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MAIN LEGAL SUPPORT TO COMPETITION

MAIN LEGAL SUPPORT TO COMPETITION. Customers & Quotas National type approval regulation-British safety and technical standards. 1981 Cassis de Dijon Rewe Zentral against German Federal Monopoly Administration Asterix & Cleopatre Art.36. Cartels & Monopoles

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MAIN LEGAL SUPPORT TO COMPETITION

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  1. MAIN LEGAL SUPPORT TO COMPETITION

  2. Customers & Quotas National type approval regulation-British safety and technical standards. 1981 Cassis de Dijon Rewe Zentral against German Federal Monopoly Administration Asterix & Cleopatre Art.36 Cartels & Monopoles Grunding-Consten Territorial Protection Nintendo Case Check Point Case ILLUSTRATIVE CASES

  3. WANADOO-DOMINANT POSITION • Wanadoo owned 72% by France Telecom • ADSL prices below equivalent to variable costs • From January 2001 to September 2003 market share rose from 46% to 72% • Fine of 10.35 million Euro

  4. CHECK POINT-DISTRIBUTION PRACTICES • Exclusionary supply practice with its distributors • Check Point had told to distributors and resellers not to sell Stonesoft’s competing firewall • Check Point will confirm to its distributors their right independently to choose to handle products of other manufacturers

  5. Governmental aid Tax Discrimination Schul Case Import to Holland from Monaco of second hand yacht

  6. Article 81 (ex Article 85)   1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

  7. (a) directly or indirectly fix purchase or selling prices or any other trading conditions;  (b) limit or control production, markets, technical development, or investment;  (c) share markets or sources of supply;  (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

  8. 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.  3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:  — any agreement or category of agreements between undertakings;  — any decision or category of decisions by associations of undertakings;  — any concerted practice or category of concerted practices,

  9. which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:  (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;  (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

  10. Article 82 (ex Article 86)  Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States.  Such abuse may, in particular, consist in:  (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;  (b) limiting production, markets or technical development to the prejudice of consumers;

  11. (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

  12. EU-ISRAEL ASSOCIATION AGREEMENT • PRINCIPLES • Political Dialogue (I) • Expansion of Trade in Goods (II) and Services • Progressive Liberalization of Public Procurements • Progressive Liberalization of Capital Movement • Intensification of Cooperation in Science & Technology • Encourage Regional Cooperation

  13. Title III: Right of Establishment & Supply of Services • Title IV: Capital Movement, Payments, Public Procurement, Competition & Intellectual Property • Title V: Scientific & Technological Cooperation • Title VI: Economic Cooperation • Title VII: Cooperation on Audiovisual & Cultural Matter, Information & Communication • Title VIII: Social Matters

  14. NORTH AMERICAN FREE TRADE AGREEMENT January 1994 • OBJECTIVES • Eliminates Barriers to Trade • Promote Conditions of Fair Competition • Increase Investment Opportunities • Provide Protection of Intellectual Property • MOTIVATIONS • GATT Dissatisfaction Progress • EU Expansion • Attract Investments • Promote International Trade

  15. OBJECTIVES • eliminate barriers to trade in, and facilitate the cross-border movement of goods and services between the territories of the Parties; • promote conditions of fair competition in the free trade area; • increase substantially investment opportunities in the territories of the Parties; • provide adequate and effective protection and enforcement of intellectual property rights in each Party's territory; • create effective procedures for the implementation and application of this Agreement, for its joint administration and for the resolution of disputes; and • establish a framework for further trilateral, regional and multilateral cooperation to expand and enhance the benefits of this Agreement."

  16. Under the North American Free Trade Agreement (NAFTA), tariffs on virtually all originating goods traded between Canada and Mexico will be eliminated by 2003. Tariffs on qualifying goods traded between Canada and the United States became duty free on January 1, 1998.

  17. OPERATIONS • Commission for Environment • Commission for Cooperation • (Montreal) • Commission for Labor Cooperation( Dallas) • North American Bank (San Antonio) • Working Groups • CONTENT • Trade In Agriculture • Fifteen Years Transition • Trade in Services, Telecommunication, Finance • Competition Policy • Intellectual Property • Rules of Origin

  18. North American Free Trade Agreement PART ONE: GENERAL PART Chapter One: ObjectivesChapter Two: General DefinitionsPART TWO: TRADE IN GOODS Chapter Three:National Treatment and Market Access for GoodsAnnex 300-A: Trade and Investment in the Automotive SectorAnnex 300-B: Textile and Apparel Goods

  19. Chapter Four:Rules of OriginChapter Five: Customs ProceduresChapter Six: Energy and Basic PetrochemicalsChapter Seven: Agriculture and Sanitary and Phytosanitary MeasuresChapter Eight: Emergency ActionPART THREE: TECHNICAL BARRIERS TO TRADE Chapter Nine: Standards-Related MeasuresPART FOUR: GOVERNMENT PROCUREMENT Chapter Ten:Government Procurement

  20. Chapter Four:Rules of OriginChapter Five: Customs ProceduresChapter Six: Energy and Basic PetrochemicalsChapter Seven: Agriculture and Sanitary and Phytosanitary MeasuresChapter Eight: Emergency ActionPART THREE: TECHNICAL BARRIERS TO TRADE Chapter Nine: Standards-Related MeasuresPART FOUR: GOVERNMENT PROCUREMENT Chapter Ten:Government Procurement

  21. PART FIVE: INVESTMENT, SERVICES AND RELATED MATTERS Chapter Eleven: InvestmentChapter Twelve: Cross-Border Trade in ServicesChapter Thirteen: TelecommunicationsChapter Fourteen:Financial ServicesChapter Fifteen: Competition Policy, Monopolies and State EnterprisesChapter Sixteen: Temporary Entry for Business Persons PART SIX: INTELLECTUAL PROPERTY Chapter Seventeen: Intellectual Property

  22. PART SEVEN: ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS Chapter Eighteen: Publication, Notification and Administration of LawsChapter Nineteen: Review and Dispute Settlement in Antidumping and Countervailing Duty MattersChapter Twenty: Institutional Arrangements and Dispute Settlement ProceduresPART EIGHT: OTHER PROVISIONS Chapter Twenty-One: ExceptionsChapter Twenty-Two:Final ProvisionsAnnex 401: Specific Rules of Origin

  23. RVC= regional value content TV ­ VNM--------------- TV TV is the transaction value of the good adjusted to a F.O.B. basis; and VNM is the value of non-originating materials used by the producer in the production of the good.

  24. NAFTA RESULTS

  25. NAFTA has enabled both Canada and Mexico to increase their exports to the United States: Canadian manufacturers now send more than half their production to the U.S., while Mexico’s share of the U.S. import market has almost doubled from 6.9% in pre-NAFTA 1993 to 11.6% in 2002. Today, 86.6% of total merchandise exports go to our NAFTA partners. And close to 2.3 million jobs have been created in Canada since 1994, representing an increase of 17.5% over pre-NAFTA employment levels.

  26. Source: NAFTA AT SEVEN Its impact on workers in all three nations Economic Policy InstituteApril 2001 | EPI Briefing

  27. WORLD TRADE ORGANIZATION • General Agreement on Tariffs & Trade (GATT) • From Geneva(1947) – 23 Countries to • Uruguay Round (86-94) 120 Countries • Constrain Governments from Imposing or Continuing a Variety of Measures that Restrain or Distort International Trade • Marrakech 15 April 1994 - WTO • China 2001(143 Members)

  28. The new rules and commitments apply to: • market access— various trade restrictions confronting imports • domestic support— subsidies and other programmes, including those that raise or guarantee farmgate prices and farmers’ incomes • export subsidies and other methods used to make exports artificially competitive.

  29. Agreement on AgricultureAgreement on Sanitary and Phytosanitary MeasuresDecision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing CountriesAgreement on Textiles and ClothingAgreement on Technical Barriers to TradeAgreement on Trade-Related Investment MeasuresAnti-Dumping)Customs Valuation)Preshipment InspectionAgreement on Rules of OriginAgreement on Import Licensing ProceduresAgreement on Subsidies and Countervailing MeasuresAgreement on SafeguardsGeneral Agreement on Trade in ServicesAgreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods

  30. MAIN RESULTS • Agriculture Domestic Support less 20% (developing 13.3%) in 6 Years; Subvention to Exports 36%-21% • NTB’s Converted to Tariffs & cut by 36% • Textiles: MFA quota dismantled 1995-2005, tariffs reduced • Telecommunication services 69 Countries (Feb 1997) • Information Technology 49 Countries (Feb 1997) • Financial Services 70 Countries (Feb 1997)

  31. The WTO holds its main ministerial conferences roughly every two years, and they are the WTO's highest authority. The first ministerial was held in Singapore in December 1996. The second was held in Geneva in May 1998. Seattle hosted the third ministerial conference between November and December 1999. Doha hosted the last conference in November 2001. 2003's WTO ministerial conference will take place in Cancun, Mexico in September.

  32. Short Title Full Case Title and Citation Brazil – Aircraft (Article 22.6 – Brazil) Decision by the Arbitrators, Brazil – Export Financing Programme for Aircraft – Recourse to Arbitration by Brazil under Article 22.6 of the DSU and Article 411 of the  SCM Agreement, WT/DS46/ARB, 28 August 2000 Canada – Aircraft Credits and Guarantees (Article 22.6 – Canada) Decision by the Arbitrator, Canada – Export Credits and Loan Guarantees for Regional Aircraft – Recourse to Arbitration by Canada under Article 22.6 of the DSU and Article 411 of the SCM Agreement, WT/DS222/ARB, 17 February 2003 TABLE OF CASES CITED IN THIS REPORT

  33. EC – Bananas III (Ecuador) (Article 22.6 – EC) Decision by the Arbitrators, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2243 EC – Bananas III (US) (Article 22.6 – EC) Decision by the Arbitrators, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB, 9 April 1999, DSR 1999:II, 725

  34. EC – Hormones (US) (Article 22.6 – EC) Decision by the Arbitrators, European Communities – Measures Concerning Meat and Meat Products (Hormones) – Original Complaint by the United States – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS26/ARB, 12 July 1999, DSR 1999:III, 1105 EC – Hormones (Canada) (Article 22.6 – EC) Decision by the Arbitrators, European Communities – Measures Concerning Meat and Meat Products (Hormones) – Original Complaint by Canada – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS48/ARB, 12 July 1999, DSR 1999:III, 1135

  35. EU-China Agreement June 10th, 2005

  36. MERCOSUR Treaty Establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay http://www.sice.oas.org/trade/mrcsr/mrcsrtoc.asp

  37. Chapter I: Purposes, Principles, and Instruments Chapter II: Organizational Structure Chapter III: Period of Application Chapter IV: Accession Chapter V: Denunciation Chapter VI: General Provisions

  38. AnnexesAnnex I: Trade Liberalization Programme Annex II: General Rules of Origin Chapter I: General Rules for Classification of Origin Chapter II: Declaration, Certification, and Verification Annex III: Settlement of Disputes Annex IV: Safeguard Clauses Annex V: Working Groups of the Common Market Group

  39. The States Parties hereby decide to establish a common market, which shall be in place by 31 December 1994 and shall be called the "common market of the southern cone" (MERCOSUR). The free movement of goods, services and factors of production between countries through, inter alia, the elimination of customs duties and non-tariff restrictions on the movement of goods, and any other equivalent measures; The establishment of a common external tariff and the adoption of a common trade policy in relation to third States or groups of States, and the co-ordination of positions in regional and international economic and commercial forums

  40. ORGANIZATION • The Council shall be the highest organ of the common market, with responsibility for its political leadership and for decision-making to ensure compliance with the objectives and time-limits set for the final establishment of the common market. • The council shall consist of the Ministers for Foreign Affairs and the Ministers of the Economy of the States Parties.

  41. The Common Market Group shall be the executive organ of the common market and shall be co-ordinated by the Ministries of Foreign Affairs. The Common Market Group shall have powers of initiative. Its duties shall be the following: - to monitor compliance with the Treaty; - to take the necessary steps to enforce decisions adopted by the Council; - to propose specific measures for applying the trade liberalization programme, co-ordinating macroeconomic policies and negotiating agreements with third parties; - to draw up programmes of work to ensure progress towards the formation of the common market

  42. GENERAL RULES OF ORIGIN • Products manufactured wholly in the territory of any of the Parties, when only materials originating in the States Parties are used in their manufacture; • (b) Products included in the chapters or headings of the tariff nomenclature of the Latin Arnerican Integration Association referred to in Annex 1 of resolution 78 of the Committee of Representatives of that Association, simply by virtue of the fact that they are produced in their respective territories

  43. Products in whose manufacture materials not originating in the States Parties are used, when such products are changed by a process carried out in the territory of one of the States Parties which results in their reclassification in the tariff nomenclature of the Latin American Integration Association under a heading different from that of such materials, except in cases where the States Parties determine that the requirement of Article 2 of this Annex must also be met. • In cases where the requirement of Article 1 (c) cannot be met because the process carried out does not involve a change in nomenclature heading, it shall suffice that the c.i.f. value of the third country materials at the port of destination or the maritime port does not exceed 50 per cent of the f.o.b. export value of the goods in question

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