a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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PREFACE<br />
be set at a percentage of the global turnover of<br />
<br />
Republic of Tanzania, introducing a 0–10 per cent<br />
interval.<br />
What is in any case very important for antitrust<br />
<br />
<br />
issuing of the appeal judgment before paying the<br />
im<br />
orders) concludes that a decision is prima facie<br />
wrong, he may suspend the obligation to pay the<br />
<br />
<br />
(information on the 3 countries).<br />
Fines should not become a source of funds for the<br />
Authority like in Zambia where the Authority is al-<br />
<br />
paid, even though the law was never made operational.<br />
This was very wise on the part of the Author-<br />
<br />
fore<br />
should be abolished, as the individual Report<br />
on Zambia suggests, since the Authority would lack<br />
neutrality in deciding on cases. Also appeal judges,<br />
knowing that if they block a case the Authority<br />
would lose an important part of its funding, may<br />
be tempted not to be too rigorous in their review. If<br />
proper funding of the Authority is not guaranteed<br />
by some other source, there is a risk that the Authority<br />
would be forced in the years to come to take<br />
advantage of the option to retain a percentage of<br />
<br />
4. Judicial review<br />
All decisions by competition authorities are appealable<br />
in front of a judge and of course this is<br />
so also in the three countries under review. This<br />
means that the problem of the Authority being an<br />
enforcer and an adjudicator at the same time is<br />
less relevant as it may appear, since a judge is in<br />
any case involved once the Authorities’ decisions<br />
are appealed.<br />
<br />
whether the decision by the competition authority<br />
is enforceable even if appealed. The second<br />
is how extensive is the review of the judge (the<br />
standard over which the judge decides). The third<br />
is whether the judge is an expert about antitrust<br />
enforcement and how able is he to appreciate the<br />
13<br />
quality of the Authority’s decisions. The fourth is<br />
the timing of judicial review.<br />
In the European Union decision of competition<br />
authorities are fully enforceable even if appealed,<br />
unless they are suspended by the judge for serious<br />
shortcomings in the Authority’s reasoning.<br />
This enforceability of the Authorities decisions<br />
even if appealed, is meant to speed up the process<br />
of judicial review by providing an incentive to<br />
act to the judge. This immediate enforceability of<br />
the Authority’s decisions makes the judge aware<br />
that in order to block a decision there is a need<br />
for a ruling.<br />
The distinction between full (where judicial review<br />
leads to a full revision of the case) and administrative<br />
jurisdiction (where judicial review controls<br />
the logic of the Authority’s decision and whether<br />
the Authority’s decision was taken according to the<br />
powers provided by the law) is much smaller than<br />
one may think. The only real difference is that with<br />
full jurisdiction the appealing judge is able to consider<br />
different facts than those considered by the<br />
Authority at the time of the decision. In fact, even<br />
an administrative judge would be able to assess<br />
all substantive aspects of a case, from the relevant<br />
market, to the restrictiveness of the practice, to the<br />
evaluation of the future course of events as originating<br />
from the prohibited practice. The expertise<br />
of the judge is very important, since antitrust rules<br />
are written in very general terms and what they<br />
actually prohibit needs to be interpreted. It does<br />
not originate by a simple reading of the legal provisions.<br />
For example, the move to an effect based<br />
approach in antitrust, which took place in the European<br />
Union in the last decade, was not evident<br />
by the way the substantive legal provisions are<br />
written. As a result, besides providing judges with<br />
<br />
that antitrust cases are always heard by the same<br />
court or by the same section of a larger court, so<br />
that judges could understand the philosophy behind<br />
the approach adopted by the Authority and<br />
be coherent in the future, once they approve it.<br />
-<br />
<br />
necessary to make sure that the full decision making<br />
(which includes the timing of the appeal) be<br />
quite short, otherwise decisions would really affect<br />
<br />
current developments.<br />
COMPARATIVE ASSESMENT