Contratto ImpresaEuropa - Cedam

SAGGI 1011
tailed proposal for a “Reference Paper » was drafted by the EC along the
lines of the Reference Paper, including reference to anti-competitive practices,
the Telmex case is likely to have a particular impact on the negotiations.
This dispute has tested the real strength of the commitments undertaken
under the Reference Paper, together with the Panel’s ability to
exploit the margins of discretion that broad definitions and non-exhaustive
lists have granted. Regardless of whether the Panel’s interpretation
of anti-competitive practices has gone beyond the scope of the Reference
Paper and Mexico’s actual commitments, this instrument proved, as
such, to be a solid guarantee in securing the protection of the commercial
opportunities agreed to and exchanged through the GATS in the
form of market access and national treatment commitments. In this respect,
the outcome of the case could be twofold: on one side, to lead to
greater caution WTO Members when negotiating commercial concessions
under the shape of market access, national treatments and additional
commitments but at the same time to stimulate the negotiation of
similar additional commitments in other sectors so as to encourage clarity
and regulatory certainty.
The Panel’s interpretation of anti-competitive practices surely represents
one of the most interesting elements of the case. The current international
trade law framework does not provide for any set of rules on
competition law. The absence of such rules is due to the reluctance of
most WTO Members to negotiate a comprehensive agreement on competition
policy under the WTO, as evidenced by at the WTO Ministerial
meeting held Cancun in 2003.
The interaction between trade and competition policies has been extensively
debated inside and outside the WTO Working Group on the Interaction
between Trade and Competition Policies, established by the WTO
Singapore Ministerial Declaration in 1996 ( 29 ). Behind the failure to agree
on a framework and the complete abandonment of the issue lied much
scepticism from both developed and developing countries towards having
WTO Panels ruling on polices that are domestic by nature, and, mostly, in
towards entrusting WTO Panels and the multilateral trading system itself
with the analysis and enforcement of competition principles.
This Panel’s evaluation of Mexico’s anti-competitive actions has
raised much criticism. Some authors heavily criticised the Panel’s competition
analysis and are concerned that WTO panels may create new com-
( 29 ) Singapore Ministerial Declaration, Adopted on 13 December 1996, WTO, Document
WT/MIN(96)/DEC, para. 20.