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Bulletin n°3 | Friday, July 7, 2017
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About this bulletin
This week, experts are gathering in Geneva for UNCTAD's Intergovernmental Group of Experts (IGE) on Competition Law and Policy, a standing body established under the United Nations Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (UN Set). The UN Set is the founding multilateral agreement on competition policy. With this bulletin, CUTS is keeping you posted on the proceedings.
@UNCTAD #UN4Competition
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PEER REVIEW
Voluntary peer review of competition law and policy: Argentina
This session examined a peer review recently conducted to assess the legal framework and enforcement experience in Argentina. Competition expert Luis Berenguer first presented the history and current context of regulation in Argentina, including covered anticompetitive practices, as well as merger control and institutional system. He noted in particular the inflationary process in the amount of the fines.
Reacting to the report‘s conclusions, Argentina’s competition authority indicated that this peer review could help better designing and implementing competition policies at a time when regulation improvements are ongoing. He recalled that a draft bill is under review in congress, whose main goals include: (i) Deter collusion and monopolization (actual legal framework hinders investment and promote anticompetitive practices); (ii) Pursue independence, transparency, efficiency and predictability of Agency decisions; (iii) Update regulatory framework; and (iv) Achieve international best practices.
In the ensuing interactive discussion, competition authorities of Italy, Brazil and United States shared their experiences in competition law enforcement, and made recommendations to improve competition law enforcement in Argentina.
Finally, UNCTAD invited development partners and donors to support a capacity-building project which was designed to effectively implement the peer review’s recommendations.
On the panel were Luis Berenguer, Consultant, UNCTAD; Margarida Matos Rosa, President, Portuguese Competition Authority; Giovanni Pitruzzella, President, National Competition and Market Authority, Italy ; Paulo Burnier da Silveira, Counselor, Administrative Council for Economic Defense, Brazil ; Russell Damtoft, Associate Director, Office of International Affairs, Federal Trade Commission, United States; Hector Marcelo Cima, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Argentina to the United Nations Office in Geneva ; Esteban Greco, Chairman, National Commission for the Defence of Competition (CNDC), Argentina.
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MODEL LAW
Revision of the Model Law on Competition
In this session, UNCTAD presented revisions recently operated in two chapter of the Model Competition Law, namely: (i) Chapter II, on definitions and scope of application; and (ii) Chapter VII, on the relationship between the competition authority and regulatory bodies. Both revised chapters were complemented with additional examples from various jurisdictions, both developed and developing, as well as updates of country examples to reflect changes in laws or institutions.
In Chapter II specifically, the commentary text under sub-section “scope of application” has been updated to reflect modern competition law on issues related to state restraints, public interest, and the principle of competitive neutrality. In addition, a new table of examples from different competition laws was added on the prohibition of anti-competitive state restraints.
In Chapter VII, the commentary text was updated to reinforce the role of competition authorities in regulation through market investigations and advocacy. A new section on the collaborative economy titled “Next challenges facing competition and regulation” was also added, as well as a new table on examples of competition authorities’ responses to regulation of the collaborative economy.
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PER REVIEW
Report of implementation of Peer Review Recommendations: Tanzania
This presentation by UNCTAD took stock of the implementation of the peer review recommendations in Tanzania. It was recalled that such recommendations mainly pertained to the legislative review of the Fair Competition Act (FCA), and included: (i) to address some implementation challenges; (ii) coverage of substantive enforcement; (iii) institutional framework and its operations; (iv) relationship with sector regulators; (v) National Consumer Associations Council (NCAC); (vi) FCC and FC tribunal relations.
After presenting some of the extent to which recommendations led or did not lead to amendments in the FCA, the presenter reviewed the experience gained since the peer review. In particular, she noted the following: (i) better relations between FCC and regulators, leading to better funding arrangements; (ii) some regulators have assumed oversight role over FCC, e.g. by requiring annual reports as a prerequisite to additional fund; (iii) visibility of the FCC has improved; (iv) NCAC is defunct and non-functional because of lack of funding; (v) sector regulatory legislation empowers agencies to set up Consumer Consultative Councils; (vi) FCC with proposed amendments will have power to enforce consumer provisions; (vii) FCC has been very active and visible in counterfeit actions and merger control.
On the way forward, she noted that a open window exits for more action as proposed amendments have been sent back to the Ministry for clarification. The government should also consider additional provisions for amendment. Finally, it was recommended that FCC and UNCTAD develop a 3-year capacity-building project, for which sources of funding would need to be identified.
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CLOSING
Closing Plenary
The afternoon session concluding this sixteenth IGE on Competition Law and Policy was dedicated to the deliberations and adoption of the meetings’ conclusions.
Most discussions revolved around the choice of two topics for studies to be prepared by UNCTAD and discussed at the next IGE session. It was recalled that the proposed topics drew from the four clusters identified by the UN Set till 2019, i.e.: (i) Competition and inclusive and sustainable development; (ii) The best practices in the design and enforcement of competition law and policy and its interaction with consumer protection; (iii) The provision of capacity-building and technical assistance; (iv) International cooperation and networking.
Following discussions and consultations, delegates decided on the following two topics: (i) Challenges faced by developing countries in the regulation of and the competition in the maritime transport sector. It was recalled that UNCTAD’s 2014 review of maritime transport showed that it represents 80% global trade value. Liner shipping conferences have been exempted from competition rules for a long time, but the status quo has been challenged over the past decade; and (ii) Competition issues in the sale of audiovisual rights in major sports events. In this area, it was recalled that certain exclusivity clauses may interfere with competition, as suggested by the over 60 decisions taken in Europe in the recent past, particularly in football.
Besides this, delegates also requested UNCTAD to: (i) establish a discussion group on international cooperation, to pursue the exchanges and debates on the modalities for facilitating cooperation under section F of the UN Set; (ii) prepare a revised and updated version of chapters 5 and 6 of the Model Law on Competition; and (iii) prepare in cooperation with other international organizations a compilation of best practices relating to the implementation of competition law and policy to assist developing countries and countries with economies in transition.
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Let's make December 5 @UN World Competition Day! @CMAgovUK, @FAS_RF, @KKVse and 20+ other countries already supported the call.
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