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General Conclusions on the Efficacy of a Regional Competition Law System

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Regional Competition Law Enforcement in Developing Countries

Part of the book series: Munich Studies on Innovation and Competition ((MSIC,volume 9))

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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.

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Notes

  1. 1.

    See below Part III, Chap. 12.

  2. 2.

    One of the main differences between regional and national competition policy objectives is the relevant market. While national competition law protects national markets, regional competition law primarily aims at the protection of the regional market.

  3. 3.

    However, the regional competition law system still has to be reconciled with the general domestic legal framework and possibly with other existing national competition-related provisions, such as sector regulation, price control or unfair competition.

  4. 4.

    Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 287.

  5. 5.

    In fact, the WAEMU system is actually not a system of a single regional authority, because national competition authorities are supposed to assist the WAEMU Commission. Yet, as the WAEMU Commission monopolizes all decision-making powers and national agencies have been reluctant to cooperate, one can still draw certain conclusions at this point.

  6. 6.

    See above WAEMU’s experiences, Part II, Dimension IV: Sect. 8.1. In addition, the large territorial scope of application increases the workload of the regional competition authority and thereby increases the amount of resources the authority needs in order to enforce competition law.

  7. 7.

    See above OECS, Part II, Dimension I: Sect. 5.2.3.3.

  8. 8.

    See also the relevance of harmonization below, Part III, Sect. 11.4.1.

  9. 9.

    See the example of the WAEMU, Part II, Dimension II: Sect. 6.1.

  10. 10.

    Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281, 290 (2011).

  11. 11.

    On the experiences of Germany with “soft” harmonization, see Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281, 293 (2011).

  12. 12.

    See competition law objectives in the CARICOM, Part II, Dimension I: Sect. 5.3.1.3.

  13. 13.

    See Art. 3(2) Council Regulation (EC) 1/2003.

  14. 14.

    For more details see below, Part III, Sect. 11.7.

  15. 15.

    In the European Union, decentralized enforcement of the broadly interpreted scope of application of EU competition law was only possible because member states had developed a proper competition culture.

  16. 16.

    While there are different forms and stages of integration, economic integration can generally be understood as the abolition of all barriers to trade, such as tariff barriers, in order to increase trade between nations. Thus, according to this definition, the most advanced stage of economic integration leads to the creation of a common market. A common market usually also imposes a common external tariff on imports from non-member states, thereby aiming at creating an economic advantage for the participating states.

  17. 17.

    Monti, EC Competition Law, 2007, p. 39.

  18. 18.

    There are also exceptions to this general assumption: the economic activities of beer brewers indicate that trade between the African States (at least between Kenya and Tanzania) is actually high. See on this case, Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281, 288 (2011).

  19. 19.

    Gerber, Global Competition, 2010, p. 258.

  20. 20.

    Gerber, Global Competition, 2010, p. 258.

  21. 21.

    For statistics regarding the Andean community, see Trotignon, L’impact des accords de libre-commerce entre pays latino-américains, LXI Economie Appliquée 95–120 (2008); regarding the intra community trade in the CARICOM, see Egoumé-Bossogo/Mendis, Trade and Integration in the Caribbean, 2002 <http://www.imf.org/external/pubs/ft/wp/2002/wp02148.pdf> accessed 11 November 2018. On the importance of Ivory Coast regarding intra community trade in WAEMU, see Egoume/Nayo, Feeling the Elephant’s Weight: The Impact of Côte d’Ivoire’s Crisis on WAEMU Trade, 2011 <http://www.imf.org/external/pubs/ft/wp/2011/wp1180.pdf> accessed 11 November 2018.

  22. 22.

    Egoume/Nayo, Feeling the Elephant’s Weight: The Impact of Côte d’Ivoire’s Crisis on WAEMU Trade, 2011, p. 7.

  23. 23.

    Goretti/Weisfeld, Trade in the WAEMU: Developments and Reform Opportunities, 2008, p. 5 <http://www.imf.org/external/pubs/ft/wp/2008/wp0868.pdf> accessed 11 November 2018; Van den Boogaerde/Tsangarides, Ten Years After the CFA Franc Devaluation: Progress Toward Regional Integration in the WAEMU, 2005, p. 17.

  24. 24.

    Agbodji, Intégration et Échanges commerciaux Intra Sous-régionaux: le Cas de l’UEMOA, 1/1 Rev. Afr. de l’Intégration 161, 162f. (2007).

  25. 25.

    On intra-community trade and general export numbers increased except in 2008 and 2009 during the international financial crisis, see Secretaría General de la Comunidad Andina, Comunidad Andina: Principales Indicadores 41 años de Integración y Desarrollo, 2011 <http://estadisticas.comunidadandina.org/eportal/contenidos/1638_8.pdf>.

  26. 26.

    Press release from the Secretariat General of the 26 May 2010 <http://www.comunidadandina.org/ingles/press/press/np26-5-10.htm>; see also publication of the Secretariat General on Trade Integration through the Trade Area in the Andean Community <http://www.comunidadandina.org/ingles/comercio/fta.htm>.

  27. 27.

    Caribbean Trade and Investment Report 2005 <www.caricom.org>.

  28. 28.

    Stewart, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 161, 173f.

  29. 29.

    CARICOM Secretariat, Caribbean Community Regional Aid for Trade Strategy 2013–2015, 2013, p. 9 <http://cms2.caricom.org/documents/5269-caribbean_community_aft_strategy_final.pdf> accessed 13 September 2017.

  30. 30.

    Ibid., p. 10.

  31. 31.

    Prada, Wettbewerbspolitik und Wirtschaftsintegration in den Amerikas, 2001, p. 34. Prada even states that regional provisions regarding regional competition are unnecessary if the regional trade volume is low as regards the trade volume of the member states.

  32. 32.

    Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, 231, 238f.

  33. 33.

    Integration of developing countries in the global economy is extremely poor. According to the UNCTAD, Africa is the least integrated regional in the world economy, at 2 per cent; UNCTAD, Voluntary Peer Review on Competition Policies of WAEMU, Benin and Senegal, 2008, p. 2.

  34. 34.

    See for example the deficiencies in the transport and transit system in Benin: Goretti/Weisfeld, Trade in the WAEMU: Developments and Reform Opportunities, 2008, p. 8 <http://www.imf.org/external/pubs/ft/wp/2008/wp0868.pdf> accessed 11 November 2018. In an RTA consisting of islands, such as the CARICOM, the problem of poor infrastructure is even more severe, because inter-state trade solely relies on ships and aircrafts. These sectors have been prone to high levels of concentration; regarding ports and cargo shipping, see Brusick/Evenett, Should Developing Countries Worry about Abuse of Dominant Power?, 2 Wis. L. Rev. 269, 275f. (2008).

  35. 35.

    The legal competition precedents in the WAEMU, the AndeanC and the CARICOM support this finding: undertakings targeted by regional competition law tend to be of larger size. Even in the WAEMU, which does not rely on the requirement of cross-border trade, the examined undertakings were large.

  36. 36.

    In this context, the first competition case of the CARICOM Competition Commission against Trinidad Cement Limited demonstrates a positive start, though the case’s success is not primarily attributed to the greater political weight and enhanced information gathering by a regional competition authority. Rather, it is a demonstration of the determination of the regional competition authority to also attack large businesses with deep pockets. Yet it is a demonstration of the efficiency of horizontal cooperation on the regional level between different regional integration organizations, which in particular facilitates the surveillance of the common market; Trinidad Cement Limited v The Competition Commission, Caribbean Court of Justice Application No. OA 1 of 2012, CCJ 4 (OJ). In fact, the competition-related issues of the case against Trinidad Cement Limited first came up in a judgement of the Caribbean Court of Justice, and COTED requested the CARICOM Competition Commission to investigate; Trinidad Cement Limited and TCL Guyana Incorporated v The State of the Co-operative Republic of Guyana, Caribbean Court of Justice Application No. OA 2 of 2009, CCJ 5 (OJ), [17].

  37. 37.

    Mateus, Competition and Development: What Competition Law Regime?, 2010, p. 285 <http://ssrn.com/abstract=1699643> accessed 11 November 2018.

  38. 38.

    Ibid.

  39. 39.

    Van den Boogaerde/Tsangarides, Ten Years After the CFA Franc Devaluation: Progress Toward Regional Integration in the WAEMU, 2005, p. 17.

  40. 40.

    Even Trinidad Cement Limited, against which the CARICOM Competition Commission conducted its first investigation, was only privatized in 1990, and before that it was completely owned by the Government of Trinidad and Tobago; see Trinidad Cement Limited homepage, see <http://www.tcl.co.tt/about-tcl>.

  41. 41.

    Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 313.

  42. 42.

    On the capacity of a regional competition law system to deal with state-related anticompetitive practices, see below, Part III, Sect. 11.3.

  43. 43.

    See also below Part III, Sect. 11.8.

  44. 44.

    See below Part III, Dimension IV: Sect. 12.4.6.

  45. 45.

    Convergence of prohibitions against private and public restraints to competition were necessary in the European Union’s initial market-integrationist approach in order to create a single common market; Fox/Healey, When the State harms Competition – The Role for Competition Law, 2013, p. 12 <http://ssrn.com/abstract=2248059> accessed 11 November 2018.

  46. 46.

    See above Part II, Dimension I: Sect. 5.1.3.

  47. 47.

    See above Part II, Dimension I: Sect. 5.1.3 and Part II, Dimension I: Sect. 5.3.

  48. 48.

    See above Part II, Dimension I: Sect. 5.3.

  49. 49.

    With regard to the factors that impact the intensity of inter-state trade and those that impact the national support of a common market, see above Part III, Sect. 11.2.1. Possibly, divergences between economic powers of member states require the introduction of compensatory or transitory special and differential treatment provisions, for example the suspension of the Common External Tariff.

  50. 50.

    This statement is based on the precondition that regional competition law applies to cross-border practices. This is the case in the WAEMU, the AndeanC and the CARICOM.

  51. 51.

    Bolivia is an exception. Although a national Supreme Decree with regard to competition law exists, there are still ambiguities concerning the competent authority. See above Part II, Dimension I: Sect. 5.2.2.2.

  52. 52.

    Currently there is no obligation under the regional law for member states to establish a national competition authority. In the same vein, the institutional design is left to national autonomy. This might undergo a change with the current reform of the WAEMU competition law system.

  53. 53.

    See on the concept of “open regionalism” in the AndeanC, Part II, Dimension I: Sect. 5.3.2.2 and on advisory opinions by the regional court, Part II, Dimension IV: Sect. 8.3.2.3.

  54. 54.

    Part II, Dimension I: Sect. 5.3.2.2.

  55. 55.

    See for example the US–Peru preferential trade agreement; see Horna/Kayali, in: Alvarez/Wilse-Samson, Implementing Competition-Related Provisions in Regional Trade Agreements, 2007, pp. 21, 51ff.

  56. 56.

    See for example the CARIFORUM-EC Economic Partnership Agreement, Part II, Dimension I: Section “The CARIFORUM-EC Economic Partnership Agreement”.

  57. 57.

    On the interplay between bilateral trade agreements, international trade and competition law, see Bakhoum, Commerce International, Politique de Concurrence et Accords de Partenariat Economique, 1/2 Rev. Afr. de l’Intégration 3–7 (2010).

  58. 58.

    Part II, Dimension I: Sect. 5.3.2.2.

  59. 59.

    In the CARICOM, the common market (CSME) constitutes the centre of gravity of the RTA. CARIFORUM-EC Economic Partnership Agreement negotiations took place en bloc. See Part II, Dimension I: Section “The CARIFORUM-EC Economic Partnership Agreement”.

  60. 60.

    Evenett/Levenstein/Suslow, International Cartel Enforcement, 2001, pp. 1, 21; Evenett, in: Hoeckman/Mattoo/English, Development, Trade and the WTO: A Handbook, 2002, pp. 456, 462. For more information on the increased deterrent effect of cumulative sanctions, see below Part III, Sect. 11.6.4.

  61. 61.

    Gal/Faibish Wassmer, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 291, 295; Stewart, An Empirical Examination of Competition Issues in Selected Caricom Countries, pp. 126ff.

  62. 62.

    Gal/Faibish Wassmer, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 291, 295.

  63. 63.

    Without describing the specific enforcement mechanism, but also supporting the potential benefit of creating a credible threat, see Gal/Faibish Wassmer, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 291, 295.

  64. 64.

    Even in developed countries or within a developed common market, the actual weight of the “exit option” is doubtful. The higher sunk or investment costs for entering a market (even a small one) are, the lower are the incentives to exit in case of competition-law-related sanctions.

  65. 65.

    See above Part II, Dimension I: Sect. 5.3.2.

  66. 66.

    Gal, The Unique Enforcement Challenges Faced by Small Economies, 33 Fordham Int’l. L.J. 1, 23 (2009). Gal presumes that a country’s size or level of development is positively correlated with its political power.

  67. 67.

    The European Union also engaged in en bloc negotiations with the AndeanC. It was only when these negotiations failed that the EU agreed to continue to negotiate bilaterally with the member states of the AndeanC; see above Part II, Dimension I: Sect. 5.3.2.2.

  68. 68.

    Article 128 of the CARIFORUM-EC Economic Partnership Agreement.

  69. 69.

    The Agreement also refers to the authority of the Dominican Republic (Comisión Nacional de Defensa de la Competencia), see Article 125(1) of the CARIFORUM-EC Economic Partnership Agreement.

  70. 70.

    Gal, The Unique Enforcement Challenges Faced by Small Economies, 33 Fordham Int’l. L.J. 1, 35 (2009).

  71. 71.

    Gerber, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 253, 269.

  72. 72.

    Affaire Syndicat des Agences de Voyage et de Tourisme du Sénégal contra Air France, Décision n° 02-D-02 of 27 December 2002; for a summary see Weick, Competition Law and Policy in Senegal, 33/3 W. Comp. 521, 531 (2010), see Part II, Dimension I: Sect. 5.2.1.1.

  73. 73.

    Kovacic, Institutional Foundations for Economic Legal Reform in Transition Economies, 77 Chi.-Kent L. Rev. 265, 285 (2001).

  74. 74.

    This is not only a concern with regard to international anticompetitive behaviour. Rather, generally the emergence of a competition culture among private businesses and member states in an RTA depends on the reputation and efficacy of the regional competition authority.

  75. 75.

    In this regard, the AndeanC serves as an example. The former Decision 285 did not vest the regional authority with sanctioning power. As a consequence, competition culture at the national level and cooperation was lacking; see Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 314.

  76. 76.

    It has already been noted that both public and private restraints should be addressed. See above Part III, Sect. 11.2.2.

  77. 77.

    See on regional merger regulation, Part II, Dimension I: Sect. 5.1.4.

  78. 78.

    This was the case in the AndeanC, Part II, Dimension I: Sect. 5.1.4.

  79. 79.

    Evenett, Analytical Considerations in the Design of Regional Rules on Competition Law, 2005, p. 9.

  80. 80.

    Jenny, Cartels and Collusion in Developing Countries, 29/1 W. Comp. 109, 134 (2006).

  81. 81.

    When discussing the notion of harmonization, one has to carefully distinguish between the incentives for competition law implementation and enforcement arising out of harmonization and, on the other hand, incentives that further harmonization itself. Only after affirming that harmonized competition law promotes competition law implementation and enforcement should one analyse whether a regional competition law framework can create incentives for competition law harmonization.

  82. 82.

    The European competition law system never entailed an obligation for the Member States to adopt a national competition law. However, through the process of “soft harmonization” most of the Member States have to a large extent harmonized their national competition laws with the European provisions. For more details on “soft harmonization” see Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281–304 (2011). For more details on the development of the national competition laws in the framework of the development of the European competition law, see Monti, EC Competition Law, 2007, pp. 401ff.

  83. 83.

    For example in a common market.

  84. 84.

    Other forms of harmonization are formal and substantive harmonization. While the former refers to the supremacy and the direct applicability and effect of regional law, the latter describes spill-over effects of regional legal rules from one economic area to another. The forms of harmonization are subsumed under the term of legal integration; Möschel, Wettbewerb der Wettbewerbsordnungen, WuW 599, 600ff. (2005); Bätge, Wettbewerb der Wettbewerbsordnungen?, 2009, pp. 53, 241.

  85. 85.

    Bätge, Wettbewerb der Wettbewerbsordnungen?, 2009, pp. 48ff.; Müller, Systemwettbewerb, Harmonisierung und Wettbewerbsverzerrung, 2000, pp. 121ff.; Möschel, Wettbewerb der Wettbewerbsordnungen, WuW 599, 601ff. (2005).

  86. 86.

    See above on mandatory lead jurisdictions and quantitative thresholds, Part II, Dimension V: Sects. 9.6 and 9.7.

  87. 87.

    On the actual conflicts that have arisen in WAEMU, AndeanC and CARICOM see below Part III, Sect. 11.4.3.1.

  88. 88.

    Möschel, Wettbewerb der Wettbewerbsordnungen, WuW 599, 603 (2005).

  89. 89.

    Bätge, Wettbewerb der Wettbewerbsordnungen?, 2009, p. 48.

  90. 90.

    Bätge, Wettbewerb der Wettbewerbsordnungen?, 2009, p. 50. In contrast, Möschel argues that the intention to set common standards creates the risk of watering down the content of competition law, because it is difficult to find a common denominator, see Möschel, Wettbewerb der Wettbewerbsordnungen, WuW 599, 604 (2005).

  91. 91.

    Sokol argues that “(c)ompetition policy chapters may be a signal of a credible commitment to potential foreign investors that a country is market-oriented and pro-investment”, see Sokol, Why Countries Enter into Non-Enforceable Competition Policy Chapters in Free Trade Agreements, 83 Chi.-Kent L.Rev. 101, 142 (2008). Fox argues in a similar vein that “there is no perceptible race to the bottom (…) and the argument – We pay the costs of antitrust; therefore you should too – is based on the false premise that antitrust in essence imposes costs on business”. See Fox, Why Must the Central European Nations Adopt the Competition Law of the European Union?, 23 Brook. J. Int’l. Law 351, 358 (1997).

  92. 92.

    Regarding the discussion surrounding the harmonization of Central Eastern European Community law and EC law, see Fox, Why Must the Central European Nations Adopt the Competition Law of the European Union?, 23 Brook. J. Int’l. Law 351, 357 (1997).

  93. 93.

    With regard to the introduction of the principle of competition in Europe, see Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 443 (1993).

  94. 94.

    According to Dreher, the implementation of a regional competition law directive is not suitable in a situation, in which a competition culture is emerging nationally, because such a directive could impede the ongoing process of parallel development of national competition laws; see Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 445 (1993).

  95. 95.

    Fox, Why Must the Central European Nations Adopt the Competition Law of the European Union?, 23 Brook. J. Int’l. Law 351, 357 (1997).

  96. 96.

    Alvarez/Horna, Implementing competition law and policy in Latin America: The role of Technical Assistance, 83 Chi.-Kent L. Rev. 91, 98 (2008).

  97. 97.

    Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 439 (1993).

  98. 98.

    The common economic policy of an RTA between developing countries usually also entails the objective to attract foreign direct investment.

  99. 99.

    Baetge, Globalisierung des Wettbewerbsrechts, 2009, p. 51.

  100. 100.

    Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 445ff. (1993).

  101. 101.

    Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 448 (1993).

  102. 102.

    Chapter VIII mirrors in many parts the Jamaican competition law, Part II, Dimension I: Sect. 5.2.3.1.

  103. 103.

    See in this context the pattern of preliminary reference rulings in the AndeanC, which overwhelmingly concerned intellectual property, notwithstanding the fact that Andean law spans a wide array of regional trade and investment issues. See Helfer/Alter, The Andean Tribunal of Justice and its Interlocutors, 41 N.Y.U. Journal of Int’l. L. & Pol. 871, 887 (2009), <http://ssrn.com/abstract=1334733> accessed 11 November 2018.

  104. 104.

    Interview with representatives of the Superintendence of Industry and Trade in Colombia conducted by the author in Bogota, Colombia, on 1 February 2012.

  105. 105.

    See also below on the importance of harmonization in attracting foreign direct investment and the intensification of intra-community trade, Part III, Sect. 11.4.2.

  106. 106.

    Ziller, The Challenges of Governance in Regional Integration, 2005, p. 9; Gal, Competition Policy for Small Market Economies, 2003, p. 260.

  107. 107.

    “FDI involves a non-negligible set-up cost which generates increasing returns to scale and makes larger markets a more profitable investment opportunity than smaller markets”. Jaumotte, Foreign Direct Investment and Regional Trade Agreements: The market size effect revisited, 2004, p. 3 <http://www.imf.org/external/pubs/cat/longres.aspx?sk=17770.0> accessed 11 November 2018.

  108. 108.

    Gal, The Unique Enforcement Challenges Faced by Small Economies, 33 Fordham Int’l. L.J. 1, 34 (2009).

  109. 109.

    Generally the overarching achievement of macroeconomic stability in an RTA, including a high level of infrastructure, education and financial stability, is a determining factor for the attraction of FDI; see Jaumotte, Foreign Direct Investment and Regional Trade Agreements: The market size effect revisited, 2004, p. 5 <http://www.imf.org/external/pubs/cat/longres.aspx?sk=17770.0> accessed 11 November 2018.

  110. 110.

    Jaumotte, Foreign Direct Investment and Regional Trade Agreements: The market size effect revisited, 2004, p. 5.

  111. 111.

    Jaumotte, Foreign Direct Investment and Regional Trade Agreements: The market size effect revisited, 2004, pp. 4, 15.

  112. 112.

    See above Part II, Dimension I: Sect. 5.1.4. Regional merger regulation, there is empirical evidence that firms penetrate a market via mergers. See also Budzinski, Toward an International Governance of Transborder Mergers?, 41 N.Y.U. Journal of Int’l. L. & Pol. 1–52 (2004).

  113. 113.

    Bolivia and Ecuador have different underlying market concepts than Colombia and Peru. This leaves room for possible state intervention; see above Part II, Dimension I: Sect. 5.3.3.2.

  114. 114.

    In the CARICOM, the member states, respectively the COTED, hold more competences, as they are expected to conduct preliminary investigations on behalf of the CARICOM Competition Commission. The principle of mutual respect is of prevalent importance in the CARICOM. However, with regard to conflicts of final decisions on the breach of regional competition law, the CARICOM Competition Commission remains the body with decision-making power.

  115. 115.

    The Secretariat General could initiate a complaint for non-compliance before the Andean Tribunal according to Art. 25 of the Treaty Creating the Court of Justice of the Cartagena Agreement. See above Part II, Dimension IV: Sect. 8.3.2.5.

  116. 116.

    Fox, Why Must the Central European Nations Adopt the Competition Law of the European Union?, 23 Brook. J. Int’l. Law 351, 358 (1997).

  117. 117.

    Cengiz, The European Competition Network, 2009, p. 14 <http://cadmus.eui.eu/bitstream/handle/1814/11067/MWP_2009_05.pdf?sequence=1>.

  118. 118.

    Ibid.

  119. 119.

    As the discussion regarding the harmonization of national competition law procedures and diverging national competition authorities has been advanced extensively on the European level, I will try to limit myself to those considerations that are particularly relevant for RTAs in developing countries. With regard to the European discussion, see Cengiz, The European Competition Network, 2009 <http://cadmus.eui.eu/bitstream/handle/1814/11067/MWP_2009_05.pdf?sequence=1>; Cengiz, Regulation 1/2003 Revisited, 2009 <http://ssrn.com/abstract=1512527>; Cseres, Questions of Legitimacy in the Europeanization of Competition Law Procedures of the EU Member States, 7 February 2013 <http://ssrn.com/abstract=2213192>; Gauer, in: Ehlermann/Atanasiu, Eur. Comp. L. Ann. 2002, 2004, pp. 187ff.; Thyri, in: Hummer, Neueste Entwicklungen im Zusammenspiel von Europarecht und nationalem Recht der Mitgliedstaaten, 2010, pp. 379ff.

  120. 120.

    According to Cengiz, in terms of resources and independence national competition authorities of the Eastern European States were a matter of concern; Cengiz, The European Competition Network, 2009, p. 14 <http://cadmus.eui.eu/bitstream/handle/1814/11067/MWP_2009_05.pdf?sequence=1>; See also Cseres, Multi-Jurisdictional Competition Law Enforcement, 3 Eur. Comp. J. 465, 473 (2007).

  121. 121.

    Gauer, in: Ehlermann/Atanasiu, Eur. Comp. L. Ann. 2002, 2004, pp. 187, 192.

  122. 122.

    Ibid.

  123. 123.

    It will in particular depend on the powers and functions of a regional court of justice.

  124. 124.

    With regard to the attainment of political stability in member states within a RTA, one must note that a regional framework only has a limited impact. The AndeanC and the WAEMU in a couple of instances struggled with political turmoil in their member states, for example in Peru, Mali and Ivory Coast. In 1992, Peru even suspended its membership to the AndeanC. See Part I, Chap. 1.

  125. 125.

    See above on the national competition law structures, Part II, Dimension I: Sect. 5.2.

  126. 126.

    With regard to the situation in the EU, see Cseres, Questions of Legitimacy in the Europeanization of Competition Law Procedures of the EU Member States, 7 February 2013, pp. 17f. <http://ssrn.com/abstract=2213192>.

  127. 127.

    Thyri, in: Hummer, Neueste Entwicklungen im Zusammenspiel von Europarecht und nationalem Recht der Mitgliedstaaten, 2010, pp. 379, 398.

  128. 128.

    Schroeder, Nationale Maßnahmen zur Durchführung von EG-Recht und das Gebot der einheitlichen Wirkung, AöR 3, 13f. (2004).

  129. 129.

    Rebutting this view, see Kakouris, Do the Member States possess Judicial Procedural “Autonomy”?, 34 CML.Rev. 1389, 1389ff. (1997).

  130. 130.

    On the principles of effectiveness and equivalence, see Part II, Dimension V: Sect. 9.3.

  131. 131.

    Even the European Competition Network has been held to work efficiently on the basis of “mutual trust and solidarity”, Cengiz, The European Competition Network, 2009, p. 19 <http://cadmus.eui.eu/bitstream/handle/1814/11067/MWP_2009_05.pdf?sequence=1>.

  132. 132.

    However, the withdrawal of the United Kingdom from the EU (expected in 2019) demonstrates that even economic interdependencies cannot compensate for lacking political will or a population’s support to maintain and further regional integration.

  133. 133.

    See below on cooperation mechanisms with national competition law structures, see Part III, Dimension IV: Sect. 12.4.5.

  134. 134.

    Gauer, in: Ehlermann/Atanasiu, Eur. Comp. L. Ann. 2002, 2004, pp. 187, 197. Decision 608 provides a positive example as it requires minimum investigative powers on the national level.

  135. 135.

    See for example the internal conflict in Peru from 1980 to 2000, in which the country was shaken by terrorist attacks from the “Shining Path” and counter actions by the Fujimori government.

  136. 136.

    See for example on the national competition agencies in West Africa, see Bakhoum/Molestina, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 89, 100.

  137. 137.

    See the experiences of Emilio José Archila, former Superintendent for Industry and Trade in Colombia, who had ruled against the merger of the airlines Avianca (state-owned) and Aces airlines in 2001. See on the national competition law structures, Part II, Dimension III: Sect. 7.2.1.

  138. 138.

    Cseres notes this with regards to the Central and Eastern European States (CEECS): “Political independence is not guaranteed in all the countries. This is especially true in the case of state aid monitoring.”; Cseres, Multi-Jurisdictional Competition Law Enforcement, 3 Eur. Comp. J. 465, 486 (2007).

  139. 139.

    On the effects resulting from a certain institutional design of the regional competition authority and the benefits of attaining greater independence in competition law enforcement, see below Part III, Dimension III: Sect. 12.3.

  140. 140.

    Trinidad Cement Limited v The Competition Commission, Caribbean Court of Justice Application No. OA 1 of 2012, CCJ 4 (OJ).

  141. 141.

    Cseres, Integrate or Separate. Institutional Design for the Enforcement of Competition Law and Consumer Law, 11 April 2013, p. 18 <http://ssrn.com/abstract=2200908> accessed 11 November 2018.

  142. 142.

    In the member states of WAEMU it is for example very common that consumers and businesses accept and prefer prices that are fixed by the government, see Bakhoum, A Developing-Country Perspective on “Global Competition”, 28 October 2011, Chicago, p. 8.

  143. 143.

    This is for example the case in Niger, see Bakhoum, A Developing-Country Perspective on “Global Competition”, 28 October 2011, Chicago, p. 14.

  144. 144.

    Clark, Competition Advocacy: Challenges for Developing Countries, 6/4 OECD J. Comp. L. Policy 69, 71 (2005).

  145. 145.

    Alvarez/Horna, Implementing competition law and policy in Latin America: The role of Technical Assistance, 83 Chi.-Kent L.Rev. 91, 97 (2008); Trebilcock/Iacobucci tend towards an integrated agency model, in which a specialized competition agency undertakes investigative, enforcement, and adjudicative functions irrespective of concerns regarding the agency’s independence. See Trebilcock/Iacobucci, Designing Competition Law Institutions, 41 Loy. U. Chi. L.J. 455, 467ff. (2010); Menns/Eversley argue for the need to separate the enforcement, investigative and adjudicative personnel or bodies within the agency from the realm of political influence: Menns/Eversley, The Appropriate Design of the CARICOM Competition Commission, 20 May 2011, Amsterdam, p. 8.

  146. 146.

    Mehta/Agarwal/Singh, Politics Trumps Economics, 2007, pp. 36f.

  147. 147.

    Menns/Eversley, The Appropriate Design of the CARICOM Competition Commission, 20 May 2011, Amsterdam, p. 11.

  148. 148.

    Clark, Competition Advocacy: Challenges for Developing Countries, 6/4 OECD J. Comp. L. & Policy 69, 71 (2005). Along the same lines, according to De León “the institutional independence of competition agencies rests on four pillars: possession of an independent legal charter; financial autonomy in the provision of funds and management of its own resources; tenure stability in the appointment of policy officials; and involvement of several government bodies in the appointment of the competition authorities”. See De León, An Institutional Assessment of Antitrust Policy, 2009, pp. 24ff.

  149. 149.

    See on the creation and the promotion of a competition culture also Part III, Sect. 11.7.

  150. 150.

    Trebilcock/Iacobucci, Designing Competition Law Institutions, 41 Loy. U. Chi. L.J. 455, 457 (2010).

  151. 151.

    Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, p. 178f.

  152. 152.

    Trebilcock/Iacobucci, Designing Competition Law Institutions, 41 Loy. U. Chi. L.J. 455, 458 (2010).

  153. 153.

    Ibid.

  154. 154.

    On the importance of preserving flexibility in the framework of a regional competition law structure, see Part III, Sect. 11.10.

  155. 155.

    Ziller, The Challenges of Governance in Regional Integration, 2005, p. 8.

  156. 156.

    Anderson, Squaring the Circle? Reconciling sovereignty and global governance through global government networks, 118 Harv. L. Rev. 1255, 1278 (2005).

  157. 157.

    Trebilcock/Iacobucci, Designing Competition Law Institutions, 41 Loy. U. Chi. L.J. 455, 457 (2010).

  158. 158.

    Gal and Faibish distinguish between direct and indirect costs of regional competition agreements, see Gal/Faibish Wassmer, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 291, 301.

  159. 159.

    See example of OECS in the Caribbean, though the issue arises of how to treat the OECS within the CARICOM.

  160. 160.

    Article 176(1) of the Revised Treaty of Chaguaramas.

  161. 161.

    Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 322.

  162. 162.

    Ibid.

  163. 163.

    This is even the case in the WAEMU, in which the protection of national competences has caused national competition authorities to refrain from cooperating with the WAEMU Commission.

  164. 164.

    Gal, Institutional Solutions when Antitrust Enforcement Resources are Scarce, 41 Loy. U. Chi. L.J. 417, 426 (2010).

  165. 165.

    Gal, Institutional Solutions when Antitrust Enforcement Resources are Scarce, 41 Loy. U. Chi. L.J. 417, 430 (2010).

  166. 166.

    Singh, Competition and Competition Policy in Emerging Markets, 2002, p. 6; Scherer, Competition Policies for an Integrated World Economy, 1994, pp. 32ff.

  167. 167.

    Mateus, Competition and Development: What Competition Law Regime?, 2010, p. 8 <http://ssrn.com/abstract=1699643> accessed 11 November 2018.

  168. 168.

    Ibid.

  169. 169.

    Ibid.

  170. 170.

    Ibid., p. 9.

  171. 171.

    This finding corresponds to the experiences of the Peruvian competition law authority, the INDECOPI. The agency was very active and conducted many investigations, inquiries and prosecutions in the period from 1995 to 2000, in which Beatriz Boza was the INDECOPI’s president. Working at the INDECOPI was regarded highly; see Kovacic, Lessons of Competition Policy Reform in Transition Economies for U.S. Antitrust Policy, 74 St. John’s L. Rev. 361, 371 (2000). However, after she resigned, from 2000–2004 the new Peruvian government limited the INDECOPI’s powers significantly and curtailed its political independence. The competition authority was further marked by a lack of competition law expertise; OECD, Peer Review on Competition Law and Policy in Peru, 2004, pp. 15ff. <http://www.oecd.org/daf/competition/prosecutionandlawenforcement/34728182.pdf> accessed 11 November 2018.

  172. 172.

    In the same vein, a prerogative to decide cases, as the European Commission is vested with according to Article 11(6) of Regulation 1/2003, is not similarly pressing.

  173. 173.

    Irrespective of remaining ambiguities with regard to the specific definition in the CARICOM, all three RTAs rely on a case-allocation criterion that is based on the territorial effect of a conduct.

  174. 174.

    Efficiency can arise out of geographical closeness or existing data or information gathered at a competition authority. In case of targeted practices that involve several member states or take place in the entire common market the regional competition authority might be the appropriate authority under the condition that it accumulates the information on the practice. On the other hand, the European Commission demonstrates that decentralized enforcement can also constitute an efficient alternative even in the case of cross-border practices if sufficient competition law culture exists on the national level and if the national commitment to the common market is strong. Competition law enforcement by a regional competition authority can contribute to long-term or dynamic effects and enhance convergent application. As a consequence, practices that touch upon economically important sectors (for example telecommunications and transportation) for the maintenance of a common market might be dealt with more efficiently by the regional authority. In the framework of promoting balanced social standards within an RTA, this could require anticompetitive practices in socially relevant sectors (for example the health sector) to be addressed regionally. This might be particularly relevant in developing countries.

  175. 175.

    According to Jenny/Horna, despite developed harmonization of national laws, spontaneous cooperation between national competition authorities on enforcement issues does not even take place between countries that are important trading partners or geographically close; Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 289.

  176. 176.

    Buccirossi/Ciari/Duso/Spagnolo, Deterrence in Competition Law, 2009, p. 2.

  177. 177.

    Evenett/Levenstein/Suslow, International Cartel Enforcement, 2001, p. 22; Buccirossi/Ciari/Duso/Spagnolo, Deterrence in Competition Law, 2009, pp. 11ff.

  178. 178.

    Buccirossi/Ciari/Duso/Spagnolo, Deterrence in Competition Law, 2009, p. 18.

  179. 179.

    Buccirossi/Ciari/Duso/Spagnolo, Deterrence in Competition Law, 2009, p. 27.

  180. 180.

    More specifically on efficient sanctions and fines in Latin America, see Tapia, Increasing Deterrence in Latin American Competition Law Enforcement, 1–2 July 2011, London.

  181. 181.

    See Evenett/Levenstein/Suslow, International Cartel Enforcement, 2001, p. 21.

  182. 182.

    The situation is different with regard to mergers. Cumulative sanctions are not possible, because a merger is either granted (possibly with conditions) or denied; see Bätge, Wettbewerb der Wettbewerbsordnungen?, 2009, p. 136.

  183. 183.

    Sanctioning of international firms located abroad is only enhanced indirectly, through the pooling of resources or increased political weight of the RTA in the international context. First, a regional competition authority is less vulnerable to pressure from lobbying groups. Second, a regional competition law authority is structurally more effective with regard to the enforcement of measures against anticompetitive practices that concern several member states of the RTA.

  184. 184.

    Evenett, Analytical Considerations in the Design of Regional Rules on Competition Law, 2005, p. 9. Regarding the adequate level of fines in Latin America, see Tapia, Increasing Deterrence in Latin American Competition Law Enforcement, 1–2 July 2011, London, pp. 8ff.

  185. 185.

    Connor, Le Droit de la Concurrence de l’Union Économique et Monétaire Ouest Africaine, 6 J. Industry, Comp. Trade 195, 211ff. (2006).

  186. 186.

    See also Baetge, Globalisierung des Wettbewerbsrechts, 2009, p. 138.

  187. 187.

    Bakhoum, A Developing-Country Perspective on “Global Competition”, 28 October 2011, Chicago, pp. 13ff.

  188. 188.

    For example in the form of low prices.

  189. 189.

    With regard to the experiences in the EU, see Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 286.

  190. 190.

    In CARICOM and the AndeanC, the RTAs have created regional universities, which inter alia include integration-related topics in their curriculum. In CARICOM, the University of West Indies has campuses in Barbados, Jamaica and Trinidad and Tobago. The AndeanC created the Simón Bolívar Andean University, whose main campus is located in Bolivia.

  191. 191.

    Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231, 243.

  192. 192.

    Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231, 243f. Alvarez/Horna argue that regional law cannot replace a national law that is considered as legitimate by local stakeholders; see Alvarez/Horna, Implementing competition law and policy in Latin America: The role of Technical Assistance, 83 Chi.-Kent L.Rev. 91, 98 (2008).

  193. 193.

    Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231, 243f.

  194. 194.

    See above Part III, Sect. 11.6.3.

  195. 195.

    De León, An Institutional Assessment of Antitrust Policy, 2009, p. 383.

  196. 196.

    Member states have to participate in meetings of the Consultative Committee on Competition and have to assist the WAEMU Commission in conducting investigations, Part II, Dimension IV: Sect. 8.2.1.1.

  197. 197.

    Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 154.

  198. 198.

    See for example the case DHL v Sonapost in the WAEMU, in which DHL withdrew its complaint after it had been transferred to the WAEMU Commission, Part II, Dimension II: Sect. 6.1.1.

  199. 199.

    For more details on the difficulties of accessibility and transparency of a regional competition law system, see below Part III, Sect. 11.8.

  200. 200.

    This is the case in the CARICOM, where individuals are actually excluded from submitting complaints directly to the CARICOM Competition Commission; see above on market surveillance, Part II, Dimension IV: Sect. 8.1.1 and on the initiation and handling of investigations, Part II, Dimension IV: Sect. 8.1.2.

  201. 201.

    Pollard, in: Hall/Chuck-A-Sang, CARICOM Single Market and Economy Genesis and Prognosis, 2007, pp. 91, 111.

  202. 202.

    Competition advocacy, which targets the private sector.

  203. 203.

    Summary of competition advocacy in the three RTAs, Part II, Dimension IV: Sect. 8.1.4.

  204. 204.

    On the importance of the evolution of regional case law see below, Part III, Sect. 11.3.3.

  205. 205.

    A positive example is the decision of the CARICOM Competition Commission to initiate an investigation against a large cement company in the region, Trinidad Cement Limited v The Competition Commission, Caribbean Court of Justice Application No. OA 1 of 2012, CCJ 4 (OJ).

  206. 206.

    This was the case in the European Union and has been improved through Regulation 1/2003.

  207. 207.

    Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 320.

  208. 208.

    Interestingly, in the WAEMU, the proposed new regulation makes notifications for exemption optional.

  209. 209.

    This requirement is not clearly established in the AndeanC; see on Claims for Damages, Declarations, Injunctions and criminal law liability for breaches of regional competition law, Part II, Dimension IV: Sect. 8.1.3.3.

  210. 210.

    In the absence of such a monopoly, convergent application requires national competition authorities to be highly committed to regional competition law and regional legal precedents. The European system also suggests that controlling mechanisms, such as a reallocation through the prerogative of the European Commission, might guarantee convergence.

  211. 211.

    See the DHL/Post case in the WAEMU. After the Senegalese authority transferred the case to the WAEMU Commission, the enterprise withdrew its complaint, see above Part II, Dimension II: Sect. 6.1.1.

  212. 212.

    In the European Union all Member States have signed the European Convention on Human Rights. Moreover see CJEU, Judgement of 13 April 2000, Case C-292/97, Karlsson and Others, ECR I-2760, para. 37 stipulates that “requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules.” See Wils, The Relationship between Public Antitrust Enforcement and Private Actions for Damages, 32/1 W. Comp. 3, 17 (2009).

  213. 213.

    In the CARICOM, individuals need to be granted special leave in order to address the Caribbean Court of Justice. Yet because of the ambiguous wording of Chapter VIII, it is unclear whether national competition authorities actually are subject to an obligation to transfer cases; see above Part II, Dimension IV: Sect. 8.1.1.2. Nevertheless, the CARICOM competition law enforcement structure of a decentralized inter-governmental system demonstrates the increased importance of a regional court also with regard to the protection of individuals’ rights.

  214. 214.

    Part II, Dimension IV: Sect. 8.3.2.5.

  215. 215.

    Cortázar, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 133, 154ff.

  216. 216.

    See on private damages in the European Union, Directive on Antitrust Damages Actions of 24 October 2014, 2013/0185 (COD), signed into law on 26 November 2014 and adopted on 10 November 2014, OJ L 349, 5 December 2014, pp. 1–19.

  217. 217.

    Information mechanisms between regional competition authorities and national judiciaries are included in the WAEMU in Article 22(4) of Regulation No. 03/2002/CM/UEMOA and Article 30 of the Regulation contains a professional secrecy provision. In the AndeanC Articles 23–25 of Decision 608 deal with confidentiality issues, but do not specifically deal with exchange of information between national courts and the Secretariat General. In the CARICOM, Article 170(4) of the Revised Treaty of Chaguaramas sets out a confidentiality rule for member states and according to Article 173(2) lit. g) of the RTC the CARICOM Competition Commission must facilitate exchange of relevant information and expertise. This provision might also include exchange of information with the national judiciary.

  218. 218.

    Nevertheless, the predicted increase of individual prohibition decisions by the European Commission did not occur, see Wils, Ten Years of Regulation 1/2003, 4 J. Eur. Comp. L. Practice 293, 298ff. (2013).

  219. 219.

    Ehlermann, Implementation of EC Competition Law by National Anti-Trust Authorities, 17 ECLR 88, 89 (1996).

  220. 220.

    In the course of this study, there was no evidence for or against a high level of corruption among national judges. On the contrary, judges were usually considered as highly competent public officials by civil society. However Lande in an early article restates an opinion in the context of the discussion regarding the implementation of competition laws in transition economies that: “many of the enforcers and judges in a number of transition economies are likely to be corrupt and/or inexperienced in competition matters. Corrupt and/or inexperienced decision makers can be a tremendous problem because every antitrust law contains terrifying levels of discretion. (…) [A]ntitrust enforcers and judges often will be tempted to (mis)use whatever laws they have been given, especially if they come from a country with a tradition of centralized planning or heavy involvement in business affairs by government bureaucrats. The decision makers’ learning curves are likely to be slow and painful for the economy.”, Lande, Creating Competition Policy for Transition Economies, 23 Brook. J. Int’l. Law 339, 345f. (1997).

  221. 221.

    Jenny/Horna rightly argue: “At first, the fact that national authorities and courts did not participate very actively in the enforcement of EU law was not considered problematic as it allowed the European Commission to develop the case law (…) in a more systematic and consistent manner than would have been the case had the inexperienced national authorities been more actively involved.”, Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 288f.

  222. 222.

    Generally, public enforcement measures are considered to aim at the punishment of anticompetitive practices in the relevant market and entail a deterrent effect, private enforcement measures are considered to primarily aim at the compensation for a specific damage. The European Union, Directive on Antitrust Damages Actions of 24 October 2014, 2013/0185 (COD), OJ L 349 is considered to aim at both.

  223. 223.

    For more details on the attribution of competences for national judges, see below Part III, Dimension IV: Sect. 12.4.7.

  224. 224.

    The EU is a highly developed RTA. However, it lacks the so-called “competence-competence”, the competence to attribute itself with a competence to legislate or act on a specific matter. This competence remains within the member states. This is also a feature that distinguishes an RTA from a sovereign state.

  225. 225.

    Mehta/Agarwal/Singh, Politics Trumps Economics, 2007, pp. 14f.

  226. 226.

    Gerber, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 253, 259ff.

  227. 227.

    In this context, Gerber distinguishes between “formal regionalization” (impetus to locate competition law at the regional level) and “actual implementation of competition law”. According to Gerber “[t]here are many incentives formally to regionalize competition law (…); however, political factors provide far less support for implementation of competition law at the regional level.” See Gerber, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 253, 271.

  228. 228.

    For example, in the WAEMU: Senegal. In the AndeanC: Peru and Colombia. In the CARICOM: Barbados and Jamaica.

  229. 229.

    Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231, 240.

  230. 230.

    In the AndeanC, Peru, despite being one of the economically stronger member states, is more interested in national competition law enforcement. In the WAEMU, Burkina Faso has been cooperating regularly with the WAEMU Commission. Senegal, an economically relatively strong member state, has not been an active cooperation partner in regional competition law enforcement. In the CARICOM, for the lack of sufficient regional legal precedents, it is difficult to draw conclusions at this point.

  231. 231.

    Gal/Faibish Wassmer, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 291, 302.

  232. 232.

    See above on regional competition law objectives, Part II, Dimension I: Sect. 5.3.1.

  233. 233.

    Fox, Economic Development, Poverty, and Antitrust, 13 Sw. J.L. Trade Americas 101, 121 (2007).

  234. 234.

    Even the consumer welfare approach does not constitute a social objective of competition law. Rather, it emphasizes the relevance of possible economic consequences for the consumer. South Africa was the first jurisdiction to include and allow non-classical competition law considerations in its competition law enforcement and analysis.

  235. 235.

    Fox, Economic Development, Poverty, and Antitrust, 13 Sw. J. L. Trade Americas 101, 102ff. (2007).

  236. 236.

    Ziller even argues that “flexibility is a condition of success” of regional integration, see Ziller, The Challenges of Governance in Regional Integration, 2005, p. 9.

  237. 237.

    One should thus welcome the reform initiatives in the WAEMU with regard to the centralized competition law enforcement. In the AndeanC, the “downloading option,” which led to a situation of complete harmonization of national and regional competition laws, only functioned as a transitory device. Regarding the benefits that arose from centralized competition law enforcement in the European Union, see Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 287.

  238. 238.

    See on the notion of time, Part II, Dimension VI: Chap. 10.

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Molestina, J. (2019). General Conclusions on the Efficacy of a Regional Competition Law System. In: Regional Competition Law Enforcement in Developing Countries. Munich Studies on Innovation and Competition, vol 9. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-58525-2_11

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