Skip to main content
SpringerLink
Log in

The Optimal Degree of Centralization or Decentralization: Recommendations for and Implications of Certain Institutional Designs

  • Chapter
  • First Online:
Regional Competition Law Enforcement in Developing Countries

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

  • 205 Accesses

Abstract

Having defined the elements that shape the degree of centralization or decentralization of competition law enforcement in the WAEMU, the AndeanC and the CARICOM, the next section will draw general conclusions and discuss the implications for the institutional design of competition law enforcement in developing countries. This mainly raises two questions: (1) Which implications result from a specific institutional design of competition law enforcement? The answer to this question will be given for the specific “dimensions” of competition law enforcement in an RTA. (2) What are the conditions in the sense of “competition constraints” that determine the efficacy of a certain institutional competition law enforcement design?

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 109.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 139.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Drexl develops several principles of orientation for the design of a regional enforcement system, see Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231–252; see also on competition constraints Bakhoum/Molestina, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 89, 108ff.

  2. 2.

    None of the three, the WAEMU, the AndeanC, or the CARICOM, constitutes such a loose association of sovereign states.

  3. 3.

    A unification of competition law matters under regional competition law corresponds to the exclusive competence of a regional competition authority to apply competition law within the RTA.

  4. 4.

    Recalling that a regional competition authority is structurally better positioned to deal with international anticompetitive practices or anticompetitive practices by multi-national enterprises (MNEs). See above Part III, Sect. 11.3.

  5. 5.

    Implications regarding the regional legal framework actually concern Dimension II, regarding legislative primacy in competition law matters. Full harmonization of competition law leads to a similar situation, in which only one uniform set of competition law rules is applicable throughout the region of an RTA.

  6. 6.

    The actual enforcement of regional competition law relates to national procedural autonomy (Dimension II) and actual enforcement of regional competition law (Dimension III).

  7. 7.

    In the WAEMU, the AndeanC and the CARICOM, there have not been obvious cases of conflicts between regional competition law and national sectorial law. This is yet most probably attributed to a lack of transparency, rather than to the lack of actual conflicts. See above Part III, Sect. 11.4.3.1.

  8. 8.

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

  9. 9.

    Experiences in the AndeanC support this assumption: Despite the formal competence demarcation criterion, member states and according national competition authorities did not apply regional competition law. See above Part II, Dimension II: Sect. 6.3.

  10. 10.

    Article 181 of the Revised Treaty of Chaguaramas: de-minimis Rule.

  11. 11.

    On state-related behaviour and public enterprises, see Part II, Dimension I: Sect. 5.1.3.

  12. 12.

    See above Part III, Sect. 11.5.1.

  13. 13.

    This issue is interrelated to the level of flexibility of regional competition law enforcement. See above Part III, Sect. 11.10.

  14. 14.

    More information on the enforcement of exceptions, see below Part III, Dimension IV: Sect. 12.4.4.

  15. 15.

    Motta, Competition Policy, 2004, p. 23.

  16. 16.

    The topic of merger policy in developing countries is deliberately only treated superficially in this study, since it is a controversial matter that requires a discussion and a thorough economic analysis that would go beyond the scope of this study. For more information see Gal, Competition Policy for Small Market Economies, 2003, pp. 194ff.

  17. 17.

    De León, An Institutional Assessment of Antitrust Policy, 2009, p. 269: “Merger control drains resources from both applicants and competition agencies.” De León, Latin American Competition Law and Policy, 2001, pp. 111ff.

  18. 18.

    With regard to the Common Market for Eastern and Southern Africa (COMESA) Lipmile argues: “As trade and investment liberalization reduced entry barriers, firms may have greater incentives to engage in anti-competitive practices and mergers, which would limit market access by other firms.” Lipimile, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 205, 205.

  19. 19.

    In this context, mergers with cross-border effects can include mergers initiated by MNEs from outside the RTA, or those initiated by larger enterprises from another member state within an RTA.

  20. 20.

    See Part III, Sect. 11.3.

  21. 21.

    Kerber, in: Drexl, The Future of Transnational Antitrust, 2003, pp. 269, 286.

  22. 22.

    Gal, Competition Policy for Small Market Economies, 2003, p. 224.

  23. 23.

    See the experiences of the COMESA merger control law, which was enacted on 14 January 2013. On October 2014, it also published merger assessment guidelines. Despite the operability of the system, the regulations do not expressly exclude the parallel jurisdiction of the national competition authorities (i.e.: one-stop-shop principle or parallel applicability). In particular Kenya and Egypt insisted on parallel national filing obligations. By 2017, all national regulators except for the ones in Kenya recognize COMESA as a one-stop-shop system. See statement made by COMESA Competition Commission chief executive George Lipimile on 1 September 2017. On ambiguities regarding the competence allocation as regards merger control, see Rudman/Wilson, COMESA Competition Law – A New Regional Merger Regime for Eastern and Southern Africa, 4 J. Eur. Comp. L. Practice 368 (2013). Generally on the COMESA merger control, see Lipimile, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, p. 205.

  24. 24.

    See Part II, Dimension IV: Sect. 8.1.4.

  25. 25.

    See Part II, Dimension IV: Sect. 8.1.4.

  26. 26.

    See above Part III, Sect. 11.7.

  27. 27.

    See on the legislative competence in competition law matters, Part II, Dimension II: Chap. 6.

  28. 28.

    Lande, Creating Competition Policy for Transition Economies, 23 Brook. J. Int’l. Law 339, 339f. (1997).

  29. 29.

    This question refers to the inclusion of obligations on Member States as such. It thus mainly concerns the question of whether Member States should be “obliged” to enact national competition law structures. The question of whether a regional legislative framework should harmonize to a full or minimum extent is a related, but distinct question. It concerns the range of possible legislative obligations on the member states imposed by the regional level.

  30. 30.

    This argument was advanced in favour of the WAEMU’s unification of competition laws. See above Part II, Dimension I: Sect. 5.1.5.1.

  31. 31.

    Similarly Jenny/Horna, who argue that “adopting a national competition law in these cases, particularly when this is principally done to meet an obligation, is not sufficient to make Member States appreciate the benefits of competition either at national level or at the level of the regional grouping.” Jenny/Horna, in: Brusick/Alvarez/Cernat, Competition Provisions in Regional Trade Agreements, 2005, pp. 281, 319.

  32. 32.

    See Part II, Dimension I: Sect. 5.1.5.1 and Part II, Dimension II: Sect. 6.1.

  33. 33.

    See Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281, 292f. (2011).

  34. 34.

    One should not overestimate the practice of young competition law jurisdictions in developing countries to cite precedents from developed competition law jurisdictions such as the US or the EU. This does not mean that these jurisdictions actually constitute the pacemakers of national competition law implementation. Rather, their legal precedents are referred to because of the dearth of competition law cases in the younger jurisdictions. Moreover, US and EU competition law cases are often cited in a superficial and non-systematic way. See also the Ecuadorian Pfizer case, which inter alia referred to Chilean case law; see Part II, Dimension II: Sect. 6.3.3.

  35. 35.

    With regard to the leading jurisdictions in the AndeanC, see De León, An Institutional Assessment of Antitrust Policy, 2009, p. 82.

  36. 36.

    According to De León, in the EU, the European Commission played the pacemaker role (top–down); De León, An Institutional Assessment of Antitrust Policy, 2009, p. 82. In fact, in the early stage of European competition law implementation only Germany possessed a functioning domestic competition law regime, Monti, EC Competition Law, 2007, p. 401.

  37. 37.

    In fact, in the AndeanC and the CARICOM, regional competition law is designed after national competition laws (predominantly Peru, Colombia and Barbados, Jamaica). With regard to the AndeanC, see De León, An Institutional Assessment of Antitrust Policy, 2009, p. 82. Arguing in favour of harmonization bottom-up in the European Union at its initial stage, see Dreher, Kartellrechtsvielfalt oder Kartellrechtseinheit in Europa?, AG 437, 446f. (1993).

  38. 38.

    In this context, Ecuador and Bolivia implemented national laws that are not harmonized with Decision 608. See above Part II, Dimension II: Sect. 6.3.3.

  39. 39.

    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).

  40. 40.

    See also Dreher, who lists a number of basic competition law “structures” (“Kartellrechtliche Grundstrukturen”) that contribute to the achievement of convergence in a competition law system; Dreher, in: Forschungsinstitut für Wirtschaftsverfassung und Wettbewerb E.V., Umbruch der Wettbewerbsordnung in Europa, 1995, pp. 1, 6f.

  41. 41.

    CARICOM has even made special and differential treatment one of the main principles of the Revised Treaty of Chaguaramas, Part II, Dimension I: Sect. 5.3.1.3.

  42. 42.

    Apart from the mere primacy of regional law, see Part II, Dimension V: Sect. 9.2.

  43. 43.

    Part III, Sect. 11.4.2.

  44. 44.

    Part III, Sect. 11.4.1.

  45. 45.

    See above Part II, Dimension II: Sect. 6.2.

  46. 46.

    Weick, Competition Law and Policy in Senegal, 33/3 W. Comp. 521, 539 (2010).

  47. 47.

    With regard to the impact of the ECN in the European Union and Regulation 1/2003’s impact on Spain and Portugal Brokelmann states: “What is more, the new regime-in particular Articles 3(2) and 16(2) of the Regulation exerts a strong harmonizing influence on the interpretation of national competition law. This is not only due to the coordination mechanisms foreseen in Regulation 1/2003 but certainly also to the fluent dialogue between competition authorities in the framework of the ECN.” Brokelmann, Enforcement of Articles 81 and 82 EC under Regulation 1/2003, 29/4 W. Comp. 535, 553f. (2006).

  48. 48.

    Marcos, in Fox/Sokol, Competition Law and Policy in Latin America, 2009, pp. 453, 462.

  49. 49.

    Marcos, in Fox/Sokol, Competition Law and Policy in Latin America, 2009, pp. 453, 465ff.

  50. 50.

    Actually, these criteria only apply to the AndeanC in the context of this research. See Part II, Dimension IV: Sect. 8.3.2.2. The question regarding the power to initiate a preliminary reference ruling is distinct from the question of which institution is competent to issue a decision in regional competition law. In the AndeanC, this is the Secretariat General’s competence.

  51. 51.

    See above with regard to the implications arising because of a certain institutional design of a competition authority, Part III, Dimension III: Sect. 12.3.

  52. 52.

    In order to avoid the cost-intensive creation of specialized authorities, one might consider creating a mixed authority. In this context, the Fair Trading Commission in Barbados provides a positive example, in which efficiency gains were achieved through combining consumer and competition protection and utility regulation. On the other hand, mixed authorities can be problematic with regard to competition law enforcement, as other policies and law enforcement might be considered more important than competition law. For more information on the Fair Trading Commission in Barbados, see <http://www.ftc.gov.bb/> accessed 11 November 2018.

  53. 53.

    As private enforcement remains rare in developing countries, obligations for national legislators to adopt and apply specific procedural rules and provisions granting individuals’ rights protection still constitute a theoretical issue.

  54. 54.

    This is the case in the CARICOM: Article 170(3) of the Revised Treaty of Chaguaramas.

  55. 55.

    See Recommendation No. 6 of UNCTAD, Voluntary Peer Review on Competition Policies of WAEMU, Benin and Senegal, 2008, p. 158.

  56. 56.

    UNCTAD, Voluntary Peer Review on Competition Policies of WAEMU, Benin and Senegal, 2008, p. 34.

  57. 57.

    See above Part II, Dimension III: Sect. 7.2.2.

  58. 58.

    For example consumer protection authorities, if they exist. In Jamaica, the national consumer protection authority works closely with the national competition authority by exchanging information. Statements made in an interview with the author by representatives from the Fair Trading Commission in Kingston, Jamaica, 17 October 2012.

  59. 59.

    On the pros and cons of different institutional models of competition laws, see for example Fox, Antitrust and Institutions, 41 Loy. U. Chi. L. J. 473 (2010); Trebilcock/Iacobucci, Designing Competition Law Institutions, 41 Loy. U. Chi. L. J. 455 (2010).

  60. 60.

    This is an additional and different difficulty to the struggle to keep political considerations out of competition law enforcement; see Part III, Sect. 11.4.

  61. 61.

    In this context, the far-reaching enforcement of the COTED, which is composed of national ministers, has been criticized; see above Part II, Dimension IV: Sect. 8.2.2.

  62. 62.

    This is not a particularity of developing countries, but also European competition enforcement was partly held to be too political; see Fox, Antitrust and Institutions, 41 Loy. U. Chi. L.J. 473, 477f. (2010).

  63. 63.

    In the WAEMU, the WAEMU Commission has to take into account observations of the Directorate of Judicial Affairs and in the CARICOM, the COTED has far-reaching powers to supersede the scope of application of regional competition law.

  64. 64.

    The Secretariat General had already been criticized under the former Decision 285 for adopting a too formalistic and legalistic interpretation of Andean law, see De León, An Institutional Assessment of Antitrust Policy, 2009, p. 82.

  65. 65.

    With regard to a possible re-definition of the Secretariat General in the AndeanC regarding regional competition law enforcement, see below Part III, Sect. 13.2.

  66. 66.

    Fox, Antitrust and Institutions, 41 Loy. U. Chi. L.J. 473, 484 (2010).

  67. 67.

    Generally on the pros and cons of an integrated or separated institutional design of competition law and consumer law, see Cseres, Integrate or Separate. Institutional Design for the Enforcement of Competition Law and Consumer Law, 11 April 2013, pp. 1–51 <http://ssrn.com/abstract=2200908> accessed 11 November 2018.

  68. 68.

    This was the case in the CARICOM. See above Part II, Dimension III: Sect. 7.1.1.

  69. 69.

    The Barbadian competition authority is a mixed authority and is considered as one of the most efficient authorities within CARICOM.

  70. 70.

    In the case of the CARICOM, the installation of the regional Commission in Suriname created job opportunities for Surinamese citizens.

  71. 71.

    Cseres, Integrate or Separate. Institutional Design for the Enforcement of Competition Law and Consumer Law, 11 April 2013, pp. 33ff. <http://ssrn.com/abstract=2200908> accessed 11 November 2018.

  72. 72.

    According to Zoghbi, the main factors that should be considered by competition authorities in prioritising work and identifying the most damaging practises are also the likelihood of competitive harm, the resources needed for the investigation, the size and the importance of the relevant market, the deterrent value of pursuing, other aggravating factors and policy considerations. See Zoghbi, in: Mehta/Evenett, Politics Triumphs Economics?, 2009, pp. 89, 93ff.

  73. 73.

    Part II, Dimension IV: Sect. 8.1.1.

  74. 74.

    Even in an RTA with a very small territory and a limited number of member states, such as the OECS, monitoring functions should be shared. If national competition authorities and national competition law systems were completely substituted by the regional competition law system, monitoring functions would still be shared with organisations on the national level.

  75. 75.

    This could be described as concurrent market surveillance.

  76. 76.

    See below on differences between institutional designs of cooperation organ, Part III, Dimension IV: Sect. 12.4.6.

  77. 77.

    See on the problem of accessibility and private enforcement Part III, Sect. 11.8.

  78. 78.

    Possibly, the national competition authority could also determine whether a different national competition authority should have jurisdiction to deal with the matter. Yet cases with effects limited to the territory of one state will, however, rarely be brought to the authority.

  79. 79.

    Article 6 of Decision 285.

  80. 80.

    In the CARICOM, according to Article 176(1) of the Revised Treaty of Chaguaramas, national competition authorities have to undertake a preliminary examination of a business conduct in case the CARICOM Competition Commission invokes its ex officio right. Moreover, in case of disputes, it is the COTED that resolves the matter, see Article 176(5) of the Revised Treaty of Chaguaramas. See also Rule 9(2) of the CARICOM Competition Commission Rules of Procedure 2011.

  81. 81.

    In the AndeanC, the Secretariat General did not initiate ex officio investigations in the absence of submitted requests, in contrast to the European Commission, which investigated a number of delicate cases despite opposition from member states. See Botta, The Role of Competition Policy in the Latin American Regional Integration: A Comparative Analysis of CARICOM, Andean Community and Mercosur, 21–22 October 2011, St. Gallen. For an overview of the activities based on the initiative (20%) of the European Commission in 1996, see Cini/McGowan, Competition Policy in the European Union, 2008, p. 101. Yet the European Commission had greater support with regard to regional competition law enforcement and the commitment to economic integration was generally larger than in the AndeanC.

  82. 82.

    Given that the scope of application of regional competition law relies on such a condition, as recommended by this study. See above Part III, Dimension I: Sect. 12.1.1.

  83. 83.

    Part II, Dimension IV: Sect. 8.3.

  84. 84.

    This is clearly set out in the Guidelines regarding the application of Decision 608 in the AndeanC, Secretaría General de la Comunidad Andina, Guía Práctica para la aplicación de la Decisión 608 “Normas para la protección y promoción de la libre competencia en la Comunidad Andina”, 2007, p. 21.

  85. 85.

    For more information on the principle of primacy of regional law in exclusive, concurrent or parallel competition law enforcement, see Part III, Dimension V: Sect. 12.5.4.

  86. 86.

    The degree of centralization or decentralization of the decision-making competence will be dealt with below, see Part III, Dimension IV: Sect. 12.4.3.

  87. 87.

    This is the case in the European competition law system; Art. 11(6) of Council Regulation (EC) 1/2003.

  88. 88.

    In the WAEMU, Article 28(2) of Regulation no. 03/2002/CM/UEMOA.

  89. 89.

    Part III, Sect. 11.4.

  90. 90.

    See Part II, Dimension V: Sect. 9.4.

  91. 91.

    See on the cooperation mechanisms with national competition law structures Part III, Dimension IV: Sect. 12.4.6.

  92. 92.

    In this context, the Plan of Investigation in the AndeanC is a positive example. It is capable of balancing national and regional interests, because it is determined by national and regional competition authorities; see above Part II, Dimension IV: Sect. 8.2.

  93. 93.

    Geradin, A Legal and Economic Analysis of the Proposed Modernization of the Enforcement of EC Competition Law, 9/1 Colum. J. Eur. L. 1, 11 (2002).

  94. 94.

    The current chairman of the CARICOM Competition Commission, Kusha Haraksingh, does not see the necessity to reconcile national and regional decision-making. Statements made in an interview with the author conducted in Port-of-Spain, Trinidad and Tobago, 29 October 2012.

  95. 95.

    This is obviously not the case if the national and regional decisions completely contradict each other.

  96. 96.

    Geradin, A Legal and Economic Analysis of the Proposed Modernization of the Enforcement of EC Competition Law, 9/1 Colum. J. Eur. L. 1, 11 (2002).

  97. 97.

    See Article 3(1)1 of Regulation no. 1/2003/EC and the former judgement, ECJ, Judgment of the Court of 13 February 1969, Case 14-68, Walt Wilhelm and others v Bundeskartellamt, ECR 1, ECLI:EU:C:1969:4, para. 9.

  98. 98.

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

  99. 99.

    In the EU, according to Regulation 1/2003 member states are allowed to adopt stricter laws on unilateral anticompetitive agreements.

  100. 100.

    See the development of European competition law, in which the notification requirement was replaced by decentralized self-evaluation in the course of increased competition law culture.

  101. 101.

    According to Ehlermann the Commission’s monopoly to grant exemptions constituted a “natural” monopoly for its ability to reconcile several objectives of the EC Treaty, see Ehlermann, Implementation of EC Competition Law by National Anti-Trust Authorities, 17 ECLR 88, 95 (1996).

  102. 102.

    The WAEMU and the EU constitute such systems.

  103. 103.

    This is the case in the WAEMU, see Part II, Dimension V: Sect. 9.1. For more information see also Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, pp. 56f.

  104. 104.

    In a regional legal system of direct effect and application, in which regional competition law provides for direct nullity of anticompetitive practices, centralized decision-making only applies to the competence to grant exemptions or issue negative clearance rulings.

  105. 105.

    For example, a judge has to autonomously estimate the amount of compensation or decide on the intensity of the specific criminal sanction.

  106. 106.

    With regard to WAEMU see Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, p. 245.

  107. 107.

    See request for information in the WAEMU, the AndeanC and the CARICOM. For more information on enforcement procedures of regional competition law in the narrow sense, Part II, Dimension IV: Chap. 8.

  108. 108.

    Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, pp. 86ff.

  109. 109.

    Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, pp. 89ff.

  110. 110.

    Bakhoum, L’articulation du droit communautaire et des droits nationaux de la concurrence dans l’Union Economique et Monétaire Ouest Africaine, 2007, pp. 95f.

  111. 111.

    Ibid.

  112. 112.

    On the different requirements in Member States of the European Union, see Davies/Das, Private Enforcement of Commission Commitment Decisions, 29 Fordham Int’l. L.J. 917, 947ff. (2005).

  113. 113.

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

  114. 114.

    Part II, Dimension V: Sect. 9.3.

  115. 115.

    Davies/Das, Private Enforcement of Commission Commitment Decisions, 29 Fordham Int’l. L.J. 917, 947 (2005).

  116. 116.

    Temple Lang, EEC Competition Actions in Member States’ Courts, 7 Fordham Int’l. L.J. 389, 453 (1983).

  117. 117.

    On the role of national judges in private enforcement of regional competition law, see Part III, Sect. 11.8.2.

  118. 118.

    In the European Union, the role of national judges with regard to competition law enforcement was promoted from the early 1980s, Ehlermann, Implementation of EC Competition Law by National Anti-Trust Authorities, 17 ECLR 88, 88f. (1996).

  119. 119.

    Ehlermann states in this context: “Europeans are not as litigious as Americans: their traditional social and cultural attitudes may even be opposed to recourse to the judiciary.” Ehlermann, Implementation of EC Competition Law by National Anti-Trust Authorities, 17 ECLR 88, 89 (1996).

  120. 120.

    This was the case in the context of the ECN and Regulation 1/2003 in the European Union. See Wils, Ten Years of Regulation 1/2003, 4 J. Eur. Comp. L. & Practice 293, 296 (2013).

  121. 121.

    See Part II, Dimension IV: Sect. 8.2.1.3.

  122. 122.

    This is demonstrated by the different institutional designs and results of such mechanisms in the WAEMU, the AndeanC and the CARICOM, as well as in the EU. See above Part II, Dimension IV: Sect. 8.2.

  123. 123.

    This happened in the AndeanC, in which the Secretariat General treated the Informe of the Andean Committee on Defence of Free Competition only superficially. See above Part II, Dimension IV: Sect. 8.2.1.2.

  124. 124.

    Another difficulty with regard to insufficient representation within a competition cooperation body concerns the unequal distribution of investigatory assignments among member states. In this context, Andreas Mundt, the current president of the German competition authority since 2009, mentioned that in the framework of the ECN the German competition authority is called upon comparably often in order to conduct investigations. According to Mundt, this relates to its geographical position at the centre of the European Union. With an increase of intra-community trade, this unequal distribution of investigations assignments based on geographical location of states might also arise in the WAEMU and the AndeanC. In the CARICOM, due to its composition of islands, which requires trade to be conducted by plane or ship, this problem might be less relevant.

  125. 125.

    Cengiz, The European Competition Network, 2009, pp. 9, 10 <http://cadmus.eui.eu/bitstream/handle/1814/11067/MWP_2009_05.pdf?sequence=1> accessed 11 November 2018. For more information on cooperation mechanisms, see also Part II, Dimension IV: Sect. 8.2.

  126. 126.

    On the creation of vertical and horizontal cooperation via inter-governmental cooperation bodies, see Part II, Dimension IV: section “Creating Vertical and Horizontal Cooperation via Inter-Governmental Cooperation Bodies”.

  127. 127.

    On the overarching incentive of a common market for regional competition law enforcement, see Part III, Sect. 11.2.3.

  128. 128.

    Part II, Dimension I: Sect. 5.3.

  129. 129.

    Article 176(1) of the Revised Treaty Chaguaramas.

  130. 130.

    See on this aspect the Regional Judicial and Legal Service Commission (RJLSC) in the CARICOM, Part II, Dimension III: Sect. 7.1.1.2.

  131. 131.

    This is for example the case with regard to abuse of dominant position thresholds etc.

  132. 132.

    Yet it is only in combination with the principle of primacy of regional over national law that a regional legislative framework can create a convergent system of individuals’ rights protection in all member states within a RTA.

  133. 133.

    Drexl, in: Drexl, The Future of Transnational Antitrust, 2003, pp. 311, 334f.

  134. 134.

    Ibid.

  135. 135.

    While in the WAEMU, according to Article 88 of the Treaty of Dakar anticompetitive practices are deemed null and void by law, in the AndeanC, Article 4 of Decision 608 only determines that anticompetitive conduct shall be sanctioned and prohibited. In the CARICOM, Article 177(3) of the Revised Treaty sets out the obligation for member states that anticompetitive practices shall be null and void.

  136. 136.

    It is to be remembered that even in supranational systems with direct effect a regional Court of Justice will have to monitor adequate enactment of legal norms, such as directives that lack direct effect.

  137. 137.

    Consider in this regard the requirement to be granted special leave in the CARICOM, Part II, Dimension IV: Sect. 8.3.2.5.

  138. 138.

    Part III, Sect. 11.2.3.

  139. 139.

    The question with regard to prerogative competences to assign the competent entity is actually not only a question of underlying principles of regional competition law enforcement, but also relates to potential conflicts that might arise in the context of determining the existence of cross-border effect, as well as in the context of the actual conduct of a regional competition law investigation. For clarity reasons, the subject of prerogative powers is dealt with at the end under Dimension V, because it also reflects a general enforcement principle.

  140. 140.

    On the possibility to adopt a mandatory lead jurisdiction with the competence to assign the exclusive competence to deal with a case in global competition, see Budzinski, The Governance of Global Competition, 2008, pp. 203ff.

  141. 141.

    Article 176(5) of the Revised Treaty of Chaguaramas.

  142. 142.

    On the necessity to establish a national competition culture, see above Part III, Sect. 11.7.1.

  143. 143.

    In the WAEMU, regional competition law prevails over national legislation with a competition component.

  144. 144.

    See in this regard: Article 7 of the Treaty of Dakar in the WAEMU; Article 9 of the Revised Treaty of Chaguaramas in the CARICOM; the former Article 10(1) of the EC Treaty used to codify the principle of effectiveness in the European Union. Now, Article 4(3) TEU contains the principle of “sincere cooperation” between member states and the European Union. Articles 36 and 37 of Decision 608 entail specific loyalty tasks with regard to regional competition law enforcement in the AndeanC.

  145. 145.

    Part II, Dimension V: Sect. 9.2.4.

  146. 146.

    In this sense, the WAEMU, the AndeanC and the CARICOM competition law regimes embrace the harmonization of national competition policies as one of the main objectives.

  147. 147.

    See below Part III, Chap. 14.

  148. 148.

    See Drexl, Perspectives européennes sur la politique de la concurrence dans l’espace OHADA, XXV R.I.D.E. 281–304 (2011); Drexl, in: Drexl/Bakhoum/Fox/Gal/Gerber, Competition Policy and Regional Integration in Developing Countries, 2012, pp. 231–252.

Author information

Authors and Affiliations

  1. München, Germany

    Julia Molestina

Authors
  1. Julia Molestina
    View author publications

    You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

© 2019 Springer-Verlag GmbH Germany, part of Springer Nature

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Molestina, J. (2019). The Optimal Degree of Centralization or Decentralization: Recommendations for and Implications of Certain Institutional Designs. 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_12

Download citation

  • DOI: https://doi.org/10.1007/978-3-662-58525-2_12

  • Published:

  • Publisher Name: Springer, Berlin, Heidelberg

  • Print ISBN: 978-3-662-58524-5

  • Online ISBN: 978-3-662-58525-2

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation