Contratto ImpresaEuropa - Cedam

1008 CONTRATTO E IMPRESA / EUROPA
price-fixing cartel led by Telmex, Mexico’s major telecommunication company.
The Panel began its assessment from the definition of « major supplier
». It noted that Mexico’s Reference Paper defines anti-competitive practices
as those enacted by « suppliers who, alone or together are a major
supplier ». The Panel observed that Telmex is both alone and together with
other operators a major supplier. Firstly, it is a ‘major supplier’ for its own
ability to affect the terms of participation through the use of its position in
the market. Secondly, as the practices at issue involved also acts of other
Mexican gateway operators, Telmex was a major supplier together with
these latter suppliers.
The Panel’s following step was to examine the meaning of the term of
« anti-competitive practices ». Due to lack of any definition in the Reference
Paper, the Panel looked at the ordinary meaning of the terms “practice”,
“competition” and “competitive.” In line with the definition of these
terms, the Panel interpreted the word “anti-competitive” as « tending to
reduce or discourage competition ». On its own, therefore, the term « anti-competitive
practices » is broad in scope, suggesting actions that
« lessen rivalry or competition in the market ».
As a next step the Panel looked at the meaning of the « anti-competitive
practices » in the context of a Reference Paper. Section 1, paragraph 2
states that these practices «shall include in particular » and further it provides
examples of «anti-competitive practices ». Thus, the Panel concluded
that this list is not exhaustive. The Panel also took the view that the notion
of anti-competitive practices must be read in the light of other legal
instruments, such as national competition laws and the United Nations Set
of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive
Business Practices ( 26 ). Moreover, to the extent that both Mexico
and the United States are Members of the Organisation for the Economic
Development and Co-operation (hereinafter, « the OECD »), the definition
of anti-competitive practices must include as well those practices –
notably price fixing cartels and market-sharing agreements – that are already
prohibited by the OECD Council Recommendation Concerning Effective
Action against Hard Core Cartels ( 27 ). Such interpretation led the Pan-
( 26 ) The United Nations Set of Multilaterally Agreed Equitable Principles and Rules for the
Control of Restrictive Business Practices is available at the following website: http://r0.unctad.org/en/subsites/cpolicy/docs/CPSet/rbpc10rev20en.pdf.
( 27 ) The OECD Council Recommendation Concerning Effective Action against Hard Core
Cartels is available at the OECD website under the following link: http://www.oecd.org/