Competition Law and Regional Economic Integration

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W O R L D B A N K W O R K I N G P A P E R N O Jointly financed by the European Commission and the World Bank Competition Law and Regional Economic Integration An Analysis of the Southern Mediterranean Countries Damien Geradin THE WORLD BANK W O R L D B A N K W O R K I N G P A P E R N O Jointly financed by the European Commission and the World Bank Competition Law and Regional Economic Integration An Analysis of the Southern Mediterranean Countries Damien Geradin THE WORLD BANK Washington, D.C THE EUROPEAN COMMISSION Copyright © 2004 The International Bank for Reconstruction and Development / The World Bank 1818 H Street, N.W Washington, D.C 20433, U.S.A All rights reserved Manufactured in the United States of America First printing: June 2004 printed on recycled paper 06 05 04 World Bank Working Papers are published to communicate the results of the Bank's work to the development community with the least possible delay The manuscript of this paper therefore has not been prepared in accordance with the procedures appropriate to formally-edited texts Some sources cited in this paper may be informal documents that are not readily available The findings, interpretations, and conclusions expressed in this paper are entirely those of the author(s) and not necessarily reflect the views of the Board of Executive Directors of the World Bank or the governments they represent The World Bank does not guarantee the accuracy of the data included in this work The boundaries, colors, denominations, and other information shown on any map in this work not imply on the part of the World Bank any judgment of the legal status of any territory or the endorsement or acceptance of such boundaries The material in this publication is copyrighted The World Bank encourages dissemination of its work and normally will grant permission for use Permission to photocopy items for internal or personal use, for the internal or personal use of specific clients, or for educational classroom use, is granted by the World Bank, provided that the appropriate fee is paid Please contact the Copyright Clearance Center before photocopying items Copyright Clearance Center, Inc 222 Rosewood Drive Danvers, MA 01923, U.S.A Tel: 978-750-8400 • Fax: 978-750-4470 For permission to reprint individual articles or chapters, please fax your request with complete information to the Republication Department, Copyright Clearance Center, fax 978-750-4470 All other queries on rights and licenses should be addressed to the World Bank at the address above, or faxed to 202-522-2422 ISBN: 0-8213-5892-8 eISBN: 0-8213-5893-6 ISSN: 1726-5878 Damien Geradin is Professor of Law at the University of Liège and Director of the Global Competion Law Centre at the College of Europe, Bruges Library of Congress Cataloging-in-Publication Data has been requested TABLE OF CONTENTS Foreword v Abstract vii Acknowledgments ix Abbreviations and Acronyms xi Executive Summary 1 Introduction 13 Objectives and Instruments of Competition Law 17 Competition, Trade and Emerging Economies 21 Competition and Trade 21 Competition and Developing Economies 23 Competition Law and Infrastructure Industries 27 Rules of Competition in the Association and Cooperation Agreements 33 Competition Rules in the Agreements Concluded with the Mediterranean Partners 33 The Competition Rules in the New Euromed Agreements 35 The Effectiveness of the Competition Rules of the Association Agreements 37 The Implementation by the Council of Association 37 The Degree of Protection Enjoyed by Individuals 40 The Way Ahead 41 Competition Rules and the Accession Process 43 The Obligations Imposed to Candidate Countries in the Competition Field 44 The Mechanisms of Accompaniment and Evaluation in the Competition Law Field 45 Domestic Competition Regimes in the Mediterranean Partners 47 State of Adoption of Domestic Competition Laws in the Mediterranean Partners 47 Content of Domestic Competition Laws 48 Implementation and Enforcement of Domestic Competition Laws 57 Implementation and Enforcement in the Candidate Countries 57 Implementation and Enforcement in Israel 58 Implementation and Enforcement in the Maghreb Countries 58 A Convergence of Domestic Competition Rules 67 What is Convergence? 68 Rationales for Convergence 70 The Need for Cost/Benefit Analysis 72 The Need for a Prudent Approach 73 iii iv CONTENTS The Need to Establish Priorities and Develop an Enforcement Agenda 78 Alternatives to Convergence Around EC rules 80 10 Summary and Policy Proposals 83 References 87 BOXES 1.1 The Euro-Mediterranean Partnership 3.1 The Mediterranean Region’s Failure to Integrate the Global Economy 3.2 Poor Cooperation between Developing Countries with Foreign Competition Authorities in Competition Law Enforcement 3.3 Examples of Successful Applications of Competition Rules in Developing Countries 4.1 Examples of Successful Application of Competition Rules in the Telecommunication Sector 5.1 Examples of Regional Trade Agreements Comprising Competition Rules 5.2 Enforcement of Competition Rules in the EEA 7.1 Implications of Enlargement for the MPs 7.2 The Turkish Competition Authority 7.3 The COMESA Draft Competition Regulations 8.1 The Turkish Competition Authority Ruling on GSM Operators 8.2 Enforcement of Antitrust Rules in Israel—Example of a Significant Cartel Case 9.1 The New Neighborhood Policy 10.1 Possible Initiatives under a Technical Assistance Program for Competition Policy 14 22 24 25 31 34 42 48 50 55 58 59 68 86 TABLES 4.1 Telecommunication Indicators in a Sample of Mediterranean Partners 28 4.2 State of Completion of the Liberalization of Telecommunications in the Mediterranean Partners 29 4.3 Bodies in Charge of the Regulation of the Telecommunications Sector in Southern Mediterranean Countries 30 7.1 Competition Law in the MEDA Countries 49 7.2 Competition Authorities in the MEDA Countries 56 8.1 Involvement of the Israeli Antitrust Authority (IAA) in the Promotion of Competitive Reforms and Competition Advocacy 59 8.2 Cases and Consultations Referred to the Competition Council 60 8.3 Distribution of Cases Filed According to the Nature of the Plaintiff 60 8.4 Distribution of Cases Filed by Economic Activity 61 8.5 Decisions Issued by the Council 61 8.6 Consultations of the Competition Council 62 8.7 An Analysis of the Domestic Competition Laws of the Mediterranean Partners 64 9.1 Overview of Transnational Agreements on Competition Law Enforcement 78 9.2 Intensity of International Cooperation in the Field of Competition Law Enforcement 79 9.3 Overview of Intra-regional Trade in the Mediterranean Partners 81 FOREWORD T his is the third regional study prepared by the joint World Bank-European Commission Programme on Private Participation in Mediterranean Infrastructure (PPMI) The study deals with the interface between competition law and economic integration in the context of the EuroMediterranean partnership The study seeks to map out key policy issues that should be addressed for successfully implementing or strengthening competition law regimes in the Partner Countries The key finding of this study is that adoption and strengthening of a competition law regime is a key component of the regulatory reforms, which are required to allow a market economy in the region The study stresses that the implementation of successful competition law regimes involves complex challenges, which cannot be addressed without a substantial involvement of the European Union (EU) and the Mediterranean Partners (MPs) The study argues that the competition rules inserted in the Association Agreements signed between the EU and the MPs not currently provide adequate protection against anticompetitive practices affecting trade between these blocks Moreover, the competition law regimes adopted by the MPs are generally poorly enforced with the consequences that many domestic anticompetitive practices remain unchallenged Efforts will have to be made both at the bilateral and domestic level to provide for competition regimes that will effectively prevent anticompetitive conduct from occurring This study also addresses the issue of regulatory convergence between the EU and the MPs in the competition law field, that is, whether the MPs should align their competition rules with European competition rules It argues that while such convergence would bring a series of benefits to both the EU and the MPs, it would also involve costs The study argues in favor of a prudent approach whereby the transposition of European competition rules in the MPs would not be automatic, but would be based on the local circumstances of each MP It is also argued that one of the primary tasks of the competition authorities in the MPs should be to develop a realistic enforcement agenda, to ensure that the limited resources of these authorities are used in the most effective way In its final part, the study proposes a preliminary list of steps that could be taken by the European Commission and the MPs to strengthen competition policy in the Mediterranean region, including proposals for technical assistance in the field of competition While the proposals made in the study not necessarily represent the official views of the European Commission or of the World Bank, the study can contribute to a broader and more structured debate in the region and among the Mediterranean Partners Reform efforts by policy makers will, however, be needed to move from strategy to action The overhaul of the policy framework in the competition law field will also require technical assistance from the donor community Emmanuel Forestier Director Christian Leffler Director Finance, Private Sector and Infrastructure Middle East and North Africa Region The World Bank Middle East, South Mediterranean DG External Relations European Commission v ABSTRACT T his study argues that adoption/strengthening of a competition law regime is a key component of the regulatory reforms, which are required to allow a market economy in the Mediterranean region It also argues that the competition rules inserted in the Association Agreements signed between the European Union (EU) and the Mediterranean Partners (MPs) currently fail to provide adequate protection against anticompetitive practices affecting trade between these blocks Moreover, the competition law regimes adopted by the MPs are generally poorly enforced with the consequence that many domestic anticompetitive practices remain unchallenged In addition, this study addresses the issue of regulatory convergence between the EU and the MPs in the field of competition law, that is, whether the MPs should align their competition rules on European Community (EC) competition rules It argues that while such convergence would bring a series of benefits to both the EU and the MPs, it would also involve costs The study thus argues in favor of a prudent approach whereby the transposition of EC competition rules in the MPs would not be automatic, but would be based on the local circumstances of each MP One of the primary tasks of the MPs’ competition authorities should be to develop a realistic enforcement agenda, which would ensure that the limited resources of these authorities are used in the most effective manner possible In its final part, this study proposes a series of steps that could be taken by the European Union and the MPs to strengthen competition policy in the Mediterranean region, including proposals for technical assistance in the field of competition law The Programme on Private Participation in Mediterranean Infrastructure (PPMI) is a joint World Bank–European Commission program based in Brussels PPMI’s mandate is to promote infrastructure sector reform and provide expertise to the countries belonging to the EuroMediterranean Partnership and to its parent institutions Its activities focus on the introduction of competition, the modernization of regulatory frameworks, and the creation of an environment conducive to private participation PPMI carries out trainings, research, provides direct policy advice to governments, and helps its parent institutions coordinate and prepare projects in the infrastructure and private sectors This is the third regional study prepared by the PPMI Programme For more information visit the PPMI website at www.ppmi.org vii 82 WORLD BANK WORKING PAPER Several initiatives, such as the “Agadir Declaration”201 suggest that a more limited convergence of a sub-regional nature would be possible This initiative is at a very early stage and the modalities of the envisaged cooperation remain unclear In addition, it is too early to say whether the convergence of competition rules will be a priority in the development of trade relationships among the partner to this project It seems thus unlikely that the MPs will launch a process of regulatory convergence at the regional or sub-regional level The EC is aware of the shortcomings of cooperation between these countries and is using the Euromed Partnership to develop some forms of regulatory harmonization.202 201 The Agadir Declaration lays down the principles of cooperation between Egypt, Jordan, Morocco and Tunisia In the long run, those states affirm that they want to implement a free-trade area The EU has manifested strong support to this project (EC 2002b) 202 The European Commission today tries to use the Association Agreements to enhance regional cooperation and asks to all its partners to conclude a free-trade agreement with the other MPs that are already associated to the EC See EC (2000e), p 14 CHAPTER 10 SUMMARY AND POLICY PROPOSALS C ompetition law has witnessed an enormous growth these last two decades and today a large number of countries have adopted competition law regimes Such competition laws have often resulted from regulatory transplants Through the accession process, as well as the Association Agreements with third countries, the European Commission has managed to extend the sphere of application of EC competition rules to a large number of nations Some argue that today EC competition law is the dominant model of competition law in the world The adoption of competition law regimes can be beneficial to developing and emerging economies However, such economies generally present characteristics that differentiate them from industrialized countries The development of competition law regimes in emerging economies is a process that should be engaged into with great care Because of the limited institutional endowment of these countries, such regimes should avoid provisions giving large discretionary powers to the enforcement authorities or that require these authorities to make extremely complex assessments An incremental approach whereby emerging economies first apply competition law provisions dealing with the most blatant anticompetitive practices (such as cartels and abuses of a dominant position), while leaving more sophisticated processes (such as merger control) to a later stage, is advisable In the Southern Mediterranean countries, competition law has advanced on several fronts First, countries such as Cyprus, Malta, and Turkey, which are candidates to join the EU, have had to transpose EC competition rules into their domestic legal order as part of the accession process The transposition of the EC competition law has generally been satisfactorily completed and these candidate countries now have strict and coherent competition laws, and well functioning competition authorities The accession process has proved a very effective tool in promoting the development of competition law regimes in the candidate countries Second, the EC signed with non-candidate MPs Association Agreements containing competition law provisions that are patterned on the competition rules of the EC Treaty Several factors, such as the lack of implementation measures, have, however, limited the effectiveness of such rules in controlling anticompetitive practices affecting trade between the EC and the MPs Third, some non-candidate MPs have spontaneously adopted 83 84 WORLD BANK WORKING PAPER competition laws and created competition authorities While in some countries, such as in Israel, these laws have proven effective in challenging anticompetitive practices, in many MPs, domestic competition laws have been poorly implemented and have failed to discipline market actors In some policy documents, the Commission has expressed its desire to strengthen the competition law regimes of the non-candidate MPs through a process of regulatory convergence What the Commission seems to encourage is the progressive approximation of the competition rules of the MPs with EC competition rules Regulatory transplantation has often been criticized in the legal and economic literature as an ineffective way to promote regulatory reforms in developing and emerging economies, and this paper suggests that a careful approach be followed, whereby the MPs would be encouraged to transpose during an initial phase, Articles 81 and 82 of the EC Treaty in their domestic legal orders These provisions offer powerful tools for addressing the anticompetitive practices, which are the most likely to affect trade, such as vertical and horizontal restraints, and abuses of a dominant position The paper suggests that Articles 86, as well as 87–89 of the Treaty, should not be transposed in their current form in the non-candidate MPs It would be preferable that the MPs opt for a simplified and more straightforward version of Article 86(1), and that Article 86(2) should be replaced by a provision exempting in carefully defined circumstances, and subject to constant review, some sectors from the application of the competition law As far as State aids are concerned, the MPs should not transpose Articles 87–89 of the Treaty, but instead adopt a law which would contain both substantive and procedural rules allowing greater control and transparency (compared with the existing situation) in the area of State subsidies This law should be tailored to local circumstances and its implementation should be entrusted to a State aid monitoring authority As far as merger control is concerned, EC rules should only be transposed in a second phase, to be initiated when there is sufficient evidence that the MPs’ competition authorities have been able to successfully implement Articles 81 and 82 Merger control requires very complex assessments and the risks of mistaken decisions is high, especially when such assessments are made by insufficiently experienced competition authorities For those MPs that have already adopted a merger control regime, a prudent approach should be taken, pursuant to which only the mergers presenting very significant risks would be prevented and, when remedial actions are needed, preference should be given to simple and easily enforceable remedies As far as State aids are concerned, an equally prudent approach should be taken, as there is no clear evidence at this stage that the transposition of these rules will be desirable Against this background, some steps are suggested below These actions could be taken by the EC and other institutional donors to stimulate and sustain the development of effective competition policies in the MPs First, efforts should be made, at both EC and MP levels, to ensure that the Councils of Association of the Association Agreements adopt the necessary measures to implement the competition provisions contained in these agreements The absence of implementation measures deprives these provisions of any real effectiveness and fails to provide economic operators in the EU and the MPs from protection against anticompetitive practices affecting market access Second, the European Commission should adopt a communication making a clear statement on the scope and objective of the process of regulatory convergence it seeks to promote in the competition law field in the MPs While the Commission Communication on the New Neighborhood Policy provides useful information on the way the EU envisages future regulatory cooperation with its neighboring countries, there is still some uncertainty as to the degree of intensity of convergence being promoted, as well as the speed with which this process should take place To the extent possible, a possible the Commission should adopt a Communication containing a calendar of the initiatives that will be taken by the European Commission to promote convergence Third, additional research should be promoted to analyze the contribution of the development of competition law regimes on economic development, as well as the identification of the factors that play a critical role in the development of successful competition law regimes in emerging C OMPETITION L AW AND R EGIONAL E CONOMIC I NTEGRATION 85 economies Little is known on the impact of competition law regimes on the development of a market economy in countries, such as the MPs, and a greater understanding of this impact is needed to make a compelling case to convince MPs to devote resources to the development, and subsequent implementation, of such regimes Fourth, as argued in this paper, the EC and the non-candidate MPs should explore the possibility of dividing the convergence process into two or more phases A first phase could, encourage MPs to transpose Articles 81 and 82 of the EC Treaty into their domestic legal orders and create, or strengthen, the authorities that will be entrusted with the implementation and enforcement of such laws A second phase would encourage MPs to adopt a State aid regime and transpose the Merger Control Regulation or, more realistically, to adopt a merger control procedure that is compatible with this merger regulation This second phase would only be triggered when there is sufficient evidence that the enforcement bodies in the MPs have the capacity to make complex economic assessments The first and second phases could follow different schedules for each MP depending on the ability of these countries to implement competition policies When a merger control regime already exists, advice should be provided to the MPs on how to implement this regime effectively Fifth, a strategy should be developed by the MPs, with the support of the EC and other institutional donors, to determine which components of EC secondary competition legislation could be usefully transposed in their domestic order The development of an effective competition law regime goes beyond the adoption of the rules preventing anticompetitive behavior, such as Articles 81 and 82 It also requires the adoption of rules of procedures Efforts should also be made to inform the MPs on the growing amount of soft law instruments which are adopted by the Commission (communications, guidelines, etc.) Sixth, a strategy should be developed by the MPs, with the support of the EC and other institutional donors, to determine which additional legislative reforms should be undertaken to facilitate the implementation of a successful competition law regime Legislative changes may be required in areas, such as the regulation of accounting practices, bankruptcy, contracts, etc Reforms over such matters are generally being engaged in the MPs, but special efforts should be made to ensure that such reforms correspond to the needs of a well-functioning competition policy Additional changes may also be required to allow for greater autonomy of newly created administrative authorities, such as the competition authorities, in terms of hiring qualified candidates at market prices, collecting fines from market actors, and so forth Seventh, resources should be invested in compiling data about the output of competitive authorities in the MPs The data collected should have both quantitative and qualitative aspects with a view to allow some benchmarking between these competition authorities Eight, the convergence process should be accompanied by substantial financial and technical assistance by the EC and other institutional donors This assistance should be well-targeted to the needs of the MPs, and should cover a period of time that is sufficient to ensure a successful implementation and enforcement of the transposed competition rules A list of the various components that could be found in such an assistance programme is contained in Box 10.1 Ninth, a dissemination strategy should be developed to inform all stakeholders of the benefits that can be derived from successful implementation of a competition law regime This strategy should comprise activities at regional, national, and local levels Special efforts should be made to involve professional organizations (chamber of commerce, local bars), as well as consumer organizations Finally, a substantial effort should be made to encourage the development of academic programs, including courses, seminars, and workshops, in the area of competition law and economics Most MPs suffer from a lack of qualified experts in competition law and economics, which is partly due to the short supply of graduates in these areas Moreover, competition law reforms are unlikely to produce effects, before a sufficient mass of professionals have a sufficient knowledge of competition law principles and processes 86 WORLD BANK WORKING PAPER BOX 10.1: POSSIBLE INITIATIVES UNDER COMPETITION POLICY A TECHNICAL ASSISTANCE PROGRAMME FOR The European Commission has expressed its desire to strengthen the competition law regimes of Southern Mediterranean countries The following suggests possible initiatives that could be undertaken to this end: a) legislative drafting for the MPs planning to adopt a competition law or to modify their competition law so as to make it compatible with EC competition rules This drafting should be done by experts who not only have an excellent understanding of competition law issues, but also of the local, economic, and legal circumstances “Cut and paste” transposition should be avoided b) fund projects of “arabization” of competition law concepts Such concepts have generally no equivalent in the Arabic language and an important step to avoid confusion over the objectives and scope of competition rules, would be to mandate a group of local experts to develop a lexicon of competition law concepts translated in Arabic c) help create a competition authority for the MPs that are planning to set up such an authority or that want to strengthen their existing authority Such support should include help to: (i) the design of the authority (composition of the authority, ways to fund it); (ii) the development of a strategy to hire qualified professionals (elaboration of schemes permitting the competition authority to offer competitive salaries); (iii) the preparation of a work program for the authority, including the development of internal management rules, the development of an enforcement agenda; and (iv) the preparation of a strategy of cooperation between the 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The European Union, Enlargement and Reform” ECSA-Canada Conference, Toronto, May 30–June Goldstein, Andrea 2003 “The Political Economy of Regulatory Reform: Telecoms in the Southern Mediterranean.” OECD Development Center, Paper presented at the Fourth Mediterranean Social and Political Research Meeting, March Hillal, Ali E 2002 “The Challenge of Building Market Orientated Legal Institutions in Egypt.” Paper presented at the conference on Policy Challenges, Focusing on the Egyptian Economy, Cairo, Egypt, May 26–27 Laffont, Jean-Jacques 1998 “Competition, Information and Development” in Annual World Bank Conference on Development Economics Lahouel El Hédi, Mohamed 2000 “Competition Laws in MENA: An Assessment of the Status Quo and the Relevance of a WTO Agreement.” Paper Prepared for the Third Mediterranean Development Forum, Cairo, March 5–8 ——— 2003 “The Practice of Competition Policy in Tunisia (1991–2001).” Paper prepared for the EU-World Bank Programme on Private Participation in 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Competition Law and Regional Economic Integration is part of the World Bank Working Paper series These papers are published to communicate the results of the Bank’s ongoing research and to stimulate public discussion This study argues that adoption and strengthening of a competition law regime is a key component of the regulatory reforms reforms in the Mediterranean region It also argues that the competition rules inserted in the Association Agreements signed between the European Union (EU) and the Mediterranean Partners (MPs) currently not provide adequate protection against anti-competitive practices affecting trade between these blocks The competition law regimes adopted by the MPs are generally poorly enforced with the consequence that many domestic anti-competitive practices remain unchallenged Competition authorities in the MPs should develop a realistic enforcement agenda and ensure that the limited resources of these authorities are used in the most effective manner possible In addition, this study addresses the issue of regulatory convergence between the EU and the MPs in the field of competition law, that is whether the MPs should align their competition rules with European Community competition rules It argues that while such convergence would bring a series of benefits to both the EU and the MPs, it would also involve costs The study thus argues in favor of a prudent approach whereby the transposition of EC competition rules would be based on the local circumstances of each country In its final part, this study proposes a series of steps that could be taken by the European Union and its Mediterranean Partners to strengthen competition policy in the region, including proposals for technical assistance in the field of competition World Bank Working Papers are available individually or by subscription, both in print and online PRIVATE PARTICIPATION IN MEDITERRANEAN INFRASTRUCTURE A joint World Bank/European Commission Programme Telephone: 32-2-552-00-49 Internet: www.ppmi.org ISBN 0-8213-5892-8 THE WORLD BANK THE EUROPEAN COMMISSION 1818 H Street, NW Washington, DC 20433 USA Telephone: 202 473-1000 Internet: www.worldbank.org E-mail: feedback@worldbank.org B-1049 Brussels BELGIUM Telephone: 32-2-299-11-11 Internet: www.europa.eu.int ™xHSKIMBy358924zv":&:>:*:- ... Abbreviations and Acronyms xi Executive Summary 1 Introduction 13 Objectives and Instruments of Competition Law 17 Competition, Trade and Emerging Economies 21 Competition and Trade 21 Competition and. .. Chapter 3: Competition, Trade and Emerging Economies This chapter reviews the relationship between competition law and trade, as well as the relationship between competition law and economic development... courses, seminars, workshops, etc., in the area of competition law and economics Most MPs suffer from a lack of qualified experts in competition law and economics, which is partly due to the short supply