WORLD TRADE
ORGANIZATIONWT/WGTCP/W/152
25 September 2000
(00-3859)
Working Group on the Interaction
between Trade and Competition PolicyOriginal:  English
COMMUNICATION FROM THE EUROPEAN COMMUNITY
AND ITS MEMBER STATES
The following communication, dated 21 September 2000, has been received from the
Permanent Delegation of the European Commission with the request that it be circulated to Members.
_______________
A Multilateral Framework Agreement on Competition Policy
At the last meeting of the Working Group, many delegations considered that it would be
useful to engage in a more specific consideration of the possible elements of a multilateral agreement
on competition policy.  In particular, it was noted that a more concrete elaboration of what was meantby core principles of competition policy and cooperation modalities would help all delegations to
better identify what benefits could be obtained from a possible WTO agreement on competition
policy.
The European Community and its member States wish - in this submission - to share their
views about the possible elements of a WTO framework agreement on competition policy.  In doing
so, we wish to stress two points:
− the decision on whether to launch negotiations on competition is essentially political in
nature, and as such, does not correspond to this Working Group, whose mandate is
exploratory and analytical;
− the elements of a possible future WTO agreement on competition could only be determined as
a result of multilateral negotiations and, on the basis of input from all WTO Members.  Theelements mentioned in this paper are, therefore, no more than our current ideas about the
possible architecture of a WTO competition agreement.  We wish moreover to acknowledgethat our thinking on many of these issues is influenced by the contributions made by many
countries - both developed and developing - to substantive discussions in this Working
Group.
The present submission discusses the reasons for, the structure and the possible elements of a
binding WTO framework agreement on competition policy.  It is suggested that a realistic approach
would be for such an agreement to focus on core principles of competition law and policy, basic
cooperation modalities and support for the reinforcement of institutional capacities in developing
countries.WT/WGTCP/W/152
Page 2
A. THE MAIN ARGUMENTS IN FAVOUR OF A MULTILATERAL FRAMEWORK AGREEMENT
In previous submissions, as well as during the debates that have taken place within the
Working Group, the European Community and its member States have repeatedly argued in favour of
negotiating a multilateral framework agreement on competition policy within the WTO.  It is,
however, useful to summarize here the main reasons for and advantages of developing such amultilateral approach.
The process of globalisation entails the risk that anti-competitive practices by business extend
beyond national borders.  Such practices are likely to reduce the benefits arising from trade and
investment liberalisation, as well as from regulatory reforms.  There are roughly three types of anti-
competitive practices with an international dimension:
− anticompetitive practices with a similar impact on several markets and, in some cases, on
world markets: the clearest example is provided by international cartels.  Such agreements
typically operate through the fixing of prices and/or quantities and an allocation of markets
among a few multinational enterprises.  The importance of such cases of antitrust
enforcement has substantially increased in recent years1.  International cartels may have a
particular incidence on the trade of developing countries which - in the absence of improved
international cooperation - may have difficulties in applying their domestic law to such
practices.
− anti-competitive practices that affect market access: import cartels, exclusionary abuses of a
dominant position (in some cases by recently privatised firms), certain forms of vertical
agreements and anticompetitive distribution practices are typical cases of this type.  While the
effect of such practices may be felt in a single market, they are a matter of concern for both
the authorities in the importing and exporting countries.  At the same time under generaljurisdiction principles, only the importing country would normally be in a position to apply its
competition law;
− anti-competitive practices whose effect is primarily in a different market from that in which it
was conceived: typical examples here are export cartels.  More broadly, this category should
include instances in which a Multinational Enterprise abuses a dominant position or otherwise
engages in an anti-competitive practice, particularly when such practise is implemented in the
market of a developing country.  As noted by several developing country delegations,
cooperation may be particularly necessary in such cases in view of difficulties in obtaining
information and limited bargaining power of the authorities in the host country.
In order to address such anti-competitive practices effectively, there is a need both for the
adoption and vigorous enforcement of a domestic competition policy and for enhanced international
cooperation, which includes a bilateral, regional and multilateral dimension.  The establishment of a
domestic competition authority, whose enforcement capacity could be progressively reinforced,
remains the basic cornerstone, in the absence of which a country would not be in a position to address
anti-competitive practices with an impact on its market, regardless of whether these are domestic or
international in nature.  It is significant, in this respect that more than 80 countries - representing 86%of world trade – have adopted a competition law and that 20 additional countries are in the process of
drafting such a law. 60% of these laws were introduced since 1990, primarily by developing and
                                                     
1 It is, for instance, estimated that 25% of criminal antitrust cases pursued by the US DOJ since 1990
were international in scope.  International cartel cases affected firms located in more than 20 countries.According to a recent OECD Report ("Hard Core Cartel s", OECD 2000), recently exposed cartels have affected
over US$ 10 billion in US commerce, which implies gl obal overcharges by those cartels in the billions of
dollars.WT/WGTCP/W/152
Page 3
transition countries.  For such countries the introduction of competition policies is seen as a necessary
complement to the restructuring of their economies, as  well as a means to better integrate them in the
emerging world markets and to achieve higher growth rates.
Currently the competition concerns raised by the type of cases mentioned above are dealt with
by enforcement agencies around the world either on a unilateral basis or within the framework ofbilateral or regional cooperation agreements.  While all such initiatives are valuable - and should
continue in the future - they do not provide a coherent and adequate response to all problems.  The
value and limitations of current approaches can be summarized as follows:
− bilateral agreements have proved to be particularly useful in fostering close enforcement
cooperation among competition authorities involved in a large number of transactions of
mutual interest.  Their number is, however, very limited.  It is difficult to envisage a situation
in which bilateral agreements could develop to promote cooperation among the more than 80
competition authorities, or even a significant number thereof.  The costs of administering sucha complex network would be prohibitive for a ll competition authorities.  Therefore, if
cooperation is to develop exclusively at the bilateral level, the interests of competition
authorities in developing countries or in small economies are likely to be neglected;
− cooperation on competition issues, at the regional level, has large potentials.  In a number of
cases, competition institutions have been established or are being considered at the regional
level.  (This is the case of the EC, but also - according to different models - of CARICOM,
COMESA and MERCOSUR.).  It is obvious, however, that competition cases of an
international dimension are by no means confined to countries which are parties to regional
agreements.  Even cooperation on capacity building is likely to be more effective if it can
draw from experiences of countries from different regions and levels of development;
− significant technical assistance on competition issues is being provided by international
organizations – UNCTAD, World Bank, OECD – as well as by bilateral donors.  However,
there are serious limitations about the way in which technical assistance is currently provided.
Initiatives often develop on an ad hoc basis, which can result in duplication of efforts.  There
is a lack of consistent and continuous support to countries which require assistance atdifferent stages in the development of a competition law regime (i.e. from the drafting of a
law to the setting up of competition institutions and the progressive building up of capacities
to deal with more complex cases).  Cooperation in the competition policy field is only just
beginning to be recognised as a development priority.  In the absence of an appropriate
institutional framework, it is difficult to gain the benefit from the synergies between technicalassistance and other forms of cooperation in the competition field (i.e. surveillance and
exchange of experiences; case-specific cooperation).
On a more general systemic level, multilatera l commitments in the competition field would
reinforce the domestic role of competition authorities, which in many countries lack influence and
clout.  It would also greatly contribute to the spread of a "competition culture".  It is worth noting that
this is an argument often made by competition authorities in developing countries and, indeed, also ineconomies in transition and several OECD members.
Cooperation is equally essential. Among its key functions are:
− the facilitation of consultations and exchanges of information among competition authorities
in order to better address anti-competitive practices of common concern;WT/WGTCP/W/152
Page 4
− the management of jurisdictional conflicts (or trade conflicts) through consultations and the
application of comity principles;
− the reinforcement of the capacity of newly established (or small) competition authorities both
through general technical assistance and enforcement cooperation, and
− the reduction of unnecessary costs to international business transactions through better co-
ordination of investigations and remedies.
The EC is therefore convinced that a multila teral approach is essential to tackle the
competition policy challenges raised by globalisation in an effective, coherent and balanced manner.
A multilateral approach would tend to ensure that:
− the needs for cooperation of countries at all levels of development would be addressed;
− a balanced consideration would be given to all forms of anti-competitive practices with an
international dimension, and
− effective synergies can be developed among different modalities of cooperation. Bilateral and
regional cooperation would, of course, continue to play a role and be complementary to a
multilateral agreement.
The negotiation of a multilateral framework agreement should be based on the common
interest - and respond to the needs - of the broad WTO Membership.  In this connection, we consider
that such an agreement could focus on three widely shared essential objectives:
− reinforce and support the process of trade and investment liberalisation through commitments
by countries to transparent and non-discriminatory competition policies;
− enhance the capacities of all countries to address anti-competitive practices of an international
dimension through modalities for international cooperation, and
− support the progressive reinforcement of competition institutions in developing countries.
B. POSSIBLE ELEMENTS FOR A MULTILATERAL FRAMEWORK AGREEMENT BASED ON CORE
PRINCIPLES , COOPERATION AND SUPPORT FOR DEVELOPING COUNTRIES
WTO negotiations on competition should be realistic and respond to the three essential
objectives mentioned above.  This can be best achieved through focussing negotiations on three key
issues:
− core principles on domestic competition law and policy;
− cooperation modalities, including both case-specific cooperation and more general exchanges
of experiences, and
− support for the reinforcement of competition inst itutions in developing countries, including
through a more coherent and enhanced approach to technical assistance for capacity building.
A basic framework agreement is not meant to provide a "solution" to all the issues that could
arise from the internationalisation of competition policies.  This would clearly be a case in which the
best would be the enemy of the good.  It should, however, establish a solid basis for multilateral
cooperation on competition policies.  Once such a framework agreement has been established, aWT/WGTCP/W/152
Page 5
Competition Policy Committee would provide a forum for examining whether greater convergence
can be promoted on other competition policy questions of importance for the trading system.
A framework agreement would not therefore entail a harmonisation of domestic competition
laws.  Indeed, such a framework is fully compatible with respect to differences in national
competition regimes.  It is worth noting, however, that the diversity of national competition laws -
while important - should not be exaggerated.  At no point in time has there been greater convergence
about the key elements of competition laws and policies in a global economy.  If one considers the
nearly 100 competition law regimes, it becomes evident that, despite differences on substantive
provisions and institutional structures, there is very large convergence inter alia on the following:
− the need to treat "hard-core" cartels as the most serious breach of domestic competition law;
− the importance, despite differences in institutional settings, of the principles of transparency
and non-discrimination;
− the need to define narrowly sectoral exclusions from competition laws.
− The importance of the advocacy role of competition authorities;
− the basic principles of national jurisdiction in relation to anti-competitive practices of an
international dimension; and
− the importance of international cooperation and the basic principles which should guide such
cooperation.
All the above elements show that there is a solid basis on which to build a multilateral
framework agreement.  As previously noted, the content of such a multilateral agreement can only be
determined as a result of negotiations and on the basis of inputs from all WTO Members.  What
follows are some broad ideas to assist discussion of what could be possible key elements of such anagreement:
(1) Core principles of Competition Law and Policy
Agreement on core principles would contribute towards reinforcing the role of competition
authorities and establishing mutual confidence for reinforced international cooperation.  Coreprinciples would relate to the domestic legislative framework.  An approach based on core principles
does not imply harmonisation and can take into account differences in national legal systems and
institutional capacities.  Moreover, such principles can be defined in a manner which reflects the need
for progressivity and flexibility as regards the commitments assumed by developing countries, and in
particular the least developed among them.
Core principles could be largely based on transparency and non-discrimination, which are
both central to the multilateral trading system and to domestic competition law regimes.  Without
aiming at producing an exhaustive blueprint, core principles could include the following:
(a) Agreement to have a competition authority endowed with sufficient enforcement powers
International cooperation on competition policies requires the existence of domestic
institutions with clearly specified enforcement powers to investigate and eliminate anti-competitive
practices.  While the concept of competition policies is certainly broader than that of competition law,
it is difficult to see how an effective competition policy can be applied in the absence of legally
enforceable mechanisms to deal with anti-competitive business practices.  Progressivity and flexibilityWT/WGTCP/W/152
Page 6
should be important elements in the definition of this core principle. In this connection, some of the
elements to be further discussed include the following:
− there is no need to envisage a detailed definition of the substantive scope of national
competition laws.  It would be sufficient to  envisage that such laws would cover anti-
competitive agreements among enterprises – whether of a horizontal or vertical nature – and
abuse of dominant position or monopolisation.  As noted in previous submissions, we do notconsider, however, that it is necessary to envisage that all countries should develop a merger
control regime;
− in the case of least developed countries and some small countries, the absence of a domestic
competition law regime may be due to capacity constraints.  Any commitment to set up a
domestic competition authority would therefore have to be progressive in nature.  Moreover,
there is a need to define any such commitment in a flexible manner so that different
economies can put in place the administrative systems more suitable to their circumstances.Also, in those cases in which a competition law regime has been established at the regional
level, some countries parties to the regional agreement (particularly small ones) may consider
that the development of a separate national competition regime (or parts of it, such as merger
control) is unnecessary;
− in view of differences in legal traditions, it would not be appropriate to envisage a detailed
definition of the enforcement powers of comp etition authorities.  As in other WTO
agreements, it would be sufficient to include a general reference to the powers of
investigation of competition authorities and to provide that sanctions should be established at
a sufficient level to constitute effective deterrence.
(b) Competition law should be based on the principle of non-discrimination on grounds of the
nationality of firms
The importance of non-discrimination - both MFN and National Treatment - for both the
multilateral trading system and national competition laws hardly needs stressing.  Indeed, it is difficult
to imagine any situation in which a competition law regime would establish any distinction on thebasis of the nationality of firms.  In order to avoid misunderstandings, it is important to stress,
however, that we are only suggesting to define a binding core principle on the need to avoid any de
jure discrimination as regards the domestic competition law framework.  We are not suggesting,
therefore, to apply in a competition agreement the concept of de facto discrimination.  The reason is
that, in a competition context, such concept rais es complex questions about the enforcement policies
followed by competition authorities, including how  competition law is being applied to individual
cases.
Moreover, the intention is to define de jure  discrimination exclusively in relation to the
domestic competition law regime.  We are not proposing that a competition agreement should seek to
introduce an absolute standard of national treatment as applying to any form of government law orregulation.  Similarly, as discussed below, the question of sectoral exclusions should be dealt with
through separate provisions and not through the simple application of the principle of nondiscrimination.
(c) Transparency as regards the legislative framework, including as regards any sectoral
exclusions
Transparency is again a central principle both for the multilateral trading system and for
competition authorities seeking to establish a "com petition culture".  Transparency of competition law
regimes is moreover of great importance for firms engaged in international trade and for consumers.WT/WGTCP/W/152
Page 7
It has to be acknowledged, however, that certain aspects of transparency may entail administrative
costs and have therefore capacity-building implications.  At the same time, newly established
competition authorities have often stated that developing transparent procedures is a key requirement
for ensuring respect for the law and establishing credibility on enforcement.  This suggests that a
multilateral agreement should be based on high standards of transparency, while recognising thatcertain elements may need to be introduced progressively and be identified as a priority for technical
assistance cooperation programmes.
The issue of sectoral exclusions from the application of competition law is of great
importance both from a competition and a trade perspective.  It is, however, a question of great
sensitivity and complexity both among developing countries and several OECD members.  Some
countries have noted that, in order to gather consensus for the introduction of competition legislation,
it has proved necessary to introduce certain sectoral exclusions, but that these have then been limited
over time. Indeed, the trend over recent years has been to eliminate such exclusions or to define them
in narrow terms.  We suggest that a flexible approach  would be to focus, at this stage, on the question
of transparency as regards sectoral exclusions.
(d) Guarantees of due process
As is the case in other WTO agreements, transparency provisions should include the issue of
"due process" and the availability of effective domestic remedies.  This would include procedures
through which private parties can have access to the competition authorities, guarantees of due
process in competition investigations and enforcement, basic standards of protection of confidential
information, a right of appeal against administrative decisions and the role of the judiciary in the
enforcement process. As with other aspects of transparency, certain provisions may have to include anelement of progressivity and capacity building.  Moreover, the balance between the role of
administrative competition authorities and the judiciary would need to recognise differences in legal
traditions.  For instance, effective guarantees as re gards the right to bring petitions to administrative
competition authorities are of greater importance in the case of countries where direct access to the
judiciary is subject to significant limitations.
(e) Agreement to treat "hard-core" cartels as a serious breach of competition law
Without wishing to suggest a legal definition, hard-core cartels are generally understood to be
agreements among actual or potential competit ors involving price fixing, bid rigging, output
restrictions or customer allocation and market divisions. Such horizontal agreements have a clear
trade distortive effect and are considered as a serious breach of most competition law regimes.  A
common principle on hard-core cartels should also contribute towards enhanced international
cooperation against international cartels, which as pr eviously noted constitute the highest priority for
international antitrust enforcement.
(2) Cooperation modalities
Provisions for enhanced international cooperation should be at the centre of a multilateral
framework agreement on competition policies.  Modalities for cooperation should be sufficientlyflexible to address the needs of countries at different stages in the development of a domestic
competition law regime (i.e. from technical assistance relating to the drafting of a law or a
reinforcement of domestic institutions to general exchanges of experiences and case-specific
cooperation).
Discussions so far in the Working Group have shown that, in order to address countries' needs
effectively there would be a need to combine two forms of cooperation provisions:WT/WGTCP/W/152
Page 8
− provisions to facilitate case-specific cooperation on anti-competitive practices of an
international dimension, and
− provisions relating to general exchanges of information and experiences and joint analysis of
global competition issues.  This latter function could be undertaken by a Competition PolicyCommittee to be established once a WTO agreement has been concluded.
The cooperation provisions of a competition agreement, as well as the establishment of a
multilateral forum for exchange of information and experiences, would be of great benefit for all
competition authorities, including in particular those of developing countries.  Only in this way would
it be possible to ensure that developing countries are effective participants in international antitrust
cooperation.  At the same time, there is a need to envisage provisions aimed at addressing specific
cooperation needs of developing countries and transition economies.  These are discussed in the next
section which focuses on technical assistance for capacity building and enforcement assistance.
Discussions in this Working Group should help to better identify the specific cooperation
needs of countries to be addressed in a competition agreement.  On the basis of discussions so far, the
EC is of the view that the following key elements could be included in a WTO agreement, subject of
course to further discussions:
(a) Case-specific cooperation
A multilateral agreement on competition should include provisions to facilitate case-specific
cooperation in relation to anti-competitive practices of an international dimension.  Such provisions
should apply to the three types of anti-competitive practices mentioned in the first section in this
paper, that is:
− practices that affect international markets (for instance, international cartels);
− practices that affect market access (for instance, import cartels, exclusionary abuses of a
dominant position), and
− practices with an impact on a different market to that in which they have been conceived (for
instance, export cartels, abuse of a dominant position by a foreign corporation).
Cooperation provisions could include the following:(1) Exchanges of case-related information and evidence
One of the main difficulties - for any competi tion authority - in dealing with international
cases is to discover the necessary evidence when this is located outside its own jurisdiction.  Thepossibility of co-operating antitrust authorities concerned by one and the same case to exchange case
specific information or evidence is of great value.   The main obstacle to these exchanges is the
confidential character of such information and the ru les limiting its use and disclosure.  It is clear that
under the envisaged multilateral framework there wo uld be no requirement to exchange confidential
information.
However this should not be seen as an absolute ban on the exchange of any useful non-public
information.  Competition authorities do not function along the principle that whatever is not
specifically classified as confidential should be published on their web-site for all to see.  Useful
factual and legal information that could be crucial to a foreign authority when dealing with a specific
case may fall in this category between publicly available and confidential information.  On the other
hand, even when one comes to confidential information as such, in each antitrust regime there can beWT/WGTCP/W/152
Page 9
specific elements of information that are not covered, not covered yet or no longer covered by the
confidentiality protection rules.  Also, under certain conditions - for instance if a special "waiver" has
been granted by the source of the information - ev en restricted or confidential information can be
shared.  One should take into account the fact that an authority may be facilitated to make further
progress in and better orient its discovery operations once it acquires (with the assistance of a foreignauthority) certain facts that are difficult to collect from abroad in the first place.
(2) Consultations and exchanges of views on cases affecting the important interests of another
WTO Member
WTO Members should be ready to enter into consultations in order to develop mutually
satisfactory and beneficial measures to deal with anti-competitive practices of an international
dimension.  In order to facilitate such consultations, a WTO Member should inform other Memberswhose important interests may be affected by an ongoing investigation and proceeding under its
competition laws.  Similarly, a WTO Member may draw to the attention of another WTO Member
evidence of an anti-competitive practice with an impact on its trade or investment and seek
information about any possible competition investigation on such practices.  In the context of
consultations, a WTO Member may also seek assistance from the home country of a foreign MNE inrelation to an ongoing competition investigation or seek information which may be of value for
enforcement activities in relation to international, import or export cartels.
Consultations would also provide an opportunity to exchange views about market analysis or
possible remedies.  When an anti-competitive practice has an impact on several markets and is subject
to parallel competition investigations, WTO Members should endeavour to co-ordinate their actions.
In order to avoid the potential for jurisdictional conflicts, a WTO agreement could also
include principles of negative comity (i.e. a WTO Member should take into account the important and
clearly stated interest of other Members concerned before action is taken).
(b) General exchanges of information and experience and joint analysis:  role of a Competition
Committee
Many WTO Members, including developing countries, have stressed the value of establishing
a multilateral forum that would facilitate general exchanges of information and experiences on issues
of common concern relating to the application of competition law to international transactions.  It has
been noted that, in addition to the establishment of core principles and facilitating case-specific
cooperation, the WTO can also fulfil an important role in fostering policy dialogue and joint analysis.
This would tend to reinforce the role of competition authorities in WTO Members and, in particular,
promote the integration of developing countries in international antitrust cooperation.  Ideas whichcould be considered in this respect include:
− facilitating exchanges of information on national laws, practices and developments.  This
could be done through the establishment of "contact points" in the Competition authorities of
WTO Members, which could facilitate access to such information upon the request of other
WTO Member.  It should be noted that much of this information is currently contained in the
web-sites of many competition authorities.  Where necessary, assistance could be provided tocompetition authorities in developing countries to develop and facilitate access to electronic
means of information;
− exchanges of experiences and discussions on competition policy issues with an impact on
international trade.  This could include, for instance, further analysis and exchanges of
experiences on the approaches followed by competition authorities to deal with differenttypes of anti-competitive practices with an impact on international trade.  It could also includeWT/WGTCP/W/152
Page 10
exchanges of experiences on the competition advocacy role of competition authorities or the
review of sectoral exclusions.  Such analysis and exchanges of views could facilitate gradual
convergence on the approaches followed by competition authorities.  It would also help
competition authorities to benefit from the experience of others;
− voluntary "peer reviews" of Member's competition policies.  This would provide an
opportunity for WTO Members to present their experiences relating to the application ofcompetition law to anti-competitive practices of an international dimension and to benefit
from the comments of others.  Peer reviews would also allow for discussion of the
enforcement policies of Members.  They could also be an important occasion to identify
capacity constraints and review progress in technical assistance programmes;
− joint analysis and discussion on global competition issues affecting the world economy.  A
possible tool to facilitate such analysis would be the preparation of a periodic report on major
competition policy developments with an impact on a globalized world economy.  The report
could draw on trends identified on the basis of the annual reports currently being published by
many competition authorities.
The above functions could be carried out by a Competition Policy Committee to be
established in the WTO following the conclusion of a multilateral framework agreement.
(3) Specific support for competition institutions in developing countries.
While the provisions on cooperation discussed above would be of value for all competition
authorities, it would be appropriate to consider mo re specific and targeted support for competition
authorities in developing countries and transition economies.  Such specific provisions could include:
− an enhanced and more co-ordinated approach to technical assistance for capacity building;
− enforcement assistance in the case of competition investigations undertaken by developing
countries.
Together with the provisions on progressivity and flexibility mentioned elsewhere in this
paper, such targeted support would reflect the prin ciple of special and differential treatment in a
competition agreement.
(a) Technical assistance for developing countries
Our last submission to the Working Group discussed in some detail the issue of technical
assistance.  Some of the weaknesses of the current approach are summarized in the first section of thispaper.  We are convinced that the WTO has an important contribution to make towards the
development of an enhanced and better co-ordin ated approach to technical assistance in the
competition field.  It is clear, however, that such a role would have to be undertaken in cooperation
with other international organizations and could only complement the primary role of WTO which
should remain that of establishing binding rules and multilateral cooperation modalities.  Indeed, inthe absence of a decision to develop such rules in WT O, there is little justification to envisage a role
for WTO on technical assistance which goes beyond its current analytical mandate
2.
                                                     
2 On the basis of its analytical mandate, the WTO S ecretariat is organising and participating a series of
regional seminars to foster better understanding of the issues being discussed in the Working Group.  The EC
fully supports such activities.WT/WGTCP/W/152
Page 11
The above does not mean, however, that a more coherent approach to technical assistance can
only be considered after the conclusion of a WTO competition agreement.  Experience with the
implementation of the Uruguay Round Agreements has shown that the issue of capacity-building
needs to be considered up front.  It is for this reason that the EC has suggested that, in the case of new
agreements whose implementations may require development of national capacities, co-ordinatedapproaches to technical assistance should be developed in parallel to the negotiations of any new
rules.  This should ensure that, once such an agreemen t is in place, an enhanced approach to technical
assistance can be made immediately operational.
Some of the key principles which could inform such an enhanced approach to technical
assistance include the following:
− a clear commitment by all development partners to give greater support to technical assistance
in the competition field and to mainstream such assistance into national development
programmes.  While efforts to better integrate competition in development cooperationactivities are ongoing, the decisive "push factor" is only likely to be provided by the decision
to negotiate a multilateral agreement;
− an integrated approach to technical assistance which can ensure continuous and coherent
support to developing countries and transitional economies at different stages of the
development of a national competition regime.  Technical assistance should include, whenrequested, support for the drafting of a law and the setting up of a competition authority,
building up expertise in the area of enforcement, training personnel and support for general
information policies, improving the capacity to deal with complex "international" cases, etc.
Delivery mechanisms should be geared towards the central goal of enhancing national
capacity on a sustained basis;
− requests related to the implementation of a WTO agreement on competition should be
integrated into integrated technical assistance programmes involving competent international
organizations and other donors.  It should be noted, however, that technical assistance should
not be limited to what is strictly required for implementation.  An important goal should also
be to promote convergence towards "best practices" and to improve the capacity of nationalauthorities to fully benefit from international cooperation;
− the development, within the framework of WTO and in cooperation with all competent
international organizations, of a model work programme on technical assistance for capacitybuilding in the competition field.  The key elements for such a work programme could
include stocktaking of ongoing technical assistance, demand-driven needs assessment, co-ordinated and integrated responses and procedures for monitoring and evaluation.
This enhanced approach to technical assistance can only work if there is a strong commitment
to give greater priority to cooperation in the competition field and to improved co-ordination.  A
WTO agreement on competition should play a catalytic role in this respect.  The WTO secretariatwould obviously need to work in close cooperation with UNCTAD, the World Bank and other
organizations with experience in the competition field.
(b) Enforcement Assistance for Developing Countries
Fledgling competition authorities in developing countries will most probably need
enforcement assistance from more experienced authorities.  Apart from aspects unrelated to specific
antitrust cases, such as for instance training in  investigation and information-gathering techniques,
due process and access to file issues, etc., which can be addressed under the broader framework ofWT/WGTCP/W/152
Page 12
technical assistance, there are essentially two situations where case-related enforcement assistance
could be envisaged:
− provide a developing country concerned by an anticompetitive practice (e.g. an international
cartel or an activity of a multinational firm) illegal under its competition rules and seriouslydistorting competition in its market with information making it aware of the existence of the
practice and helping it launch investigations.  This can be quite useful but has to be done inconformity with confidentiality provisions  in the country possessing the information;
− enable a developing country which becomes the target of anticompetitive practices organised
abroad to request the country or countries where these practices originate or where the firmssuspected of anticompetitive activity have thei r main headquarters, to take action to remedy
the situation or respond to the requesting countries' concerns.
It would be understood, of course, that enforcement responsibility lies with the country with
primary jurisdiction over the anticompetitive practices in question and that enforcement assistance
would remain voluntary in nature, i.e. it would have to be compatible with the enforcement priorities,
important interests and available resources of the requested country.  Of course, countries would be
committed to enter into consultations and to give sympathetic consideration to such requests.
Enforcement assistance could in principle be available to all WTO Members, although such facilitiesare likely to be of particular interest for developing  countries.  The EC would be interested in further
ideas and debate on this subject, including suggestions about specific modalities to meet the particular
needs of developing countries.WT/WGTCP/W/152
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ANNEX
Outline of possible elements for a binding Multilateral Framework
Agreement on Competition Policy
1. Core Principles of Competition Law and Policy
− Agreement to have a competition authority endowed with sufficient enforcement powers.
− Competition law to be based on the principle of non-discrimination on grounds of nationality
of firms.
− Transparency as regards the legislative framework, including as regards any sectoral
exclusions.
− Guarantees of due process.
− Agreement to treat "hard-core" cartels as a serious breach of competition law.
2. Cooperation modalities
− Case specific cooperation on anti-competitive practices of an international dimension:
• Exchanges of information
• Consultations and Exchanges of views on cases affecting the important interests of
another WTO Member.
− General Exchanges of information and experiences:
• Facilitating exchanges of information on national laws, practices and developments.
• Exchanges of experiences and discussions on competition policy issues with an
impact on international trade.
• Voluntary "Peer Reviews" of Member's competition policies.
• Joint analysis and discussion of global competition issues affecting the world
economy.
3. Specific support for competition institutions in developing countries.
− Enhanced and better co-ordinated approach to technical assistance for capacity building.
Development of a WTO work programme, including:
• Stocktaking
• Demand-driven needs assessment
• Co-ordinated and integrated responses
• Monitoring and Evaluation
− Enforcement Assistance for Developing countries.
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