Frequently Asked Questions
Community Competition Policy
- What are the categories of anti-competitive business conduct?
The categories of anticompetitive business conduct as per Article 177 of the Revised Treaty of Chaguaramas are as follows:
- 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;
- actions by which an enterprise abuses its dominant position within the Community; or
- any other like conduct by enterprises whose object or effect is to frustrate the benefits expected from the establishment of the CSME.
- What is the jurisdiction of the Commission?
The Commission is vested with certain powers under Article 174 of the Revised Treaty of Chaguaramas. These powers allow the Commission to monitor, investigate, detect, make determinations and impose penalties regarding cross-border transactions of an anti-competitive nature, and in respect of transactions with anti-competitive cross-border effects within the CARICOM Single Market and Economy (CSME).
- What is the relationship between the Community Competition law and Member States’ national competition law?
The Community Competition law must be expressed in the national competition laws of each CARICOM Member State. The competition legislation in Member States must also:
- require national competition authorities to cooperate with the Commission in achieving compliance with the rules of competition; and
- give power to the Commission to conduct investigations in their jurisdiction if an offence of a cross-border nature is believed to have taken place.
Enactment of competition legislation by Member States has been facilitated by the development of the CARICOM Model Competition Bill, which was approved by the CARICOM Legal Affairs Committee (LAC) in October 2003.
- When was the Commission established?
The Commission was established by Article 171 of the Revised Treaty of Chaguaramas. It was inaugurated on January 18, 2008.
- Which Member states have enacted national Competition laws?
Barbados, Guyana and Jamaica have all enacted competition laws and have functioning competition authorities capable of enforcing the national competition law.
In Trinidad, the Fair Trading Commission was established under the Fair Trading Act 2006, but the Commission is not functioning to date. Also some aspects of the competition law are still yet to be proclaimed.
The OECS with the agreement of the COTED will create a Sub-Regional Eastern Caribbean Competition Commission (ECCC) that will act as the national competition authority for each OECS Member States.
Suriname has completed a draft Competition bill and is currently undertaking stakeholder consultation on the bill.
Belize is in the process of creating an administrative framework to guide the process of implementation of its national commitments under the RTC.
The absence of competition law and an enforcement body in a Member States does not prevent the Commission from investigating potential cross-border anti-competitive business conduct within a Member State or that affects a Member State that does not have a national competition law or competition authority.
- Who can file a complaint with the Commission?
Pursuant to Article 175 of the Revised Treaty of Chaguaramas
A Member State or COTED can request that an investigation be conducted where they have 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.
- What Information should be included in a complaint?
Information to be supplied in a complaint should include (if available)
1. Information regarding the Member State(s)/COTED bringing the complaint and the enterprise(s) or association of enterprises that are the source of the complaint
2. Details of the alleged breach of Community Competition Law and supporting information or evidence (if available)
3. Finding(s) being sought from the Commission and the legitimate interest of the Member State(s)/COTED bringing the complaint
4. Information on whether a complaint/proceedings has been brought before a national competition authority or national court(s) in a Member State(s)
- What happens after a written complaint is filed?
After a complaint is filed with the Commission, the following steps are taken:
- An assessment is done to determine if (a) the investigation is within the jurisdiction of the Commission and (b) if the investigation is justified in all circumstances of the case. If answer is yes to both questions then investigation proceeds.
- An Investigating Panel is nominated and commences the process of gathering and analysing any evidence collected that may, or may not suggest that an enterprise is engaging in anti-competitive business conduct.
- If upon analysis of the evidence collected, the Investigating Panel believes that the conduct of an enterprise is anti-competitive, then the matter is referred to an Adjudicating Panel for a determination on the matter. If evidence suggests that an offence has not been committed then the investigation is closed.
- An adjudicating Panel is established to hear the merits of the complaint where Investigating panel finds sufficient evidence that suggests a breach of competition law has occurred.
- Investigating Panel makes a determination of breach or no breach of competition law.
- What is an Investigating Panel?
An Investigating Panel is a sub-set of seven Commissioners designated by the Chairman pursuant to Rule 4(2) of the CARICOM Competition Rules of Procedure 2011, to conduct an investigation. Members of the investigating Panel cannot form part an Adjudicating Panel.
- What is an Adjudicating Panel?
An Adjudicating Panel is a sub-set of the seven Commissioners designated by the Chairman pursuant to Rule 10 (2) of the CARICOM Competition Rules of Procedure, to conduct an enquiry, with a view to making a determination pursuant to Article 174 (3) of the Treaty and, if appropriate, to make an order, direction or imposition pursuant to Article 174 (4) of the Treaty. Members of an Adjudicating panel cannot form part of an Investigating Panel.
- Can decisions by the Commission be appealed and where?
Decisions by the Commission according to Article 175 (12) of the Revised Treaty can be appealed before the Caribbean Court of Justice (CCJ). The CCJ has been designated under the Revised Treaty of Chaguaramas as the final Court for matters of Original Jurisdiction concerning interpretation and application of the Revised Treaty of Chaguaramas.
Community Consumers Policy
- What is consumer protection law and policy?
Consumer protection law and policy includes legislation and actions designed to protect the rights of consumers, as well as encourage fair and effective competition in the CSME.
- What is the role of the Commission in consumer protection in CARICOM?
Under Article 186 of the Revised Treaty of Chaguaramas, the role of the Commission is to provide support to the Member States in the enhancement of consumer education and consumer welfare. The Commission’s mandate is to provide advocacy and support to the Member States developing their national regulations and institutions to enforce consumer protection.
- Does the Commission have enforcement powers under consumer protection law in CARICOM?
The Revised Treaty of Chaguaramas does not give the Commission the authority to directly enforce consumer protection laws. This function is the responsibility of the national consumer authority in each Member State. However, the Commission will cause consumers to benefit from the maintenance of competitive markets through its regulatory actions and market interventions at the regional level.
- What elements of consumer protection are listed in the Revised Treaty of Chaguaramas?
The Revised Treaty of Chaguaramas lists several elements that each Member State must incorporate in their respective consumer protection Acts. As such the consumer protection Acts must provide for but are not limited to:
- prohibition of unconscionable terms in contracts;
- prohibition of unfair trading practices,
- prohibiting production and supply of harmful and defective goods;
- compliance with the applicable regulations, standards, codes and licensing requirements;
- labelling in accordance with standard and specifications prescribed by the competent authorities;
For a more detailed look at the elements of Community Consumer Protection Policy, please refer to Chapter VIII of the Revised Treaty of Chaguaramas, starting at Article 184.
- Do all Member States have consumer protection law?
All of the Member States do not have comprehensive consumer protection Acts. However, most Member States have dealt with some of the elements outlined in Article 185 of the Revised Treaty of Chaguaramas through separate pieces of national legislation.
A draft harmonised regional Consumer Protection Bill has been prepared for the approval of Member States that will provide for the establishment of a minimum level of regulatory and institutional capacity at the level of the Member State to protect consumers.
Competition and Trade Policy
- What are the main differences between Competition Policy and Trade Policy?
There are three (3) main differences between competition policy and trade policy viz. economic perspectives, scope and legal principles.
• Competition policy is concerned with the conduct of private business enterprises. More specifically, it focuses on conduct that is anti-competitive such as collusive or exclusionary agreements, mergers and the abuse of dominant position. Trade policy, however, focuses on the behaviour of countries, in particular governments, and aims to reduce discriminatory acts against foreign firms trying to access domestic markets.
• Additionally, competition policy is nationally determined, is not usually based on international agreements, and rarely has extra-territorial application, whilst trade policy is normally regionally or internationally determined and has extra-territorial application.
• The main objective of competition policy is to protect the competitive process rather than to protect individual domestic producers and industries. In that regard, no distinction is made between domestic and foreign producers in seeking to ensure a healthy competitive process. Competition policy seeks to maximise and promote consumer welfare through open market competition, with the expected benefits of increased choice and quality, and reduction in prices.
• Conversely, trade policy is concerned with protecting domestic producers, industries and workers from competition by foreign competitors seeking to enter national markets. Governments sometimes impose limitations and restrictions such as tariff and non-tariff market barriers to protect domestic producers at the expense of foreign competitors. In that regard, trade laws are not concerned with ensuring an open competitive process or with increasing consumer welfare. Therefore, trade laws do not consider whether imports strengthen or improve the competitive process.
Legal principles-Enforcement and remedies
• There is a strong legal basis for enforcement under competition policy i.e. enforcement under competition policy is fully adjudicative.
• On the other hand the legal basis for enforcement under trade policy is not as strong. This may stem from the fact that trade policy is dealt with more through political and diplomatic channels that are not subject to due process proceedings.
• Trade laws often involve negotiated solutions, and involve representatives of governments engaged in continuing bilateral and multilateral relationships, who need to interact with one another even after a current dispute is resolved.
• Trade remedies generally involve increased or special duties, or quotas on imports, whilst relief from anti-competitive business conduct can include single or treble damages in the USA; and injunctions; divestiture; restructuring, and penalties in CARICOM.
- Are Competition Policy and Trade Policy compatible?
Notwithstanding the differences mentioned above, it is important to realise that competition policy and trade policy are compatible, since both policies aim to improve efficient allocation of scarce resources.
• Trade policy aims to allocate resources efficiently by removing barriers that hinder the ability of national firms to access new foreign markets. Efforts to restrain and eliminate state sponsored trade barriers have taken place under the auspices of the multilateral trading system - the World Trade Organisation (WTO) and its predecessor the General Agreement on Tariffs and Trade (GATT). These trade arrangements have formed the cornerstone of international endeavours backed by binding treaties that seek to use transparency and non-discrimination to achieve its objectives.
• Competition policy aims to allocate resources efficiently by preventing firms from harming the competitive process in the market place. With globalisation, anti-competitive business conduct can significantly affect trade and investment flows between countries. Consequently, trade regulation is ineffective without the facilitative discipline of competition policy.
• For this reason, trade agreements between countries sometimes contain competition policy provisions that seek to address anti-competitive business conduct by firms e.g. the Economic Partnership Agreement (EPA) between the CARIFORUM and the EU. In addition, sometimes separate agreements are reached regarding cooperation in the application and enforcement of national competition law against firms from countries with trade agreements.