13. Proposal on Re-Allocation of Competences in the WAEMU, AndeanC, CARICOM

See above on the territorial scope of application, Part III, Dimension I: Sect. 12.​1.​1.

Part III, Dimension I: Sect. 12.​1.​1.

Namely, Article 4 of Regulation no. 03/2002/CM/UEMOA, Articles 4(1) and 4(3) of Regulation no. 02/2002/CM/UEMOA. In contrast to the European merger control, the WAEMU offers a control based on the provisions on abuse of dominant position. For more details see Part II, Dimension I: Sect. 5.​1.​4.

Drexl in this context states: “Unlike in the EU, regional integration systems in the developing world should also be concerned about the quality of substantive law in the member states.” Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231, 248.

Bakhoum/Molestina, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 89, 110.

On the “downloading option” in the AndeanC, see Part II, Dimension II: Sect. 6.​3.​2.

Under the ongoing reform, there is a proposed Directive that defines guidelines for national competition authorities.

On the possibility to establish mixed national competition authorities, see Part III, Dimension III: Sect. 12.​3. The competition authority in Barbados, the Fair Trading Commission, offers a positive example. It is a mixed utility regulation, consumer protection and competition policy authority. For more information see Sampson/Sampson, in: Mehta/Evenett, Politics Triumphs Economics?, 2009, pp. 327, 347ff.

The severity of competition law infringements should of course depend on the particular developing country’s problems and its economic or socio-political situation.

OHADA does not have a regional competition law yet.

See above, case regarding the “GAZODUC” project in the WAEMU, during which the WAEMU Commission argued that national public health interests can justify temporary measures by member states, but that they must not distort the common market or create entry barriers to it, Part II, Dimension IV: Sect. 8.​1.​1.

With regard to potential conflicts and solutions to conflicting jurisdictions, see Ngom, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 116, 127ff.; Coulibaly, Le Droit de la Concurrence de l’Union Économique et Monétaire Ouest Africaine, 43–44 Rev. burkinnabé de droit, 24ff. (2003).

Part II, Dimension III: Sect. 7.​1.​3.

Such sectors encompass nutrition, access to health, transportation etc.

See above on the Advisory Committee on Competition in WAEMU, Part II, Dimension IV: Sect. 8.​2.​1.​1.

Already under the current legal framework the Advisory Committee on Competition allows for the participation of national sector regulators or professional associations, in case the Committee has to decide on a sector that concerns the before-mentioned groups; see Article 4 of Reglement d’Execution no. 007/2005/COM/UEMOA.

Articles 3, 7 and Chapter I of Regulation no. 03/2002/CM/UEMOA.

Article 88(1) of the Treaty of Dakar.

Part II, Dimension V: Sect. 9.​1.

Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 152.

In this context, the projects INTERCAN I and the establishment of an Andean Centre for the Implementation of Policies of Regional Integration (Centro Andino para la Implementación de Políticas de Integración Regional – CAIPIR) should be mentioned as positive developments. Both aim at the facilitation of and the creation of incentives for Member States to apply and implement regional decisions, which are of particular relevance for economic integration in the AndeanC. On INTERCAN I, see <http://​www.​comunidadandina.​org/​intercan.​htm> accessed 11 November 2018. Also with regard to the CAIPIR, see Commission of the AndeanC, Decision 723 of the 27 November 2009 and 10 December 2009 “Proyecto INTERCAN I de Apoyo a la Integración Económica Regional de la Comunidad Andina”. A summary of both projects is given by Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 153.

One has to recall that Decision 608 reforms the former Decision 285, which suffered from several inefficiencies with regard to its substantive competition law provisions. See above Part I, Sect. 1.​2.​2 Development of regional competition policy in the AndeanC.

Part II, Dimension I: Sect. 5.​1.​3.

This study only deals with the Decisions 283, 456 and 457 very superficially, because a more detailed analysis would exceed the scope of this research.

Articles 7, 8 and 9 of Decision 608.

Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 144.

Part II, Dimension V: Sect. 9.​2.​3.

This was the case in Bolivia and Ecuador, see above Part II, Dimension II: Sect. 6.​3.​3 and Part II, Dimension I: Sect. 5.​2.​2.​2.

For an overview of the Andean and national competition law regimes in 2012, see Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 143. In addition, the new competition law of Ecuador also covers a leniency program.

One major crisis arose in the context of the withdrawal of Venezuela in 2006. There is also concern that open regionalism hampers the integration movement of the AndeanC. See above on the notion of “open regionalism” in the AndeanC, Part I, Sect. 1.​1.​2. With regard to critics of the AndeanC, see among others Javier Garvich, “¿Por qué ha fracasado la Comunidad Andina de Naciones?”, 24 April 2006 <http://​www.​terra.​com.​pe/​noticias/​articulo/​html/​act512774.​htm> accessed 11 November 2018. Rebutting the general uselessness of the AndeanC, Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 151.

In the same vein, Cortázar argues in favour of greater private-sector involvement in regional competition law enforcement in the AndeanC, Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 154ff.

In the long run, if the Secretariat General actually initiates an investigation or makes a decision, it should also be included as a data provider.

This finding similarly applies to the WAEMU and the CARICOM.

Yet it should not abolish the national competition authorities’ discretion. Determined priorities should remain non-mandatory.

This can be achieved through reciprocal information exchange obligations.

See Part II, Dimension I: Sect. 5.​1.​5.​3 and Part II, Dimension I: Sect. 5.​1.​2.

The overarching importance of the CSME is expressed in the preamble of the Revised Treaty of Chaguaramas and with regard to competition policy in Article 169(1) of the Revised Treaty of Chaguaramas.

In order to guarantee uniform application, the COTED should not be vested with decision-making competences.

Articles 182 and 183 of the Revised Treaty of Chaguaramas.

See on the definition of competitive neutrality in Part II, Dimension I: Sect. 5.​1.​3.

Stewart, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 161, 180.

See Articles 142, 143, 144, 146 of the Revised Treaty of Chaguaramas. Generally, the COTED is vested with several policy-making and enforcement powers. See Part II, Dimension IV: Sect. 8.​2.​2.

Generally, the accommodation of competition agencies and industry regulatory authorities has been a problem in the Caribbean. Sampson/Sampson in this regard state: “Unlike most developing countries public regulation has been a standard feature in the Caribbean since the 1960s. It has therefore been much easier to accommodate the market changes brought about by liberalisation and wider private participation in the infrastructure industries privatisation. The question in the Caribbean, given the small size of the countries has been what should be the appropriate institutional structures to accommodate competition agencies and industry regulatory authorities?” Sampson/Sampson, in: Mehta/Evenett, Politics Triumphs Economics?, 2009, pp. 327, 331.

Part II, Dimension I: Sect. 5.​3.​1.​3.

Article 183(2) of the Revised Treaty of Chaguaramas.

Part II, Dimension IV: Sect. 8.​3.​2.

Part II, Dimension IV: Sect. 8.​2.​2.​5.

These are Barbados, Jamaica and Trinidad and Tobago.

Article 23(2) of the Revised Treaty of Chaguaramas: “(…) In the recruitment of such staff, consideration shall be given to securing the highest standard of efficiency, competence and integrity, bearing in mind the principle of equitable geographical distribution.”

Statements made by Kusha Haraksingh, current chairman of the CARICOM Competition Commission, in an interview with the author conducted in Port-of-Spain, Trinidad and Tobago, 29 October 2012.

This argument was made by Stewart, cited by Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 307.

Statements made by Kusha Haraksingh, current chairman of the CARICOM Competition Commission, in an interview with the author conducted in Port-of-Spain, Trinidad and Tobago, 29 October 2012.

Article 180(1) of the Revised Treaty of Chaguaramas.

Statements made by Kusha Haraksingh, current chairman of the CARICOM Competition Commission, in an interview with the author conducted in Port-of-Spain, Trinidad and Tobago, 29 October 2012.

On the necessity to provide a regional competition authority with sufficient enforcement powers Part III, Sect. 11.​3.​3.

With regard to the disadvantages of applying the ex officio investigation right at an early stage of regional competition law enforcement, see above Part III, Dimension IV: section “Ex Officio Power of a Regional Competition Authority to Initiate Investigations”.

See above Part II, Dimension IV: Sect. 8.​1.​1.​2.

Stewart, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 161, 177.

Statements made by Kusha Haraksingh, current chairman of the CARICOM Competition Commission, in an interview with the author conducted in Port-of-Spain, Trinidad and Tobago, 29 October 2012.