Provisions on Trade in Services in Trade and Integration Agreements in the Western Hemisphere
Part I: Sub-regional Trade and Integration Agreements
XI. Monopolies and Anti-competitive Trade Practices
PART II, Article VIII - Monopolies and Exclusive Service Suppliers
Each Member shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Member's obligations under Article II (MFN Treatment) and specific commitments.
The Council for Trade in Services may, at the request of a Member which has a reason to believe that a monopoly supplier of a service of any other Member is acting in a manner inconsistent with this Member's specific commitments or with paragraph above, request the Member establishing, maintaining or authorizing such supplier to provide specific information concerning the relevant operations.
If, after the entry into force of the Agreement Establishing the WTO, a Member grants monopoly rights regarding the supply of a service covered by its specific commitments, that Member shall make such notification to the Council for Trade in Services no later than three months before the intended implementation of the grant of monopoly rights.
The provisions of this Article shall also apply to cases of exclusive service suppliers.
Chapter Fifteen: Competition Policy, Monopolies and State Enterprises
Article 1502: Monopolies and State Enterprises
Where a Party intends to designate a monopoly and the designation may affect the interests of persons of another Party, the Party shall: (a) wherever possible, provide prior written notification to the other Party of designation; and (b) endeavor to introduce at the time of the designation such conditions on the operation of the monopoly as will minimize or eliminate any nullification or impairment of benefits in the sense of Annex 2004 (Nullification and Impairment).
Each Party shall ensure, through regulatory control, administrative supervision or the application of other measures, that any privately-owned monopoly that it designates and any government monopoly that it maintains or designates:
(a) acts in a manner that is not inconsistent with the Party's obligations under this Agreement;
(b) except to comply with any terms of its designation that are not inconsistent with subparagraph (c) or (d), acts solely in accordance with commercial considerations in the purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale;
(c) provides non-discriminatory treatment to investments of investors, to goods and to service providers of another Party in its purchase or sale of the monopoly good or service in the relevant market; and
(d) does not use its monopoly position to engage, either directly or indirectly, in anticompetitive practices in a non-monopolized market in its territory that adversely affect an investment of an investor of another Party, including the discriminatory provision of the monopoly good or service, cross-subsidization or predatory conduct.
The paragraph above does not apply to procurement by governmental agencies of goods or services for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the provision of services for commercial sale.
Group of Three
Chapter XVI: Policy Regarding State Enterprises
Article 16-02: Monopolies and State Enterprises
Each Party shall ensure that its State enterprises accord non-discriminatory treatment in its territory to the natural or legal persons of the other Parties in the sale of goods and the provision of services for similar commercial transactions.
Each Party undertakes to ensure that its government monopolies and its State enterprise:
(a) act solely in accordance with commercial considerations in the purchase or sale of the monopoly good or service in the relevant market in the territory of that Party, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale; and
(b) do not use their monopoly position in their territory to engage in anti-competitive practices in a non-monopolized market that could adversely affect persons of the other Party.
The paragraph above should not apply to procurement by government monopolies or State enterprises of goods or services for governmental purposes, and: (a) not with a view to commercial resale; (b) not with a view to use in the production of goods for commercial sale; or (c) not with a view to use in the provision of services for commercial sale.
With regard to sales price of a good or service, paragraph 2(a) shall apply only to the sale by government monopolies and State enterprise of: (a) goods or services to persons engaged in the production of industrial goods; (b) services to persons engaged in commercial resale; or (c) services to enterprises that produce industrial goods.
The provisions of paragraph 2(a) shall not apply to those activities of a government monopoly that are carried out in compliance with the terms of its designation and with the principles established in paragraphs 1 and 2(b).
Chapter II: Trade Regime
Items which, by virtue of the domestic legislation of the Contracting Parties, constitute State monopolies on the date of entry into force of the present Treaty, shall remain subject to the relevant legislation of each country and, if applicable, to the provisions of Annex A of the present Treaty.
Should new monopolies be created or the regime of existing monopolies be changed, the Parties shall enter into consultations for the purpose of placing Central American trade in the items concerned under a special regime.
Annex, Chapter III: Trade Liberalization
Article 30: Restrictive Business Practices
1. Member States recognize that the following practices are incompatible with this Annex in so far as they frustrate the benefits expected from such removal or absence of duties and quantitative restrictions as is required by this Annex--
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices between enterprises which have as their object or result the prevention, restriction distortion of competition within the Common Market;
(b) actions by which one or more enterprises taken unfair advantage of a dominant position, within the Common Market or a substantial part of it.
2. If any practice of the kind described in paragraph 1 of this Article is referred to the Council in accordance with Article 11 of this Annex the Council may, in any recommendation in accordance with paragraph 3 or in any decision in accordance with paragraph 4 of that Article, make provision for publication of a report on the circumstances of the matter.
3. (a) In the light of experience, the Council shall, as soon as practicable, consider whether further or different provisions are necessary to deal with the effect of restrictive business practices or dominant enterprises on the trade within the Common Market.
(b) Such review shall include consideration of the following matters--
(i) specification of restrictive business practices or dominant enterprises with which the Council should be concerned;
(ii) methods of securing information about restrictive business practices or dominant enterprises;
(iii) procedures for investigation;
(iv) whether the right to initiate inquiries should be conferred on the Council. The Council may decide to make the provisions found necessary as a result of the review envisaged in sub-paragraphs (a) and (b) of this paragraph.
4. Member States undertake to introduce as soon as practicable uniform legislation for the control of restrictive practices by business enterprises giving particular attention to the practices referred to in paragraph I of this Article.
Chapter VI: Treatment of Complementary Matters
Article 17: Until communitary standards in the matter are approved, each Member Country should adopt whatever measures necessary to prevent, avoid, and sanction the practices which distort competition in trade in services in its own market, including measures that are necessary to ensure that service providers established in their territories which exhibit a dominant position in the market, do not abuse of that position.
Article 18: The Member Countries shall endeavor to ensure that the measures of promotion and development applied to the area of services do not distort the conditions of competition inside the subregional market, and shall adopt communitary standards with respect to incentives applied to the trade in services.
Central America/Dominican Republic
Chapter X: Trade in Services. Article 10.19: Anticompetitive business practices
With respect to anticompetitive business practices which adversely affect competition and-or trade in services with or within the Parties, the provisions on defense of competition provided for in each Party shall be applied, as well as those rules on competition that have been established through international conventions.
Part II: Obligations and general disciplines
Article XII: Defense of Competition
The provisions under the Protocol of the Defense of Competition in Mercosur shall be applied with respect to actions taken by service providers of public or private law or other entities whilst providing services, whose purpose is to influence or bring influence to bear upon competition in the framework of the MERCOSUR and consequently to influence trade between the States Parties.
Chapter V: Anticompetitive practices in international trade - dumping and subsidies - and restrictive anticompetitive practices
Article 17. The Contracting Parties shall promote the necessary actions, as soon as possible, in order to establish normative guidelines based on internationally accepted provisions and practices, which constitute the adequate reference in order to discipline eventual practices which restrict competition.
Chapter VI: Defense of Competition and the Consumer
Article 18: the Contracting Parties shall promote actions to establish, as soon as possible, a normative guideline based on internationally accepted provisions and practices, which constitute the adequate reference to discipline eventual anticompetitive practices.