAEMU|27
4|1.2.2 AndeanC|28
4|1.2.3 CARICOM|31
2|Chapter 2: Competition Law in Developing Countries|32
3|2.1 Competition Policy and Development|32
3|2.2 Taxonomy of Competition Law Enforcement Difficulties in Developing Countries|35
4|2.2.1 Economy Related Enforcement Difficulties|35
5|2.2.1.1 Market Particularities|36
6|Small Market Economy|36
6|Dependence on Foreign Direct Investment and Vulnerability to International Anticompetitive Conduct|38
6|Dependence on Imports|39
5|2.2.1.2 Economic Actors|39
5|2.2.1.3 Institutional Incapacities|41
5|2.2.1.4 Difficulties in Dealing with International Anticompetitive Practices|42
4|2.2.2 Politically Related Enforcement Difficulties|43
5|2.2.2.1 Competition Authorities’ Lack of Independence|43
5|2.2.2.2 Lack of Political Incentive to Effectively Enforce Competition Law|44
4|2.2.3 Socio-Cultural Enforcement Difficulties in Developing Countries|45
5|2.2.3.1 Systematic Poverty|45
5|2.2.3.2 Lack of Competition Culture|46
5|2.2.3.3 The Need to Protect Minorities or Disadvantaged Population Groups in Developing Countries|46
4|2.2.4 Lack of Formal Cooperation Mechanisms on the International Level|47
2|Chapter 3: Terms and Premises of Regional Competition Law Enforcement|49
3|3.1 Taxonomy of Institutional Design in Regional Competition Law Enforcement|49
3|3.2 The Multi-Layered Notion of ‘Enforcement’ in Competition Law|51
3|3.3 Measuring the Efficiency of Regional Competition Law Enforcement in RTAs Among Developing Countries|52
2|Chapter 4: Structure of the Study|54
1|Part II: The Institutional Design of Regional Competition Law Enforcement in the WAEMU, AndeanC and CARICOM|56
2|Chapter 5: Dimension I: The Content of Substantive Law|57
3|5.1 Core Substantive Competition Law Provisions|57
4|5.1.1 Anticompetitive Agreements and Abuse of Dominant Position|57
4|5.1.2 Subjective Scope of Application|57
4|5.1.3 Dealing with State-Related Behaviour and Public Undertakings|58
4|5.1.4 Regional Merger Regulation|66
4|5.1.5 Territorial Scope of Application|71
5|5.1.5.1 Literal Interpretation of Articles 88, 89 and 90 of the Treaty of Dakar in the WAEMU by the Court of Justice|72
5|5.1.5.2 Article 5 of Decision 608 in the AndeanC|75
5|5.1.5.3 Articles 173(1) lit. a) and 174(1) of the Revised Treaty of Chaguaramas in the CARICOM|79
4|5.1.6 Exemptions|82
4|5.1.7 Summary of Substantive Regional Competition Law Provisions|87
3|5.2 Current Framework of National Competition Law Regimes|88
4|5.2.1 Taxonomy of National Competition Law Regimes in the WAEMU|89
5|5.2.1.1 Advanced National Competition Law Systems in Senegal, Burkina Faso, Ivory Coast and Mali|89
5|5.2.1.2 Young or Non-existing Competition Law Regimes in Niger, Togo, Guinea-Bissau and Benin|91
4|5.2.2 Taxonomy of National Competition Law Regimes in the AndeanC|92
5|5.2.2.1 Advanced Competition Law Regimes in Colombia and Peru|92
5|5.2.2.2 Young Competition Law Regimes in Bolivia and Ecuador|97
4|5.2.3 Taxonomy of National Competition Law Regimes in the CARICOM|100
5|5.2.3.1 Advanced Competition Law Regimes in Jamaica and Barbados|100
5|5.2.3.2 Young Competition Law Regimes in Guyana, Trinidad and Tobago, Suriname and Belize|106
5|5.2.3.3 Young Competition Law Regime in the OECS|110
3|5.3 Regional Competition Law Objectives and Their Embeddedness|111
4|5.3.1 Regional Competition Law Objectives|112
5|5.3.1.1 Competition Law Objectives in the WAEMU|113
5|5.3.1.2 Competition Law Objectives in the AndeanC|115
5|5.3.1.3 Competition Law Objectives in the CARICOM|116
5|5.3.1.4 Summary of Regional Competition Law Objectives|117
4|5.3.2 Horizontal Embeddedness: State of Implementation of the Common Market and Congruence with General Goals of Regional Integration|117
5|5.3.2.1 WAEMU|117
5|5.3.2.2 AndeanC|119
5|5.3.2.3 CARICOM|123
6|State of Progress of the Common Market|126
6|The CARIFORUM-EC Economic Partnership Agreement|128
4|5.3.3 Vertical Embeddedness: Congruence with National Interests and Economic Policies|130
5|5.3.3.1 National Competition Law Objectives and Policies Within WAEMU|130
5|5.3.3.2 National Competition Law Objectives and Policy Within AndeanC|132
5|5.3.3.3 National Competition Law Objectives and Policy Within CARICOM|134
5|5.3.3.4 Summary of Regional Competition Law Objectives and Embeddedness|136
2|Chapter 6: Dimension II: Legislative Competence on Competition Law|137
3|6.1 Unification of Laws Through a Wide Definition of the Territorial Scope of Application: The Case of WAEMU|137
4|6.1.1 Implications on Member States with Existing and Operative National Competition Law Systems|140
4|6.1.2 Implications on Member States Without Prior or Operative National Competition Law Systems, Including Member States with Prior Sectorial Regulation|145
4|6.1.3 Summary of the Unification of Substantive Laws in the WAEMU|146
3|6.2 Convergent Standards Through Minimum or Partial Harmonization of Substantive Laws: The Case of CARICOM|148
4|6.2.1 Obligation to Enact National Substantive Competition Laws and a National Competition Authority for the Member States as Subjects of International Law in the CARICOM|149
5|6.2.1.1 CARICOM Model Law on Competition|152
5|6.2.1.2 Lack of Implementation Deadline|153
5|6.2.1.3 The Possible Erosion of Minimum Competition Law Standards Through the Establishment of Special Sectorial Rules and Policies|154
5|6.2.1.4 Implications of the Lack of Direct Effect for Competition Law Enforcement|155
4|6.2.2 Implications for National Competition Law Regimes with Existing Competition Laws|158
4|6.2.3 Implications for Member States Without Prior National Competition Law Regimes|159
4|6.2.4 Summary of Convergent Standards Through Minimum or Partial Harmonization in a System of International Law|161
3|6.3 “Soft” Harmonization Through Non-Binding Guidelines: The Case of the AndeanC|162
4|6.3.1 Obligation to Establish a National Authority in the AndeanC in Charge of the Application of Regional Competition Law|163
4|6.3.2 The “Downloading Option” in the AndeanC|164
4|6.3.3 Implications for Member States Without Competition Laws|166
4|6.3.4 Implications for Existing Competition Law Systems in the Member States|172
4|6.3.5 Summary of “Soft Harmonization” Through Non-Binding Guidelines in the AndeanC|174
2|Chapter 7: Dimension III: Organization of Enforcing Agencies|177
3|7.1 Regional Competition Law Authorities|177
4|7.1.1 Specialized Independent Commission Model: The CARICOM Example|178
5|7.1.1.1 The General Structure|178
5|7.1.1.2 The Constitutional Design of the CARICOM Competition Commission: The Regional Judicial and Legal Service Commission|179
5|7.1.1.3 Conclusion on the CARICOM Competition Commission|182
4|7.1.2 Non-Specialized Directorate Model: The Andean Example|183
5|7.1.2.1 The General Structure|183
5|7.1.2.2 Competition Law Cases Dealt with by the Secretariat General|186
5|7.1.2.3 Conclusions on the Secretariat General of the AndeanC|186
4|7.1.3 Specialized Directorate Model: The Case of the WAEMU|187
5|7.1.3.1 The General Structure|187
5|7.1.3.2 Competition Law Cases of the WAEMU Commission|189
5|7.1.3.3 Conclusions on the Directorate of Competition in the WAEMU|191
3|7.2 National Competition Authorities Prior and After the Installation of the Regional Competition Authority|192
4|7.2.1 National Competition Law Structures|192
4|7.2.2 National Competition Law Enforcement and National Sectorial Regulation|194
4|7.2.3 Conclusions on National Competition Law Enforcement and Institutional Structures|196
2|Chapter 8: Dimension IV: Enforcement Procedures of Regional Competition Law in the Narrow Sense|197
3|8.1 Regional Competition Law Enforcement Procedures|198
4|8.1.1 Regional Competition Law Investigations|198
5|8.1.1.1 Trinidad Cement Limited v CARICOM Competition Commission: Judgement of the Caribbean Court of Justice|206
5|8.1.1.2 The Caribbean Court of Justice’s obiter dictum on the CARICOM Competition Commission’s Rules of Procedure|210
4|8.1.2 Conduct of and Powers During Investigations|212
4|8.1.3 Decision-Making Power and Its Implementation|218
5|8.1.3.1 Decisions and Possible Measures|218
5|8.1.3.2 Enforcement of Measures|220
5|8.1.3.3 Claims for Damages, Declarations and Injunctions and Criminal Law Liability for Breaches of Regional Competition Law|222
4|8.1.4 Advocacy Function and Competition Promotion|230
3|8.2 Cooperation Mechanisms with National Structures|235
4|8.2.1 Specialized Inter-governmental Cooperation Bodies|235
5|8.2.1.1 The Advisory Committee on Competition in the WAEMU|236
5|8.2.1.2 The Andean Committee on the Defence of Free Competition|240
6|Resolutions Concerning the National Confederation of Palm-Growers and Palm Oil Enterprises (Peru) vs. Fund for Price Stabilisation for Palm-Oil and Its Fractions (Colombia)|242
6|Conflicts of Competence Between the Andean Committee on the Defence of Free Competition and the Secretariat General in the Context of Article 36 of Decision 608|246
5|8.2.1.3 Summary of Specialized Inter-governmental Cooperation Organs|248
6|Internal Structure of the Committees|248
6|Requirement of National Initiatives and Commitment|250
7|Political Will to Participate|250
7|Impact of the Level of Experience|251
7|Rules on Confidentiality|251
6|The Need for Regional Initiative|252
6|Does Timing Matter?|252
6|Creating Vertical and Horizontal Cooperation Via Inter-governmental Cooperation Bodies|253
4|8.2.2 General Cooperation and Policy Coordination Policy Bodies: CARICOM’s Council of Trade and Economic Development|254
5|8.2.2.1 Internal Structure|255
5|8.2.2.2 Requirement of National Initiative|257
6|Political Will of Member States to Participate in the COTED|257
6|Influence of the Level of Competition Law Experience in the COTED|257
5|8.2.2.3 The Need for Regional Initiative for Cooperation Through the COTED|258
5|8.2.2.4 Timing and the Creation of Vertical and Horizontal Cooperation|259
5|8.2.2.5 Summary on General Cooperation Bodies in Regional Competition Law Enforcement|260
3|8.3 Control of Regional Competition Law Enforcement|261
4|8.3.1 Administrative Appeal|261
4|8.3.2 Judicial Appeal Through a Regional Court of Justice|262
5|8.3.2.1 Original and Appellate Jurisdiction of a Regional Court|264
5|8.3.2.2 Preliminary Reference Rulings and Their Impact on Regional Competition Law|265
5|8.3.2.3 Advisory Opinions by the Regional Court|271
5|8.3.2.4 Actions for Annulment|272
5|8.3.2.5 Non-compliance Actions|277
5|8.3.2.6 Failure to Act Complaints|281
5|8.3.2.7 Summary of Control of Regional Competition Law Decisions|282
2|Chapter 9: Dimension V: General Legal Principles Governing the Allocation of Competences in RTAs and the Notion of Time|285
3|9.1 The Principles of Direct Application and Direct Effect of Regional Competition Law|286
3|9.2 Primacy of Regional Law in Exclusive, Concurrent or Parallel Competition Law Enforcement|287
4|9.2.1 Exclusive, Concurrent or Parallel Competition Law Enforcement in RTAs|287
4|9.2.2 Primacy of Community Competition Law in a System of Centralized and Exclusive Application|288
4|9.2.3 Primacy of Community Competition Law in a System of Concurrent Application|289
4|9.2.4 Primacy in a System of Parallel Competition Law Enforcement and in a Dualist System|290
3|9.3 The Principles of Effectiveness and Equivalence|292
3|9.4 The Principle of Subsidiarity|293
3|9.5 The Principle of Procedural and Institutional Autonomy in the Application of Regional Competition Law and Policy|294
3|9.6 Mandatory Lead Jurisdiction|296
3|9.7 Quantitative Thresholds|298
3|9.8 Conclusions on the General Legal Principles Governing the Allocation of Competences in RTAs|299
2|Chapter 10: Dimension VI: The Notion of Time—Adaptability and Sustainability of Regional Competition Law Enforcement|301
3|10.1 General Legal Adaptability of the Regional Competition Law System|301
3|10.2 Timing of Regional Competition Law Implementation|304
1|Part III: The Optimal Degree of Centralization and Decentralization: Evaluation of the Three Regional Competition Law Systems with Regard to the Enforcement of Competition Law in Developing Countries|308
2|Chapter 11: General Conclusions on the Efficacy of a Regional Competition Law System|309
3|11.1 The Dynamic Relationship Between Regional and National Competition Policy|309
3|11.2 From Regional to International Economic Integration: Creating a Common Market|312
4|11.2.1 Redefining the Common Market in Developing Countries|312
4|11.2.2 Public vs. Private Restraints to Inter-state Trade Between Developing Countries|316
4|11.2.3 The Overarching Incentive of a Common Market for Regional Competition Law Enforcement|317
4|11.2.4 Larger Integration and Open Regionalism: Opportunities or Threats to RTAs in Developing Countries?|319
3|11.3 Creating a Credible Threat: In Particular with Regard to International Anticompetitive Practices|320
4|11.3.1 The Relevance of the Creation of a Common Market|320
4|11.3.2 Increasing the Political Weight of a Competition Authority’s Decisions|321
4|11.3.3 Necessity to Provide Regional Competition Authority with Sufficient Enforcement Powers|322
3|11.4 Increasing Legal Certainty and Convergence|323
4|11.4.1 The Relevance of Harmonization of Competition Law and Policy Within an RTA Among Developing Countries|324
4|11.4.2 The Importance of Harmonization in Attracting Foreign Direct Investment (FDI) and the Intensification of Intra-community Trade|328
4|11.4.3 Different Forms and Consequences of Imperfect Harmonization|329
5|11.4.3.1 Actual Record of Conflicting National and Regional Enforcement|330
5|11.4.3.2 Lack of Harmonization of Competition Law Procedures and Institutions: Harmonization as a Precondition for Cooperation?|330
3|11.5 The Competition Authority’s Independence with Regard to Competition Law Enforcement in Developing Countries|333
4|11.5.1 Furthering Greater Independence in Regional and National Competition Law Enforcement|333
4|11.5.2 The Difficult Notion of Independence of Competition Authorities in Developing Countries|335
3|11.6 Overcoming the Lack of Resources in RTAs Consisting of Developing Countries|338
4|11.6.1 The Interdependence Between the Attribution of Competences and the Required Resources|338
4|11.6.2 The Lack of Skilled Staff|339
4|11.6.3 Preconditions for Network Efficiencies|341
4|11.6.4 Cumulative Sanctions as an Increased Deterrent Effect?|342
3|11.7 Creating and Promoting a Competition Culture|343
4|11.7.1 The Necessity to Establish a National Competition Law Culture|343
4|11.7.2 The Necessity to Establish a Competition Law Culture with Regard to Regional Competition Law|345
3|11.8 The Problem of Accessibility and Private Enforcement|347
4|11.8.1 Accessibility of Regional Competition Authorities in Infringement Procedures of Regional Competition Law|347
4|11.8.2 The Role of National Judges in Private Enforcement of Regional Competition Law|349
3|11.9 The Political Dimension of Regional Competition Law Enforcement|351
3|11.10 The Importance of Preserving Flexibility in the Framework of a Regional Competition Law Structure|353
3|11.11 General Conclusions|355
2|Chapter 12: The Optimal Degree of Centralization or Decentralization: Recommendations for and Implications of Certain Institutional Designs|357
3|12.1 Dimension I: Vertical Allocation of Competences Through the Content of Regional Substantive Competition Law|357
4|12.1.1 Territorial Scope of Application: The Requirement of Cross-Border Trade|357
4|12.1.2 The Notion of Appreciable Effect and the De-Minimis Clause|360
4|12.1.3 Dealing with State-Related Anticompetitive Practices|361
4|12.1.4 The Inclusion of Individual Exceptions, Exemptions and Special and Differential Treatment Provisions|361
4|12.1.5 Objectives of Regional Competition Law|362
4|12.1.6 The Inclusion of Regional Merger Policy|363
4|12.1.7 Competition Advocacy|364
3|12.2 Dimension II: Implications for the Vertical Allocation of Competition Law Competences|365
4|12.2.1 Implementation of National Competition Law Structures: Informal Incentives vs. Obligations|365
4|12.2.2 Range of Implementation Obligations and Learning Direction: Top-down and Bottom-up|367
4|12.2.3 Incentives for Member States to Harmonize National Substantive Competition Law|368
4|12.2.4 Regional Obligations on National Procedural Laws and the National Competition Law Authority’s Design|370
4|12.2.5 Horizontal Demarcation of Competences Between National Sector Regulation and Regional Competition Law|371
3|12.3 Dimension III: Implications Arising Out of the Institutional Design of a Regional Competition Authority|372
3|12.4 Dimension IV: Measures to Shape Competition Enforcement Procedures|375
4|12.4.1 Regional Competition Law Investigations|375
5|12.4.1.1 Right-Holders to Request an Investigation|375
6|Direct Accessibility of the Regional Competition Authority for the Private Sector|376
6|Ex Officio Power of a Regional Competition Authority to Initiate Investigations|377
6|Competence to Decide on Cross-Border Effect|378
5|12.4.1.2 Prior Notification Requirements|379
4|12.4.2 Conducting Regional Competition Law Investigations|380
4|12.4.3 Decision-Making Power and Enforcement|382
4|12.4.4 The Enforcement of Individual Exceptions|383
4|12.4.5 Private Enforcement Before National Judiciary|385
4|12.4.6 Cooperation Mechanisms with National Competition Law Structures|387
4|12.4.7 Accountability and Ex Post Control of Regional Competition Law Enforcement|390
3|12.5 Dimension V: Principles of Regional Competition Law Enforcement|392
4|12.5.1 International Law and Supranational Competition Law Systems|392
4|12.5.2 The Principles of Effectiveness and Subsidiarity|393
4|12.5.3 Prerogative Competence Allocation Powers and the Right to Determine the Competent Jurisdiction|394
4|12.5.4 Principle of Primacy of Regional Law in Exclusive, Concurrent or Parallel Competition Law Enforcement|395
3|12.6 Dimension VI: Dynamics of Regional Competition Law Enforcement|396
2|Chapter 13: Proposal on Re-Allocation of Competences in the WAEMU, AndeanC, CARICOM|399
3|13.1 WAEMU: “Controlled Decentralization” with Centralized Standards|399
3|13.2 AndeanC: Strengthening the Advocacy Function of the Secretariat General|404
3|13.3 CARICOM: Moderate Centralization of Enforcement and Harmonization of Competition Law Standards|409
2|Chapter 14: Guidelines on the Institutional Design of Regional Competition Law Enforcement|416
3|14.1 Number of Member States and Their Economic Heterogeneity|416
3|14.2 Intra-Community Trade|417
3|14.3 Particularities of Prevailing Anticompetitive Practices and Actors|417
3|14.4 Institutional Capacities and Resources|417
3|14.5 Existence, Efficacy and Diversity of National Competition Law Systems|417
3|14.6 Existence of Competition Culture in Member States|418
3|14.7 Political Will to Cede Sovereignty|418
3|14.8 Aspect of Time and Sequencing|418
3|14.9 Goals of Integration and Regional Competition Law|419
3|14.10 Existence of a Conflict Resolution Mechanism at the Regional Level|419
3|14.11 Degree and Scope of General Integration (Including Socio-Cultural and Political)|419
1|Bibliography|420