PROTOCOL AMENDING THE TREATY ESTABLISHING
THE CARIBBEAN
COMMUNITY
(Protocol VIII: Competition Policy, Consumer Protection, Dumping and
Subsidies)
PREAMBLE
The States parties to the Treaty Establishing the Caribbean Community
(hereinafter referred to as "the Member States"):
Noting that competition policy has become more important
with the deepening of the integration arrangements and the liberalisation of the
markets of the Region;
Aware that the benefits expected from the establishment of
the CARICOM Single Market and Economy (CSME) may be frustrated
by anti-competitive business conduct whose
object or effect is to prevent, restrict, or distort competition.
Determined to promote and maintain competition
through the establishment and enforcement of applicable laws and rules.
Determined further to promote consumer interest and welfare;
Conscious that the provision of subsidies by Member States
and the practice of dumping could have an
adverse impact on the promotion and development of competition in the CSME;
Convinced that the application and convergence of national
competition policies and the cooperation of competition authorities in the
Community would promote the objectives of the CSME,
Have Agreed as follows:
PART I
PRELIMINARY
Article I
Use of Terms
1. In this Protocol, unless the context otherwise requires:
"anti-competitive business conduct" has the
meaning assigned to it in Article 30(i);
"business" means any activity carried on for gain
or reward or in the course of which goods or services are produced, manufactured
or supplied;
"Commission" means the
Competition Commission established by Article 30(c);
"Community" includes the CARICOM Single Market and
Economy to be established by the Protocols amending or replacing the Caribbean
Common Market Annex to the Treaty;
"Community Council of Ministers" (hereinafter
referred to as "the Community Council") means the Organ of the
Community so named in Article 8 (1) of the Treaty;
"competent authority" means the authority legally
authorised to perform a function;
"Conference" means the Conference of Heads of
Government of the Community;
"Council for Trade and Economic Development (COTED)"
means the Organ of the Community so named in Article 6(2)(a) of the Treaty, and
for the purposes of this Protocol shall be deemed to include the interim
Committee established pursuant to Rule 34 of the Rules of Procedure of the COTED;
"Court" means the Court established by Article III
of the Agreement Establishing the Caribbean Court of Justice;
"enterprise" means any person or
type of organisation involved in the production of or the trade in goods, or the
provision of services (other than a non-profit organisation);
"goods" means all kinds of property other than
real property, money, securities or choses in action;
"Regional Judicial and Legal Services Commission" means
the Commission established by Article V of the Agreement Establishing the
Caribbean Court of Justice;
"rules of competition" includes the rules set out
in Articles 30(i), 30(h) and 30(k) of this Protocol and any other rules made
pursuant to Article 30(b) 1(a)(i);
"Secretary-General" means the Secretary-General of
the Community;
"services" means services provided against
remuneration other than wages in an approved sector and "the provision of
services" means the supply of services:
(a) from the territory of one Member State into the territory of
another Member State;
(b) in the territory of one Member State to a service consumer of
another Member State;
(c) by a service supplier of one Member State through commercial
presence in the territory of another Member State; and
(d) by a service supplier of one Member State through the presence
of natural persons of a Member State in the territory of another Member State;
"subsidies" includes the subsidies set out in
Schedule V of Protocol IV - Trade Policy and shall apply only in relation to
goods;
"trade" includes any business, industry,
profession or occupation relating to the supply or acquisition of goods or
services;
"Treaty" means the Treaty Establishing the
Caribbean Community signed at Chaguaramas on the 4th day of July 1973 and
includes any amendments thereto which take effect either provisionally or
definitively (hereinafter referred to as "the Treaty").
2. Where in this Protocol there is a requirement for notification to
be given, such notification shall be in writing.
Article II
Amendment
Replace Articles 19 and 30 of the Caribbean Common Market Annex to the Treaty
with the following:
Article 30
Scope of Parts I, II and III
The rules of competition shall not apply to -
(a) combinations or activities of employees for their own reasonable
protection as employees;
(b) arrangements for collective bargaining on behalf of employers or
employees for the purpose of fixing terms and conditions of employment;
(c) business conduct within the meaning of Article 30(i) duly
notified to the COTED in accordance with Article 30(b);
(d) negative clearance rulings within the meaning of Article 30(l)
or exemptions within the meaning of Articles 30(m) and 30(o);
(e) activities of professional associations designed to develop or
enforce professional standards of competence reasonably necessary for the
protection of the public and approved by the Commission.
Article 30(a)
Objectives of Community Competition Policy
1. The goal of the Community Competition Policy shall be to ensure
that the benefits expected from the establishment of the CARICOM Single Market
and Economy (CSME) are not frustrated by anti-competitive business conduct.
2. In fulfilment of the goal set out in paragraph 1 of this Article,
the Community shall pursue the following objectives:
(a) promote and maintain competition and enhance economic efficiency
in production, trade and commerce;
(b) subject to the Treaty, prohibit anti-competitive business
conduct which prevents, restricts or distorts competition or which constitutes
the abuse of a dominant position in the market;
(c) promote consumer welfare and protect consumer interest;
Article 30(b)
Implementation of Community Competition Policy
1. In order to achieve the objectives of the Community Competition
Policy,
(a) the Community shall:
(i) subject to the Treaty, establish appropriate norms and
institutional arrangements to prohibit and penalise anti-competitive business
conduct;
(ii) establish and maintain information systems to enable
enterprises and consumers to be kept informed about the operation of markets
within the CSME;
(b) Member States shall:
(i) take the necessary legislative measures to ensure consistency
and compliance with the rules of competition and provide penalties for
anti-competitive business conduct;
(ii) provide for the dissemination of relevant information to
facilitate consumer choice;
(iii) establish and maintain institutional
arrangements and administrative procedures to enforce competition laws;
(iv) take effective measures to ensure access by nationals of other
Member States to competent enforcement authorities including the courts on an
equitable, transparent and non-discriminatory basis.
2. A Member State shall establish and maintain a national competition
authority for the purpose of facilitating the implementation of the rules of
competition.
3. A Member State shall require its national competition authority to:
(a) co-operate with the Commission in achieving compliance with the
rules of competition;
(b) investigate any allegations of anti-competitive business conduct
being allegations referred to the authority by the Commission or another
Member State .
(c) cooperate with other national competition authorities in the
detection and prevention of anti-competitive business conduct, and the
exchange of information relating to such conduct.
4. Nothing in this Article shall be construed as requiring a Member
State to disclose confidential information, the disclosure of which would be
prejudicial to the public interest or to the legitimate commercial interests of
enterprises, public or private. Confidential or proprietary information
disclosed in the course of an investigation shall be treated on the same basis
as that on which it was provided.
5. Within 24 months of the entry into force of this Protocol, Member
States shall notify the COTED of existing legislation, agreements
and administrative practices inconsistent with the provisions of this Protocol.
Within 36 months of entry into force of this Protocol, the COTED shall establish
a programme providing for the termination of such legislation, agreements and
administrative practices.
PART II
COMPETITION COMMISSION
Article 30 (c)
Establishment of the Competition Commission
For the purposes of implementation of the Community Competition Policy, there
is hereby established a Competition Commission (hereinafter called "the
Commission") having the composition, functions and powers hereinafter set
forth.
Article 30(d)
Composition of the Commission
1. The Commission shall comprise seven members appointed by the
Regional Judicial and Legal Services Commission to serve on the Commission. The
Regional Judicial and Legal Services Commission shall appoint a Chairman from
among the members so appointed. Notwithstanding the foregoing, the Chairman and
Members of the Commission shall be appointed by Conference on the recommendation
of the COTED as long as the Parties to the Agreement Establishing the Caribbean
Court of Justice are less than seven.
2. The Commission shall comprise persons, collectively
having expertise or experience in commerce, finance, economics, law,
competition policy and practice, international trade and such other areas of
expertise or experience as may be necessary.
3. A Commissioner shall be appointed for a term of five years and such
appointment may be renewed for a further period of not more than five years as
determined by the Regional Judicial and Legal Services Commission.
4. A Commissioner may be removed from office only for inability to
perform the functions of his office or for misbehaviour.
5. A Commissioner shall be removed only on the vote of the Judicial
and Legal Services Commission that represents not less than three-quarters of
all the Members of the Commission.
6. A Commissioner may at any time resign the office of Commissioner by
writing under his hand addressed to the Chairman of the Judicial and Legal
Services Commission.
7. A Commissioner shall not enter upon the duties of the office unless
he has taken and subscribed before the Chairman of the Judicial and Legal
Services Commission, the Oath of Office set out in Annex
V to this Protocol.
Article 30(e)
Functions of the Commission
1. The Commission shall:
(a) apply the rules of competition in respect of anti-competitive
cross-border business conduct;
(b) promote competition in the Community and co-ordinate the
implementation of the Community Competition Policy; and
(c) perform any other function conferred on it by any competent body
of the Community.
2. In discharging the functions set out in paragraph 1, the Commission
shall:
(a) monitor anti-competitive practices of enterprises operating in
the CSME, and investigate and arbitrate cross-border disputes;
(b) keep the Community Competition Policy under review and advise
and make recommendations to the COTED to enhance its effectiveness;
(c) promote the establishment of institutions and the development
and implementation of harmonised competition laws and practices by Member
States to achieve uniformity in the administration of applicable rules;
(d) review the progress made by Member States in the implementation
of the legal and institutional framework for enforcement;
(e) co-operate with competent authorities in Member States;
(f) provide support to Member States in promoting and protecting
consumer welfare;
(g) facilitate the exchange of relevant information and expertise;
and
(h) develop and disseminate information about competition policy,
and consumer protection policy.
3. The Commission may, by directions in writing and subject to such
conditions as it thinks fit, delegate any of its functions to one or more of its
members.
Article 30(f)
Powers of the Commission
1. Subject to Articles 30(g) and 30(h), the
Commission may, in respect of cross-border transactions or transactions with
cross-border effects, monitor, investigate, detect, make
determinations or take action to inhibit and penalise enterprises whose business
conduct prejudices trade or prevents, restricts or distorts competition
within the CSME.
2. The Commission may, in accordance with applicable national laws,
in the conduct of its investigations:
(a) secure the attendance of any person before it to give evidence;
(b) require the discovery or production of any document or part
thereof; and
(c) take such other action as may be necessary in furtherance of the
investigation.
3. The Commission may, on the basis of its investigations, make
determinations regarding the compatibility of business conduct with the rules of
competition and other related provisions of the Treaty.
4. The Commission shall, to the extent required to remedy or penalise
anti-competitive business conduct referred to in Article 30(i):
(a) order the termination or nullification as the case may require,
of agreements, conduct, activities or decisions prohibited by Article 30(i);
(b) direct the enterprise to cease and desist from anti-competitive
business conduct and to take such steps as are necessary to
overcome the effects of abuse of its dominant position in the market, or
any other business conduct inconsistent with the principles of fair
competition set out in this Protocol;
(c) order payment of compensation to persons affected; and
(d) impose fines for breaches of the rules of competition.
5. The Commission may enter into such arrangements for the provision
of services as may be necessary for the efficient performance of its functions.
6. Member States shall enact legislation to ensure that determinations
of the Commission are enforceable in their jurisdictions.
7. The Commission may establish its own rules of procedure.
Article 30(g)
Determination of Anti-Competitive Business Conduct:
Procedure of Commission on Request
1. A Member State may request an investigation referred to in
paragraph 1 of Article 30(f) where it has reason to believe that business
conduct by an enterprise located in another Member State prejudices trade and
prevents, restricts or distorts competition in the territory of the requesting
Member State.
2. Where the COTED has reason to believe that business conduct by an
enterprise in the CSME prejudices trade and prevents, restricts or distorts
competition within the CSME and has or is likely to have cross-border effects,
the COTED may request an investigation referred to in paragraph 1 of Article
30(f).
3. Requests under paragraphs 1 and 2 shall be in writing and shall
disclose sufficient information for the Commission to make a preliminary
assessment whether it should proceed with the investigation.
4. Upon receipt of a request mentioned in paragraph 3, the Commission
shall consult with the interested parties and shall determine on the basis of
such consultations whether:
(a) the investigation is within the jurisdiction of the Commission;
and
(b) the investigation is justified in all the circumstances of the
case.
5. The consultations shall be concluded within 30 days of the date of
receipt of the request for investigation, unless the parties agree to continue
the consultations for a longer period.
6. Where the Commission decides to conduct the investigation, the
Commission shall:
(a) notify the interested parties and the COTED;
(b) complete the investigation within 120 days from the date of
receipt of the request for the investigation; and
(c) where the circumstances so warrant, extend the time period for
completion of the investigation and notify the interested Parties.
7. Where the Commission decides to conduct an enquiry following an
investigation, the Commission shall afford any party complained of the
opportunity to defend its interest.
8. At the conclusion of an enquiry, the Commission shall notify the
interested parties of its determination.
9. Where the Commission determines that a party has engaged in
anti-competitive business conduct, it shall also require the party to take the
action necessary to remove the effects of the anti-competitive business conduct.
10. Where a specific course of action is required under paragraph 9,
the enterprise concerned shall take the appropriate course of action within 30
days of the date of notification. If the concerned enterprise cannot comply, it
shall notify the Commission and request an extension.
11. If the enterprise cannot comply within the time period specified
and fails to inform the Commission, the Commission may apply to the Court for an
order.
12. A party which is aggrieved by a determination of the Commission
under paragraph 4 of Article 30(f) in any matter may apply to the Court for a
review of that determination.
Article 30(h)
Determination of Anti-Competitive Business
Conduct;
Procedure of Commission Proprio Motu
1. Where the Commission has reason to
believe that business conduct by an enterprise in the CSME prejudices trade and
prevents, restricts, or distorts competition within the CSME and has
cross-border effects, the Commission shall request the competent national
authority to undertake a preliminary examination of the business conduct of the
enterprise.
2. Where a request is made under
paragraph 1, the national authority shall examine the matter and report its
findings to the Commission within such time as may be determined by the
Commission.
3. Where the Commission is not satisfied
with the outcome of its request, the Commission may initiate its own preliminary
examination into the business conduct of the enterprise referred to in paragraph
1.
4. Where the findings of the preliminary
examination under paragraphs 2 and 3 require investigation, the Commission and
the Member State concerned shall hold consultations to determine and agree on
who should have jurisdiction to investigate.
5. If there is a difference of opinion
between the Commission and the
Member State regarding the nature and effects of
the business conduct or the jurisdiction of the investigating authority, the
Commission shall:
(a) cease any further examination of
the matter; and
(b) refer the matter to the COTED for
its decision.
6. Nothing in this Article shall
prejudice the right of the Member State to initiate proceedings before
the Court at any time.
7. Where there is a finding that the
Commission has jurisdiction to investigate the matter, the
Commission shall follow the procedures set out in paragraphs 5, 6, 7 and 8 of
Article 30(g).
PART III
RULES OF COMPETITION
Article 30(i)
Prohibition of Anti-Competitive Business Conduct
1. A Member State shall, within
its jurisdiction, prohibit as being
anti-competitive business conduct, the following:
(a) agreements between enterprises,
decisions by associations of enterprises, and concerted practices by
enterprises which have as their object or effect the prevention, restriction
or distortion of competition within the Community;
(b) actions by which an enterprise
abuses its dominant position within the Community; or
(c) any other like conduct by
enterprises whose object or effect is to frustrate the benefits expected from
the establishment of the CSME.
2. Anti-competitive business
conduct within the meaning of paragraph 1 includes the following:
(a) the direct or indirect fixing of
purchase or selling prices,
(b) the limitation or control of
production, markets, investment or technical development;
(c) the artificial dividing up of
markets or restriction of supply sources;
(d) the application of unequal
conditions to parties undertaking equivalent engagements in commercial
transactions thereby placing them at a competitive disadvantage;
(e) making the conclusion of a contract
subject to the acceptance by the other party to the contract of additional
obligations which, by their nature or according to commercial practice, have
no connection with the subject matter of the contract;
(f)unauthorised denial of access to
networks or essential infrastructure;
(g) predatory pricing;
(h) price discrimination;
(i) loyalty discounts or concessions;
(j) exclusionary vertical restrictions;
and
(k) bid-rigging.
3. Subject to Article 30, a Member State
shall ensure that all agreements and decisions within the meaning of paragraph 1
of this Article shall be null and void within its jurisdiction.
4. An enterprise shall not be treated as
engaging in anti-competitive business conduct if it establishes that the
activity complained of:
(a) contributes to:
(i) the improvement of production or
distribution of goods and services; or
(ii) the promotion of technical or
economic progress while allowing consumers a fair share of the
resulting benefit;
(b) imposes on the enterprises affected
only such restrictions as are indispensable to the attainment of the
objectives mentioned in sub-paragraph (a); or
(c) does not afford the enterprise
engaged in the activity the possibility of eliminating competition in respect
of a substantial part of the market for goods or services concerned.
Continue on to Article 30 (j)
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