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Über dieses Buch

The book examines the potential for regional competition law systems as enforcement tools in developing countries, based on a case study of the West African Economic and Monetary Union, the Andean Community and the Caribbean Community.

It analyses the allocation of enforcement competences between the regional/supranational and the national level and formulates detailed guidelines on the optimal degree of centralization or decentralization.

The book addresses all readers that are interested in the enforcement of competition law in developing countries. Moreover, it provides practical insights for public institutions that wish to identify or prevent possible misallocation of competences within regional competition law systems.

Inhaltsverzeichnis

Frontmatter

Part I

Frontmatter

Chapter 1. Overview of the WAEMU, the AndeanC and the CARICOM

Abstract
The institutional design of regional integration varies from bilateral cooperation agreements to custom unions. The degree of centralization or decentralization usually correlates to the depth of integration. Generally, South-South agreements tend to aim at deeper integration than North-South agreements. This finding is supported by the design of the WAEMU, the AndeanC and the CARICOM. They all constitute economic unions that aim at the creation of a common market.
Julia Molestina

Chapter 2. Competition Law in Developing Countries

Abstract
The question of whether competition law implementation and enforcement constitutes a relevant concern for developing countries is certainly legitimate. In fact, it was a common view that the implementation of competition laws in developing countries in the first place was not a sovereign decision of these countries, but one that was obtruded by the pressure of foreign international institutions. In the absence of liberalized markets in developing countries, there was little incentive to support the introduction and development of competition laws. Rather, the enactment of competition laws was in some instances made a precondition by the developed world for economic cooperation and trade with developing countries. This perceived imposition, occurring in the context of local markets marked by strong state intervention, constituted and still constitutes a hurdle to effective competition law enforcement in developing countries.
Julia Molestina

Chapter 3. Terms and Premises of Regional Competition Law Enforcement

Abstract
Clearly, the institutional design of a RTA does not constitute the only factor that determines the success of regional competition law enforcement. General enforcement difficulties related to economical, socio-cultural or political parameters have an essential impact. Yet the correlation between these prevailing circumstances and a certain institutional design cannot be neglected, as institutions do not constitute abstract and isolated constructs. Rather, institutions can be defined as a set of rules that set a standard of behaviour for the members of a society. On the other hand, organizations are groups of individuals that follow a common purpose in order to reach a common goal. Organizations, such as public agencies, are created in order to render these institutions effective and to enforce the set of rules. The interplay of both determines the framework of rules for members in a society. Institutions and their particular design are thus entwined with a society and its members: on the one hand they are defined by the society’s purpose and on the other hand they set the rules for the society.
Julia Molestina

Chapter 4. Structure of the Study

Abstract
Irrespective of the strong influence of the European competition law system, the WAEMU, the AndeanC and the CARICOM have adopted different institutional designs, ranging from a decentralized system, in which member states and national competition law authorities are vested with most competition law enforcement competences (e.g. CARICOM) to a centralized system, in which the main focus of competition law enforcement remains regional (e.g. WAEMU).
Julia Molestina

The Institutional Design of Regional Competition Law Enforcement in the WAEMU, AndeanC and CARICOM

Frontmatter

Chapter 5. Dimension I: The Content of Substantive Law

Abstract
All of the three regional trade agreements entail provisions that prohibit agreements between undertakings that have the object or effect to restrict competition: Article 88 lit. a) Treaty of Dakar; Articles 4, 7 of Decision 608; Article 177(1) lit. a), Article 177(2) of the Revised Treaty of Chaguaramas.
Julia Molestina

Chapter 6. Dimension II: Legislative Competence on Competition Law

Abstract
The vertical allocation of material competences is not only determined by the substantive law and its scope of application. It also comprises the question of legislative competence, meaning the institutional organ that is entitled to legislate on competition matters (“legislative primacy” on competition matters). An obligation for the national legislator to completely harmonize its national competition laws withdraws national legislative discretion. At the same time, the impact of the scope of application of a regional law is reduced if the national and regional law’s content is actually the same. On the other hand, complete legislative sovereignty of a member state of an RTA to draft its competition law would be rendered obsolete by an extremely narrow scope of application of national competition law.
Julia Molestina

Chapter 7. Dimension III: Organization of Enforcing Agencies

Abstract
The institutional design of and the interplay between the competent competition law authorities and other bodies of law that are involved in regional competition law enforcement is of crucial importance in order to understand enforcement processes in the WAEMU, the AndeanC and the CARICOM. One thus has to identify the actors that participate in the enforcement process in the narrow sense, in particular the decision-making process. Moreover, one should also consider and evaluate the impact and reach of possible controlling mechanisms by other organs, such as judicial review or mandatory cooperation mechanisms.
Julia Molestina

Chapter 8. Dimension IV: Enforcement Procedures of Regional Competition Law in the Narrow Sense

Abstract
In order to draw conclusions on the vertical allocation of competences, the enforcement in the narrow sense of regional competition law is of vital importance. Enforcement is a multi-layered process, which at each stage might attribute competition law competences to different entities.
Julia Molestina

Chapter 9. Dimension V: General Legal Principles Governing the Allocation of Competences in RTAs and the Notion of Time

Abstract
Regional integration is often automatically associated with the concept of supranationality. However, while supranationality might have constituted a key driver in the European competition and general economic system, it is not an indispensable condition for a regional competition law regime’s success. Moreover, the concept of supranationality can materialize in different forms, reflecting different degrees of integration and centralization. As the interplay of regional bodies, substantive law and enforcement competences has shown, inter-governmentalism and supranationality do not appear as alternative forms of regional integration, but cumulative factors that shape the overall design of an agreement. Yet, the existence of both factors also bears potential for conflicts and calls for a balancing act. A regional competition law system in particular has to provide for mechanisms and principles that resolve conflicts that might arise from an ambiguous allocation of competences.
Julia Molestina

Chapter 10. Dimension VI: The Notion of Time—Adaptability and Sustainability of Regional Competition Law Enforcement

Abstract
Regional integration is a dynamic process in the first place. RTAs and their competition laws do not represent rigid legal constructions, but constitute dynamic systems that need to adapt to changing circumstances. This in particular applies to a regional competition law, because ideally with the emergence of domestic competition law structures, also cultural and political awareness and commitment towards competition law will increase. Therefore, the question is whether the legal systems of the WAEMU, the AndeanC and the CARICOM are generally capable of (quickly) adapting to changes. Have the competition law systems of the WAEMU, the AndeanC and the CARICOM changed over time? In a second step one should then evaluate whether the regional competition policies were introduced at a “good” moment and whether changes to the regional competition law system led to efficiency gains.
Julia Molestina

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

Frontmatter

Chapter 11. General Conclusions on the Efficacy of a Regional Competition Law System

Abstract
Before evaluating the different degrees of centralization or decentralization, this section sheds some light on the main difficulties and incentives for the implementation of national competition law structures and regional competition law enforcement that arose in the context of a regional competition law system.
Julia Molestina

Chapter 12. The Optimal Degree of Centralization or Decentralization: Recommendations for and Implications of Certain Institutional Designs

Abstract
Having defined the elements that shape the degree of centralization or decentralization of competition law enforcement in the WAEMU, the AndeanC and the CARICOM, the next section will draw general conclusions and discuss the implications for the institutional design of competition law enforcement in developing countries. This mainly raises two questions: (1) Which implications result from a specific institutional design of competition law enforcement? The answer to this question will be given for the specific “dimensions” of competition law enforcement in an RTA. (2) What are the conditions in the sense of “competition constraints” that determine the efficacy of a certain institutional competition law enforcement design?
Julia Molestina

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

Abstract
Applying the principles developed above to the WAEMU, the AndeanC and the CARICOM regional competition law system, a partial re-allocation of competences will be recommended in the following section.
Julia Molestina

Chapter 14. Guidelines on the Institutional Design of Regional Competition Law Enforcement

Abstract
Based on a comparison and analysis of regional competition law enforcement in the WAEMU, the AndeanC and the CARICOM, one can identify certain “competition constraints” that impact regional competition law enforcement. In accordance with the slogan “one size does not fit all”, the experiences described in this study demonstrate that these competition constraints do not constitute parameters that will never change, but constitute interrelated and dynamic factors that cause different outcomes in different RTAs. As an attempt to summarize the results of the previous analysis, eleven broad policy recommendations regarding the degree of centralization or decentralization of regional competition law enforcement can be formulated.
Julia Molestina

Backmatter

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