Transcript שקופית 1 - Bar-Ilan University

MAIN LEGAL SUPPORT TO
COMPETITION
Customs
Art. 3(a) 10-17
Restricting
Arrangements
Art 81(85)
Governmental Aid
Art. 92-94
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Quotas
Art. 30-37
Dominant Position
Art. 82(86)
Tax Discrimination
Art. 95-99
ILLUSTRATIVE CASES
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
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Cartels & Monopoles
• Grunding-Consten
Territorial Protection
• Nintendo Case
• Check Point Case
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
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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
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Governmental aid
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Tax Discrimination
• Schul Case Import to
Holland from Monaco
of second hand yacht
MICROSOFT CASE
In 1993, Novell said that Microsoft was blocking its
competitors out of the market through anti-competitive
practices. The complaint centred on the license practices at
the time which required royalties from each computer sold by
a supplier of Microsoft's operating system, whether or not the
unit actually contained the Windows operating system.
Sun Microsystems joined the fray in 1998 when it complained
about the lack of disclosure of some of the interfaces to
Windows NT. The case widened even more when the EU
started to look into how streaming media technologies were
integrated with Windows.
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the EU reached a preliminary decision in the case in 2003 and
ordered the company to offer both a version of Windows without
Windows Media Player and the information necessary for
competing networking software to interact fully with Windows
desktops and servers. In March 2004,
the EU ordered Microsoft to pay €497 million ($613 million or
£381 million in addition to the previous penalties, which
included 120 days to divulge the server information and 90 days
to produce a version of Windows without Windows Media
Player.
The next month Microsoft released a paper containing scathing
commentary on the ruling including: "The commission is
seeking to make new law that will have an adverse impact on
intellectual property rights and the ability of dominant firms to
innovate." Microsoft paid the fine in full in July 2004.[
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Microsoft released the source code, but not the specifications, to
Windows Server 2003 service pack 1 to members of its Work
Group Server Protocol Program (WSPP) on the day of the original
deadline.
The EU said that it would begin to fine Microsoft €2 million
(US$3.04 million or £1.53 million) a day until it did so.
12 July 2006, the EU fined Microsoft for an additional €280.5
million (US$427.47 million), €1.5 million (US$2.29 million) per day
from 16 December 2005 to 20 June 2006. The EU threatened to
increase the fine to €3 million ($4.57 million) per day on 31 July
2006 if Microsoft did not comply by then.
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On 17 September 2007, Microsoft lost their appeal against the
European Commission's case. The €497 million fine was
upheld, as were the requirements regarding server
interoperability information and bundling of Media Player.
On 27 February 2008, the EU fined Microsoft an additional
€899 million (US$1.4 billion) for failure to comply with the
March 2004 antitrust decision.
his latest decision follows a prior €280.5 million fine for noncompliance, covering the period from June 21, 2006 until
October 21, 2007. On 9 May 2008 Microsoft lodged an appeal
in the European Court of First Instance seeking to overturn the
€899 million fine, officially stating that it intended to use the
action as a "constructive effort to seek clarity from the court".
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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:
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(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.
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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,
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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.
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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;
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(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.
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EU-ISRAEL ASSOCIATION
AGREEMENT
PRINCIPLES
• Progressive Liberalization
of Capital Movement
• Political Dialogue (I)
• Intensification of
• Expansion of Trade in
Cooperation in Science &
Goods (II) and Services
Technology
• Progressive Liberalization
• Encourage Regional
of Public Procurements
Cooperation
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• 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
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NORTH AMERICAN FREE
TRADE AGREEMENT
January 1994
OBJECTIVES
MOTIVATIONS
• Eliminates Barriers to
Trade
• Promote Conditions of
Fair Competition
• Increase Investment
Opportunities
• Provide Protection of
Intellectual Property
• GATT Dissatisfaction
Progress
• EU Expansion
• Attract Investments
• Promote International
Trade
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OBJECTIVES
a. eliminate barriers to trade in, and facilitate the cross-border
movement of goods and services between the territories of the
Parties;
b. promote conditions of fair competition in the free trade area;
c. increase substantially investment opportunities in the
territories of the Parties;
d. provide adequate and effective protection and enforcement of
intellectual property rights in each Party's territory;
e. create effective procedures for the implementation and
application of this Agreement, for its joint administration and
for the resolution of disputes; and
f.
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establish a framework for further trilateral, regional and
multilateral cooperation to expand and enhance the benefits of
this Agreement."
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.
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OPERATIONS
• Commission for Environment
• Commission for Cooperation
(Montreal)
• Commission for Labor
Cooperation( Dallas)
• North American Bank (San
Antonio)
• Working Groups
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CONTENT
• Trade In Agriculture
• Fifteen Years Transition
• Trade in Services,
Telecommunication, Finance
• Competition Policy
• Intellectual Property
• Rules of Origin
North American Free Trade Agreement
PART ONE: GENERAL PART
Chapter One: Objectives
Chapter Two: General Definitions
PART TWO: TRADE IN GOODS
Chapter Three: National Treatment and Market Access for
Goods
Annex 300-A: Trade and Investment in the Automotive
Sector
Annex 300-B: Textile and Apparel Goods
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Chapter Four: Rules of Origin
Chapter Five: Customs Procedures
Chapter Six: Energy and Basic Petrochemicals
Chapter Seven: Agriculture and Sanitary and
Phytosanitary Measures
Chapter Eight: Emergency Action
PART THREE: TECHNICAL BARRIERS TO TRADE
Chapter Nine: Standards-Related Measures
PART FOUR: GOVERNMENT PROCUREMENT
Chapter Ten: Government Procurement
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Chapter Four: Rules of Origin
Chapter Five: Customs Procedures
Chapter Six: Energy and Basic Petrochemicals
Chapter Seven: Agriculture and Sanitary and
Phytosanitary Measures
Chapter Eight: Emergency Action
PART THREE: TECHNICAL BARRIERS TO TRADE
Chapter Nine: Standards-Related Measures
PART FOUR: GOVERNMENT PROCUREMENT
Chapter Ten: Government Procurement
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PART FIVE: INVESTMENT, SERVICES AND RELATED
MATTERS
Chapter Eleven: Investment
Chapter Twelve: Cross-Border Trade in Services
Chapter Thirteen: Telecommunications
Chapter Fourteen: Financial Services
Chapter Fifteen: Competition Policy, Monopolies and
State Enterprises
Chapter Sixteen: Temporary Entry for Business Persons
PART SIX: INTELLECTUAL PROPERTY
Chapter Seventeen: Intellectual Property
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PART SEVEN: ADMINISTRATIVE AND
INSTITUTIONAL PROVISIONS
Chapter Eighteen: Publication, Notification and
Administration of Laws
Chapter Nineteen: Review and Dispute Settlement
in Antidumping and Countervailing Duty Matters
Chapter Twenty: Institutional Arrangements and
Dispute Settlement Procedures
PART EIGHT: OTHER PROVISIONS
Chapter Twenty-One: Exceptions
Chapter Twenty-Two: Final Provisions
Annex 401: Specific Rules of Origin
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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.
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NAFTA RESULTS
CANADA
• 16% Employment
growth
• 109% exports
growth (29% to
others)
• Exports to Mexico
doubled
•127% Investment
increase to US
•Six times increase to
Mexico
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USA
• Export growth
doubled(59%
others)
• 12% Employment
growth
MEXICO
• Export growth
238%
• 28% Employment
growth
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 preNAFTA 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.
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Source: NAFTA AT SEVEN Its impact on workers in all three nations Economic Policy
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InstituteApril
2001 | EPI Briefing
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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)
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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.
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Agreement on Agriculture
Agreement on Sanitary and Phytosanitary Measures
Decision on Measures Concerning the Possible Negative Effects of the Reform
Programme on Least-Developed and Net Food-Importing Developing Countries
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Anti-Dumping)
Customs Valuation)
Preshipment Inspection
Agreement on Rules of Origin
Agreement on Import Licensing Procedures
Agreement on Subsidies and Countervailing Measures
Agreement on Safeguards
General Agreement on Trade in Services
Agreement on Trade-Related Aspects of Intellectual Property Rights, Including
Trade in Counterfeit Goods
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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)
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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.
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TABLE OF CASES CITED IN THIS REPORT
Short Title
Brazil –
Aircraft
(Article 22.6 –
Brazil)
Full Case Title and Citation
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 –
Decision by the Arbitrator, Canada – Export
Aircraft Credits Credits and Loan Guarantees for Regional
and Guarantees Aircraft – Recourse to Arbitration by
Canada under Article 22.6 of the DSU and
(Article 22.6 – Article 411 of the SCM Agreement,
WT/DS222/ARB, 17 February 2003
Canada)
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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
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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
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EU-China Agreement June 10th, 2005
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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
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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
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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
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Market Group
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
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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.
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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
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GENERAL RULES OF ORIGIN
1.
2.
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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
•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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