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Good Governance Guidelines: Independence and Transparency

Policy brief by Brusick, Philippe/UNCTAD, 2016

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Also available in: Arabic, French

Sound policy outcomes are better assured when decisions by the competition authority are not politicized, discriminatory or implemented on the basis of narrow goals of interest groups. Hence, it is widely accepted that competition authorities should be insulated from undue political interference. Thus, the independence of competition authorities is often defined as their distinct legal personality and structural separateness from Government. In addition to defining the authority’s structure, enabling legislation usually prescribes functions, powers, the manner in which members of management and staff are to be appointed, their tenure and removal, and how the authority is to be financed, often providing financial autonomy. This also includes its obligations with respect to transparency, confidentiality and the possibility of recourse. Even when the law is quite explicit, “de-facto” practice may deviate from the “de-jure” letter of the law. Independence should, therefore, be considered in terms of degrees of independence rather than as absolute independence. This publication examines the degree of independence and transparency which the MENA Project countries, which have competition laws, have inscribed within their legislation and to a certain extent, how this is implemented in actual enforcement practice, taking into consideration the general trends of this particular subject, as observed worldwide.



ii




Note


The material contained in this publication may be freely quoted or reprinted but acknowledgement is


requested, together with a reference to the document number. A copy of the publication containing the


quotation or reprint should be sent to the UNCTAD Secretariat: Palais des Nations, 1211, Geneva 10,


Switzerland.


The designations employed and the presentation of the material do not imply the expression of any


position whatsoever on the part of the United Nations Secretariat concerning the legal status of any


country, territory, city area, or its authorities, or concerning the delimitations of its frontiers and boundaries,


or regarding its economic system or degree of development.


For further information on the UNCTAD MENA Programme please consult the following sites:


https://twitter.com/unctad_mena, and https://www.facebook.com/unctadmena/


Or contact: julieta.coca@unctad.org


This document has been reproduced without formal editing.




Acknowledgements


This publication was written by Philippe Brusick, UNCTAD MENA Programme Expert.


The publication was organized and prepared for publishing under the supervision of Julieta Coca, Project


Manager, UNCTAD MENA Programme, Division of International Trade in Goods and Services, and


Commodities, UNCTAD.


The formatting of this document was done by Rafe Dent, UNCTAD.


Maria Bovey, UNCTAD, assisted with the English language version, the cover page design was created by


Lirong Zang, UNCTAD and the Arabic translation was done by Ali Khaffane.


Special thanks are owed to the Swedish Government, which has provided generous financial support to


the UNCTAD MENA programme and enabled the production of this publication.


Guillermo Valles


Director


Division of International Trade in Goods and Services, and Commodities


22 June 2016


















UNCTAD/DITC/CLP/2016/2


United Nations Publication


Copyright©United Nations, 2016


All rights reserved




iii


Table of Contents


Note ......................................................................................................................................... ii
Acknowledements .............................................................................................................. ii
Executive summary ........................................................................................................... iv


1. Introduction ................................................................................ 1


2. General Aspects of Competition Law .............................................. 3


2.1 Object of the law ........................................................................................................................................... 3
2.2 Dealing with criteria other than competition ................................................................................... 4
2.3 Statutes of the competition authority ................................................................................................. 4


3. Structure of the Enforcement System ............................................ 6


3.1 Separation of the investigatory arm from the decision-making body ................................. 6
3.2 Physical location of the competition authority ............................................................................... 6
3.3 Budget independence ................................................................................................................................. 6
3.4 Appointment of officials of the competition authority ................................................................ 8
3.5 Qualifications of members of the competition authority ........................................................... 8
3.6 Delays in nominating the members...................................................................................................... 9


4. Powers of the Competition Authority .......................................... 14


4.1 Scope of application and exemptions ...............................................................................................14
4.2 Prescription of anti-competitive laws .................................................................................................17
4.3 Scarcity of adequate skills .......................................................................................................................18
4.4 Possible tensions between the related Ministry and the Competition Authority .........19
4.5 Discretion to set priorities .......................................................................................................................19
4.6 Prior consultation of the competition authority on draft laws and regulations ............22
4.7 Relations with sectoral regulators........................................................................................................23


5. Transparency and accountability .................................................. 26


5.1 Publication of information .......................................................................................................................26
5.2 Confidentiality ...............................................................................................................................................30
5.3 Conflict of interest and rules of ethics ..............................................................................................32
5.4 Judicial review of decisions and sanctions ......................................................................................34


6. Conclusion ................................................................................. 37




References .................................................................................... 39











iv
















Executive summary




Sound policy outcomes are better assured when decisions by the competition authority are not


politicized, discriminatory or implemented on the basis of narrow goals of interest groups. Hence, it is


widely accepted that competition authorities should be insulated from undue political interference.


Thus, the independence of competition authorities is often defined as their distinct legal personality and


structural separateness from Government. In addition to defining the authority’s structure, enabling


legislation usually prescribes functions, powers, the manner in which members of management and


staff are to be appointed, their tenure and removal, and how the authority is to be financed, often


providing financial autonomy. This also includes its obligations with respect to transparency,


confidentiality and the possibility of recourse. Even when the law is quite explicit, “de-facto” practice


may deviate from the “de-jure” letter of the law. Independence should, therefore, be considered in


terms of degrees of independence rather than as absolute independence. This publication examines the


degree of independence and transparency which the MENA Project countries, which have competition


laws, have inscribed within their legislation and to a certain extent, how this is implemented in actual


enforcement practice, taking into consideration the general trends of this particular subject, as


observed worldwide.




Good Governance Guidelines: Independence and Transparency




1


1. INTRODUCTION1


The UNCTAD Model Law on Competition is


formulated on the assumption that the most


efficient type of administrative authority for


competition enforcement is likely to be one that:


(a) is quasi-autonomous or independent of the


Government, with strong judicial and administrative


powers for conducting investigations and applying


sanctions, and


(b) provides the possibility of recourse to a higher


judicial body.


There is growing acceptance that decisions by


competition authorities should be based on


objective evidence, and that the decision-making


process should be neutral and transparent. The


reasoning behind this view is that sound policy


outcomes are assured only when decisions by the


competition authority are not politicized,


discriminatory or implemented on the basis of the


narrow goals of interest groups. This reasoning is


typically translated as a requirement for


competition authorities to be insulated from undue


political interference.


In practical terms, this necessitates a separation of


policy implementation from policymaking and a


departure from the traditional structure of the


machinery of Government. Thus, Government, or a


related ministry, like the ministry of trade and


industry, should cede control over day-to-day


functions and decision-making to the competition


authority. As a direct consequence, private interest


groups would be less in a position to lobby


ministers in order to gain favourable treatment.


Thus, the independence of competition authorities


is often defined as their distinct legal personality


and structural separateness from Government.


Accordingly, competition authorities are often


statutory bodies established by a specific Law of a


legislature to fulfill prescribed responsibilities.


In addition to prescribing the authority’s structure,


enabling legislation generally gives legal meaning


to the authorities’ operational (or functional)


independence by prescribing functions, powers,


the manner in which members of management and


staff are to be appointed, their tenure and removal,


and how the body is to be financed, often


providing financial autonomy.


The legal protection regarding the independence of


competition authorities is common and there is


some evidence of convergence, although there are


numerous organizational formats across different


countries. For example, as can be seen below, the


independence of the Moroccan Competition


Council has recently been inscribed in Morocco’s


Constitution.


It should be noted that, even when the law is quite


explicit, de-facto practice may deviate from the de-


jure letter of the law. Factors such as


administrative traditions or the personalities of high


officials often shape the actual level of


independence, resulting in either enhancing or


diminishing the level of independence.


Independence is variable and it is often more


useful to speak in terms of degrees of


independence rather than absolute independence.


Consequently, there is no single standard of


independence which countries must adopt and


independence does not connote that competition


authorities do not answer to anyone. Therefore, it is


clear that no competition authority can be


completely independent from the Government


structure of which it is an integral part.


This publication examines the degree of


independence and transparency by which the


MENA Project countries which have competition


law inscribed within their legislation, and to a


certain extent how this is implemented into actual


enforcement practice, while also taking into


consideration how these general trends are


observed worldwide. In doing so, this document


has been closely inspired by general


considerations found in other UNCTAD documents,


in particular Independence and Accountability of


Competition Authorities, (Document


TD/B/COM.2/CLP/67) of 14 May 2008.


In order to contribute to setting good governance


guidelines for the benefit of MENA Project


countries, this document will pay close attention to:


a) General aspects of competition law


impinging on the degree of independence


of a competition authority, including the


object of competition law, how issues


other than competition are dealt with and


the statutes of the competition authority;


b) The structure of the competition


enforcement system, including the case of


separation of the investigatory arm from


the decision-making authority in some




Good Governance Guidelines: Independence and Transparency




2


jurisdictions, the physical location and the


degree of budget independence of the


competition authority, how and who


appoints the officials of the competition


authority and for how long, and what are


the qualification requirements of such


officials, if stipulated in the law;


c) The powers of the competition authority,


including the scope of application of the


law and its exemptions, cases where anti-


competitive laws are prescribed after a


few years and cannot be challenged, the


effects on independence of scarcity of


adequate skills and possible tensions that


may occur between the competition


authority and its related ministry, the


degree of discretion the competition


authority is afforded to set its priorities of


work, its powers to advise on any new


laws or regulations which might adversely


affect competition, and its relations with


sectoral regulators, which usually have


exclusive control over their sector;


d) The obligations of transparency and


accountability of the competition authority,


including its obligations to publish all


relevant information on its activities and


report to higher authorities, while


maintaining confidentiality with respect to


its internal deliberations and non-


disclosure of legal business interests, and


finally the extent of judicial review of its


decisions and sanctions.









Good Governance Guidelines: Independence and Transparency




3


2. GENERAL ASPECTS OF
COMPETITION LAW


2.1. Object of the Law2


The unhindered exercise of competition


enforcement is often also interpreted in relation to


how countries choose to articulate the objectives


of their national competition laws. Views differ


widely on what are appropriate competition law


objectives. Competition purists eschew all non-


efficiency objectives because of the attendant risk


of exposing the competition authority’s decisions


to undue influence and necessitating trade-offs


between efficiency and non-efficient goals.


The developmental perspective, while accepting


that efficient objectives are a primary goal of


competition enforcement, takes the view that the


acute social and economic challenges that


confront the developing world oblige Governments


to use all policy tools to address these ills.




In the MENA Project countries having competition


laws, the actual object of the law is only spelt out


in Algerian and Tunisian laws. In Algeria, the law


(Ordinance No. 03-03 of 19 July 2003 on


competition) defines the objectives as determining


the conditions of application of competition in the


market, preventing any practices restricting


competition and controlling economic


concentrations in order to stimulate economic


efficiency and to improve consumer welfare.


Similarly, the new Tunisian law (Law No. 36 of 15


September 2015 on the reorganization of


competition and prices) cites the main objectives


of the law, which are economic efficiency and


consumer welfare.


The other laws (of Egypt, Jordan and Morocco) do


not stipulate their objectives in the text.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition


Article 1: This Order is intended to establish the


conditions for the exercise of market competition, prevent


anti-competitive practice, control economic


concentrations, stimulate economic efficiency and


improve the well-being of consumers.


Egypt Not Found


Jordan Not Found


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition


Not Found


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of


Competition and Prices


Article 1:


This Law aims to define the provisions governing freedom


of prices, establish the rules governing free competition


to ensure general market equilibrium, economic efficiency


and consumer welfare.


Its purpose is to enact the obligations placed on


producers, traders, service providers and intermediaries


seeking to ensure price transparency, to curb speculative


practices and illicit price increases, and prevent anti-


competitive behaviour including practices and


agreements set abroad which have effects on the internal


market.


It is also designed to control the economic


concentrations of operations.




Good Governance Guidelines: Independence and Transparency




4


2.2. Dealing with criteria other than
competition3


A number of jurisdictions have devised different


procedures to outsource decisions relating to non-


efficiency considerations, usually in the form of


judicial, as in the United States, or ministerial


powers to designate exemptions.


Alternatively, other jurisdictions have procedures to


import non-efficiency considerations provided in


the competition law as public interest provisions


that oblige the competition authority to either apply


a specific public interest test, such as found in the


European Union and South Africa, or grant the


related minister specific circumscribed powers, as


is done in Italy, Jamaica, Singapore and the United


Kingdom, frequently in respect of the review of


mergers and acquisitions.


In many cases, public interest provisions exist in


some form or another, but the competition


authority or the minister refrains completely from


applying them, in the example of Italy, or they are


seldom activated.


2.3. Statutes of the competition
authority


In all MENA Project countries which have


competition legislation, except for Jordan, the


competition authority has a juridical personality


and is given financial autonomy, but it is placed


next to, or affiliated with, a parent ministry.


In Algeria, the Competition Council has a juridical


personality and financial autonomy, and it is


situated within the Ministry of Commerce.


In Egypt, the Authority for the Protection of


Competition and the Prohibition of Monopolistic


Practices has public juridical personality and is


affiliated to the Ministry of Trade and Industry.


In Jordan, The Competition Directorate is an


administrative body established within the Ministry


of Industry and Trade with its budget being part of


the Ministry’s financial allocation.


In Morocco, the Competition Council’s


independent status is inscribed in Article 166 of the


Constitution, is endowed with moral personality


and has financial independence.


In Tunisia, the Competition Council has moral


personality and financial independence.


As a sign of relative independence from the parent


ministry, the physical location of the Competition


Authority, such as that of Egypt, Morocco and


Tunisia, is found in distinct buildings, away from


the related ministry. On the other hand, the


Competition Council of Algeria and the


Competition Directorate of Jordan are located at


the Ministry.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


Title III - The Competition Council * - Article 23: (amended


by Article 9 of the Law 08-12) There shall be an


independent administrative authority, hereinafter referred


to as "the Competition Council", having legal personality


and financial autonomy, under the authority of the


Minister of Trade.


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008


Article 11: There shall be established an authority called


the “Authority” for the Protection of Competition and the


Prohibition of Monopolistic Practices. The Authority shall


(…) and shall have public juridical personality. The


Authority shall be affiliated to the competent Minister (…)


Jordan Competition Law No.33


of 2004 + Amendment


to Law No. (18) of 2011


The Competition Directorate is an administrative body


established within the Ministry of Industry and Trade to


practice the tasks and powers entrusted to it in




Good Governance Guidelines: Independence and Transparency




5


accordance with provisions of Article (12) of the Law.


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of August 7,


2014 *


Article 1*: In accordance with Article 166 of the


Constitution, the Competition Council, called the "Board"


in this Law, is an independent institution in charge of


ensuring transparency and fairness in economic relations,


in the context of the organisation of free and fair


competition, notably through the analysis and regulation


of market competition, the control of anti-competitive


practices, unfair trade practices and economic


concentrations and monopoly.


The board has legal personality and financial autonomy.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article 11:


Hereby is established an authority called the


“Competition Council” which enjoys legal personality and


financial autonomy and whose budget is linked to the


budget of the Ministry in charge of Commerce.


The headquarters of the Board are in Tunis. The Board


can optionally hold its meetings at any place in the


territory of the Republic.







Good Governance Guidelines: Independence and Transparency




6


3. STRUCTURE OF THE
COMPETITION ENFORCEMENT


SYSTEM


The structure of the competition enforcement


system has an important bearing on the


competition authority’s independence or at least


on its “perceived independence” by its


constituencies (Government, the judiciary,


enterprises, consumers, academics, media and the


public at large).


3.1. Separation of investigatory arm
from adjudicating decision-making
body


There are major differences in the structure of


enforcement systems in that, in some countries,


the investigative arm of the competition authority is


established as a department within a ministry, and


the adjudicative arm of the authority is constituted


either as a separate, collegiate body in the form of


a board of commissioners or a council. It might be


that certain jurisdictions differ in terms of the


degree of importance they attach to awarding


independence across specific functions in


competition enforcement.


It is often argued that structures of decision-


making in which the investigative and adjudicative


processes are not strictly separated, fail to pass


muster from the perspective of judicial review. This


was one of the main reasons why many


competition authorities have a "two-headed"


structure. The investigatory one is an integral part


of the related ministry, in the form of a directorate-


general on competition, including "fair competition",


consumer protection and repression of fraud. This


is separate from the decision-making, adjudicatory


body of competition (focused on cartels, abuse of


dominance and merger review or control of


concentrations), in the form of a competition


commission or council.


The "two-headed" structure was for many years


applied in France, and many other countries


adopting competition systems enacted similar


structures. This has obviously been the case in


Algeria, Morocco and Tunisia, three French-


speaking countries of the MENA Project region. It


is, however, noteworthy that France has recently


revised its structure, creating a unified competition


authority, the "French Competition Authority"


where, like at the German and broader EU


Commission system under DG Competition, both


the investigatory and the adjudicative arms of the


authority now form part of a single competition


authority.


3.2. Physical location away from the
Ministry building


A competition authority that has formal


independence is usually established as an


independent institution not physically located in a


Government ministry. The trend across most


jurisdictions in both developed and developing


regions is to establish competition enforcement


regimes comprising separate institutions that have


substantial administrative autonomy from


traditionally vertically-integrated ministries. This is


the case in most developed economies as well as


in the majority of developing countries and


economies in transition.


3.3. Budget independence4


The use of budgetary restrictions can be an


important way of curtailing or penalizing


enforcement. It is therefore important, if the


competition authority’s independence from political


interference is to be assured, to allocate the


authority with a budget which is as autonomous as


possible.


A process whereby the legislature allocates an


annual budget to the competition authority, giving


it the discretion to apportion it to various uses, is


perceived to grant a high degree of budgetary


autonomy to the authority. In many cases,


competition authorities fall under the portfolio of


parent ministries for financial, administrative and


reporting purposes, such that the authority’s


budget request is routed through the parent


ministry for approval by the finance ministry and


Parliament. In other cases, the authority submits its


budget request directly to the finance ministry or


treasury.


In most cases, the authority’s budget is part and


parcel of the parent ministry’s allocation and is


released at the ministry’s discretion. Alternative


sources such as user fees or the creation of a fund


through the imposition of a levy on new company


registrations, such as Turkey, are also possible in


some jurisdictions. In some countries, like


INDECOPI in Peru, the competition authority is


constituted as a multi-function institution that has


other regulatory responsibilities, such as


intellectual property, from which it can derive




Good Governance Guidelines: Independence and Transparency




7


revenue. While a few countries award their


competition authority a portion of the fines they


collect in enforcement action, this is considered


with suspicion in most countries, as this could give


the competition authority incentive to take


inappropriate actions to impose heavy fines in


order to increase its budget. It is also important to


prevent the use of funding as a vehicle for capture


by other interests.


Transparent funding of the competition authority


helps avoid corruption and thwart the hijacking of


competition enforcement by other interests.


Competition authorities are also subject to the


built-in financial reporting traditions of their


countries’ public sectors. In this context, the role of


the parent ministry and/or the ministry of finance,


treasury and/or the auditor general, and ultimately


Parliament, is especially important when it comes


to accountability in the budgetary process.


Accountability mechanisms may be present


throughout the budgetary process or at key


intervals (i.e. at the point of the submission of the


budget request, at each point when a


disbursement of funds is made, or at the end of the


budget year, when a mandatory report on


expenditure is required). In some countries, a


detailed operational strategy is an additional


requirement tied to the authority’s budget


allocation.


In Algeria, the Competition Council is endowed


with legal personality and financial autonomy.


However, the budget of the Council is inscribed


within the budget of the Ministry of Commerce, in


conformity with established rules and procedures.


According to the law, the President of the


Competition Council is the "ordonnateur" or


"organizer" of the budget, which is placed under


the general rules of application and control of the


State budget.


In Egypt, the Egyptian Competition Authority (ECA)


has an independent budget following the model of


the public services authorities. Any surplus in the


budget is forwarded from one fiscal year to another.


The resources of the ECA consist of:


Appropriations designated to the Authority in the


State General Budget, grants, donations and any


other resources accepted by the Board which do


not contradict with its goals, and revenues from the


fees provided for in the Law.


In Jordan, the Competition Directorate and the


Competition Affairs Committee (CAC) are part of


the Ministry of Industry and Commerce, and


therefore do not have independent juridical


personality nor an independent budget from the


Ministry.


In Morocco, the Competition Council is endowed


with juridical personality and financial autonomy.


Moreover, the independence of the Competition


Council is inscribed into the Constitution.


In Tunisia, the Competition Council is endowed


with moral personality and financial autonomy. Its


budget is related to the budget of the Ministry in


charge of Commerce. The modalities of the


Council’s administrative and financial functions are


fixed by Government decree taken upon proposal


of the Minister in charge of Commerce.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental


Ordinance No.03-03, 19


July 2003


Title III of the Council on Competition Article 23 (…), with


legal personality and financial autonomy.


Article 33*: The budget of the Competition Council is


registered as indicative of the budget of the Ministry of


Commerce and in accordance with the legislative


procedures and regulations in force. The Chairman of the


Competition Council is the authorising officer of the


budget. The budget of the Competition Council is subject


to the general rules of operation and control applicable to


the budget of the State.


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


Article 14: The Authority shall have an independent


budget following the model of the Public Services


Authorities. Any surplus in the budget shall be forwarded


from one fiscal year to another. The resources of the


Authority consist of the following: (1) Appropriations




Good Governance Guidelines: Independence and Transparency




8


+ Amendments to Laws


190 /2008 and


193/2008


designated to the Authority in the State General Budget;


(2) Grants, donations and any other resources accepted


by the Board and which do not contradict with its goals;


and (3) Revenues from the fees provided for in this Law.


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


Budget allocation from the Ministry of Industry and Trade.


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of August 7,


2014 *


Article 1*: (…) The Council is endowed with legal


personality and financial autonomy.


Palestine No Competition Law


Tunisia Law no. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article 11:


An authority called the “Competition Council” is


instituted. It enjoys legal personality and financial


autonomy and its budget is attached to the budget of the


Ministry of Commerce.


Article 14:


The modalities of financial and administrative


organization and functioning of the Competition Council


are laid down by a Government decree taken on the


proposal of the Minister responsible for Trade.


(…).




3.4. Appointment of officials of the
competition authority5


It is generally said that the appointment of


competition officials by a minister is less conducive


to independence than appointment procedures


that provide for the participation of representatives


of more than one Government branch. In addition,


it is assumed that competition officials whose


terms are not renewable and cannot be removed


from office except by legal procedure have less of


an incentive to please those who appointed them.


Actual practice is varied. In some jurisdictions, the


minister whose portfolio includes competition


policy appoints the chief executive of the authority


and the members of the commission. In others, the


minister appoints the board of commissioners with


or without endorsement from a higher authority,


and the commissioners appoint the chief executive.


In others, the minister submits nominations for




appointment by the country’s president, prime


minister, cabinet of ministers or Parliament.


3.5. Qualifications of members of the
competition authority6


Increasingly, competition laws establish:


a) Qualifications (e.g. a degree in law, economics


or accounting) and other criteria which


members should have, including in some cases


minimum age requirements,


b) The requirement that consumer groups and


professional associations be represented on


the board,


c) Obligation for members to disclose their


personal assets and possibilities of conflict of


interest, and


d) Prohibitions on affiliations to associations of


any kind, etc.


As can be seen below, the MENA Project countries


with competition law specify the composition of




Good Governance Guidelines: Independence and Transparency




9


their competition authority, their attributes and/or


qualifications, specifics of their nomination and the


duration of their tenure.




In Algeria, the law specifies that the 12 members


of the Competition Council are fully employed for a


period of 4 years and are nominated by


presidential decree. Of the 12 members, six have


university degrees and a minimum of 8 years


professional experience in law or economics


encompassing the fields of competition,


distribution, consumption or intellectual property.


Four members must have a university degree and a


minimum of 5 years of professional experience in


manufacturing, distribution, services or liberal


professions while 2 members must be official


representatives of consumer protection


organizations.


In Egypt, the Board of Directors of the Egyptian


Competition Authority (ECA) is composed of 15


members, (although the 2014 amendments to the


law have reduced this number) including a full-time


Chairperson, a counsellor from the State Council,


as vice-president, four members representing the


concerned ministries to be nominated by the


related Minister, three specialists and expert


members. Six members must represent the


General Federation of the Chambers of Commerce,


the Egyptian Federation of Industries, the Banking


Foundation, the General Federation of Civil


Associations, the General Federation of Consumer


Protection and the Egyptian General Union of


Labour, appointed for 5 years, with a one time


renewable opportunity. In addition, the ECA has a


full-time Executive Director, whose appointment is


decided by the Chairperson of the ECA.


In Jordan, the Director of the Competition


Directorate (CD) at the Ministry of Industry and


Trade is appointed by the Minister. The CD is


managed by the Competition Affairs Committee


(CAC), which is chaired by the Minister of Industry


and Trade and composed of 10 members - the


Undersecretary of the Ministry, acting as vice-


chairman, the DG of the Insurance Commission,


the CEO of the Telecommunications Regulatory


Commission, the DG of the Transportation


Regulatory Board, the President of the Union of


Chambers of Commerce, the President of one of


the chambers of industry named by the Minister,


the President of a consumer protection association


and three persons with expertise, both named by


the Minister. The tenure of the members is of 2


years with a one time renewable opportunity.


In Morocco, the Competition Council is composed


of one Chairman, four vice-chairmen, and eight


members. Among the vice-chairpersons, two are


magistrates, one is chosen by virtue of his/her


competence in economic and competition matters,


and one for his/her competence in law. The other


members include three members chosen on


account of their experience in economics or


competition, one expert in law, three actually


working in, or having worked in manufacturing,


distribution or services sectors, and one member


experienced in consumer protection. The Chairman


and the members are nominated for 5 year tenure,


renewable once. The Chairman is nominated by


dahir and the members by decree, upon proposal


by the "Conseil Supérieur du Pouvoir Judiciaire"


(High Council of Judges) for the magistrates and


the competent Government authority for the other


members.


In Tunisia, the Competition Council is composed


of 15 members, including a full-time Chairperson,


having at least 20 years of experience with


competencies in the fields of economics,


competition or consumption, two full-time vice-


chairpersons, a first vice-chair having at least 10


years of experience as counsellor at the Civil


Court or Administrative Tribunal and a second


vice-chair with at least 10 years of experience as


counsellor at the Court of Audit (Cour des


comptes), four magistrates having at least 5 years


of experience in commercial litigation, four


personalities chosen on behalf of their experience


in economics, law, competition or consumption,


and four persons presently active or having been


active in industry and commerce, services,


agriculture or consumer protection.


The Chair, vice-chairs and magistrates are


nominated for a non-renewable tenure of 5 years


while the other personalities are nominated for a 4


year non-renewable term. All nominations are by


Governmental Decree issued at the proposal of the


Minister in charge of Commerce.


3.6. Delays in nominating the
members


It should be noted that the Competition authority


may be paralysed simply by the long-term delays


in nominating new members to the managing


Board or Council. This was the case in Algeria,


where the Council was inoperative for ten years,




Good Governance Guidelines: Independence and Transparency




10


between 2003 and 2013, after the tenure of the


previous members of the Competition Council had


lapsed. In 2013 the Council was reactivated, with


the nomination of a council of 12 members,


including a Secretary-General and a team of 6


investigators (rapporteurs) including a Rapporteur


général.


A similar situation occurred in Morocco where


implementation of the new law was delayed


because of lack of members of the Competition


Council, whereby only the Chairman was still in


office. The 5 year tenure of the other members


lapsed in October 2013, and at the time of this


writing, the new members had not been nominated


as of yet. As a result, the Competition Council was


in a "standby mode" for more than 16 months.


Once the new members will be nominated, the


Council will be able to perform with increased


powers.






Algeria N.03-03 Order of 19


July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


Title III - The Competition Council


Article 24* - (Amended by Article10 of the Act 08-12):


The Competition Council consists of 12 members under


the categories below:


(1) 6 members chosen among the personalities and


experts holding at least a bachelor degree or an


equivalent university degree and professional experience


of a minimum of 8 years in the legal field and/or


competence in the economic field as well as an expertise


in the areas of competition, distribution, consumption and


intellectual property;


(2) 4 members chosen among qualified professionals with


a university degree and holding or having held


management positions and who have professional


experience/are professionals with at least five years in


areas of production, distribution, arts and crafts, services;


and


(3) 2 qualified members representing associations of


consumer protection.


The members of the Competition Council shall serve full-


time.


Article 25*: The President, the Vice President and the


other members of the Competition Council are appointed


by presidential decree. Their functions shall terminate in


the same manner.


(...) The renewal of the membership of the Competition


Council takes place every four 4 years, with half of the


members of each class (...).


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008 and 2014


Amendments*


Article 12: The Authority shall be managed by a Board of


Directors, the composition of which shall be formulated


by virtue of a decree of the Competent Minister as


follows: (1) a full-time Chairperson with distinguished


experience; (2) A counsellor from the State Council,


holding a vice-presidential rank, to be chosen by the


President of the State Council; (3) 4 members*


representing the concerned ministries to be nominated by


the Competent Minister ; (4) 3 specialists and expert


members; (5) 6 members representing the General


Federation of the Chambers of Commerce, the Egyptian


Federation of Industries, the Banking Foundation, the


General Federation of Civil Associations, the General




Good Governance Guidelines: Independence and Transparency




11


Federation of Consumer Protection and the Egyptian


General Union of Labour. Each Federation Union shall


appoint its own representative. The Board shall be


appointed for 4 years which may be renewed for another


term.


*2014 Amendments reduce the number of Government


representatives on the Board of ECA, introduce the


inviolability of the ECA Board members and relaxes the


quorum of vote for some types of decisions.


Article 15: The Authority shall have a full-time Executive


Director whose appointment**, remuneration and


competences shall be decided by the Competent


Minister upon the recommendation of the Chairperson of


the Authority. (…)


**2014 Amendments give the power to appoint the


Executive Director to the Chairperson of the ECA.


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


The Director of the Competition Directorate at the


Ministry of Industry and Trade is appointed by the


Minister.


The Competition Affairs Committee (CAC) is established


by Resolution No.1 of 2003 issued by the Minister of


Industry and Trade, pursuant to provisions of Article 14 A


of the Competition Law. The CAC is chaired by the


Minister and composed of 10 persons (the


Undersecretary of the Ministry, acting as vice-chairman,


the DG of the Insurance Commission, the CEO of the


Telecommunications Regulatory Commission, the DG of


the Transportation Regulatory Board, the President of the


Union of Chambers of Commerce, the President of one of


the chambers of industry named by the Minister, the


President of a consumer protection association named by


the Minister and three persons with expertise named by


the Minister. The tenure of the members is of 2 years,


renewable once. (See Competition Directorate 10th


Annual Report, 2012).


Lebanon No Competition Law


Morocco Law No. 20-13 of 7


August 2014


concerning the


Competition Council


Chapter II of the composition and organization of the


Competition Council- Article 10: The Council is


composed of the President, 4 Vice-Presidents and 8


Advising Members.


The Council includes, in addition to the President, the


competent members: 2 members of the judiciary, vice-


presidents; 4 members are chosen on the basis of their


competence in economic matters or in competition,


including a vice-chairman; 2 members are chosen based


on their competence in legal matters, including a vice-


chairman; 3 members exercising or having exercised


their activities in the sectors of production, distribution or


services; A member is chosen because of his/her




Good Governance Guidelines: Independence and Transparency




12


jurisdiction in matters of consumer protection. The


President is appointed by dahir for the duration of 5


years, renewable once. The other members of the Council


are appointed for a term of 5 years, renewable only once


by decree, on a proposal of the Higher Council of the


judiciary power, regarding the members of the judiciary


power; other members are appointed by the competent


governmental authority.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of


Competition and Prices


1) Article 13:


The Competition Council is composed of 15


members as follows:


1) A President who will operate full-time, appointed


among magistrates or persons chosen for their


competence in economic matters, in competition or


in consumption and with at least 20 years of


seniority.


2) 2 Vice Presidents:


- An adviser to the tribunal with seniority of at least


ten years as senior vice president exercising his/her


duties full time.


- An adviser to the court of auditors with seniority of


at least ten years as second vice president exercising


his/her duties full time.


3) 4 judges of the Judiciary Board of the second level,


with at least 5 years of experience in commercial


disputes.




4) 4 persons chosen for their expertise in the following


areas:


• Economy


• Law


• Competition


• Consumption




5) 4 persons having experience or engaged in:


• The Industry and Commerce sector


• The Service Sector


• The Agriculture Sector


• The Field of Consumer Protection


The members of the Competition Council referred to in


paragraphs 1, 2 and 3 are appointed for a 5 year non-


renewable term. Council members referred to in


paragraphs 4 and 5 are appointed for a 4 year, non-


renewable term. These designations are made by a


Government decree proposed by the Minister of Trade.


The compensation plan of the Chairman and his/her two


Vice Presidents are set by a Government decree


proposed by the Minister of Trade




Good Governance Guidelines: Independence and Transparency




13


Before exercising their duties, Board members take the


following oath:


"I swear by God to faithfully perform my duties, to


maintain neutrality and not disclose the secrecy of


deliberations."


The oath is taken before the full Council meeting, the


minutes thereof.


Board members undertake to declare their assets in


accordance with the regulations in force.


Members must inform the Chairman of any potential


conflict of interest in order to make necessary


arrangements.









Good Governance Guidelines: Independence and Transparency




14


4. POWERS OF THE
COMPETITION AUTHORITY


Despite the apparent prevalence of autonomous


agencies in many developing countries, the less


favourable economic and fiscal conditions have


exacerbated tensions and brought to light a


number of pitfalls related to the creation of


independent public sector bodies in the context of


a wide gap between resource requirements and


availability. The pitfalls are mainly linked to


shortages of skills, low public sector pay, risks of


corruption and capture by interest groups and


lobbies, tensions between the minister responsible


for the competition policy domain and the


competition authority, and weak accountability.


4.1. Scope of application and
exemptions


Virtually every jurisdiction contains exemptions


from anti-competitive agreement prohibitions. As


various jurisdictions have different forms of


regimes, however, they have differing exemption


and authorization systems. While in many countries


national authorities are granted discretionary


powers to authorize notified agreements, other


legislations only provide for legal exemptions for


specific types of agreements without conferring


upon the competition authority a margin of


discretion. For instance, US antitrust law does not


envisage any possibility of exemption or


authorization by the US Competition Authorities,


and therefore does not provide for a notification


system for anti-competitive agreements. However,


there exist statutory and Court related exemptions


to the United States Antitrust laws7.


Many jurisdictions provide systems for block


and/or individual exemptions. With a block


exemption granted, a certain category of


agreements benefits from an exemption without


any individual assessment. Specified categories of


agreements can be assumed to satisfy the criteria


for exemptions. An example is the case of R&D


and the specialization block exemptions, where the


combination of complementary skills or assets can


produce substantial efficiencies.


On the other hand, a specific exemption can be


granted for individual cases of agreements. In


order to obtain authorization, firms intending to


enter into potentially anti- competitive agreements


would accordingly need to notify the competition


authority of all the relevant facts of the agreement.


In the elaboration of criteria for exemptions, Article


101 (3) TFEU of the European Union can provide a


good yardstick, which has inspired a number of


MENA competition laws. The provision sets four


conditions for an agreement to be authorized:


(a) The agreement must contribute to improving


the production or distribution of goods or to


promoting technical or economic progress – so


called efficiency gains;


(b) At the same time it must allow consumers a


(fair share) of the resulting benefit;


(c) The agreement must not impose on the


undertakings concerned restrictions which are


not indispensable to the attainment of the


objectives; and


(d) Nor give the members of the agreement the


possibility of eliminating competition in respect


of a "substantial part" of the products in


question.


In MENA Project countries listed below, other


similar exemptions exist or can be obtained from


the competition authority or the Minister in charge


of Commerce.




In Algeria, the Competition Council can authorize


certain anti-competitive practices, upon notification


or request for authorization in accordance with


modalities determined by Decree. Exemptions may


also be provided under other laws and regulations,


as far as such agreements can be demonstrated to


provide economic or technical progress, to benefit


employment, or to allow SMEs to strengthen their


competitive position on the market (Article 9).


Moreover, concerning M&As, a concentration


which has been prohibited by the Competition


Council may be authorized by the Government,


upon advice from the Minister of Commerce and


the Minister in charge of the sector concerned


(Article 21).


In Egypt, public utilities managed by the State are


exempted from the application of competition law.


As for public utilities managed by private interests,


they may obtain an exemption upon request,


provided they comply with conditions set by the


Executive regulation of the Competition Law


(Article 9).


In Jordan, the Competition Law provides for


temporary exemptions in emergency situations, but




Good Governance Guidelines: Independence and Transparency




15


also more permanent exemptions, if the parties can


demonstrate that the agreement leads to positive


results, including the improvement of the


competitively of Enterprises, or


production/distribution systems, or providing


certain benefits to the consumer (Article 7 A and B).


Also, a general de-minimis rule exempts


agreements affecting less than 10% of the


domestic market.


In Morocco, Article 9 of the competition Law


provides for exemption of practices resulting from


the application of other laws and regulations. Also,


practices which can be demonstrated to provide


economic or technical assistance, to benefit


employment, or to allow SMEs to strengthen their


competitive position on the market, while providing


part of the benefits to consumers and not


eliminating competition in respect of a substantial


part of the products in question, can be authorized.


Article 9 also provides for a "de-minimis"


exemption by the Competition Council, of


agreements "of minor importance" among SMEs or


farmers.


Finally, in Tunisia, essential goods and services


are exempted from Competition Law, as well as


monopolies and regulated sectors (Article 3). The


list and prices of regulated goods and services are


fixed by Decree. In addition, temporary measures


can be taken, in case of emergency situations


resulting in price peaks (Article 4). Exemptions may


also be granted by the Minister in charge of


Commerce, after advice of the Competition


Council, provided such agreements contribute to


economic or technical progress while affording


customers a fair share of the resulting benefits


(Article 6).






Algeria Ordinance No. 03-


03 of 19 July 2003


on Competition


Article 8: The Competition Council may find, upon request of


interested companies, that there is no need for, according to


the elements in its possession, its intervention in respect to


an agreement, concerted action, agreement or practice as


defined in Articles 6 and 7 above. The procedures for


introducing the application benefit from the provisions of the


preceding paragraph are determined by decree.


Article 9: The agreements and practices that result from the


application of a statute or a statutory instrument made


hereunder are not subject to the provisions of Articles 6 and


7. The agreements and practices whose authors can prove


that they have the effect of ensuring an economic or


technical progress, or that they contribute to improving


employment, or that they allow small businesses to


consolidate their competitive market position are authorized.


The agreements and practices that have been authorized by


the Competition Council may not benefit from this provision


Article 21: When the public interest so warrants, the


Government may, upon report of the Minister of Trade and


Minister responsible for the sector concerned by the


concentration, allow motion or at the request of the parties


concerned, the achievement of a concentration rejected by


the Competition Council.


Egypt Law No.3 of 2005


on Protection of


Competition and


Prohibition of


Monopolistic


Practices +


Amendments to


Laws 190/2008


Article 9: The provisions of this Law shall not apply to public


utilities managed by the State. The Authority may, upon the


request of the concerted parties, exempt some or all the acts


provided for in articles 6, 7 and 8 regarding public utilities


that are managed by companies subject to the Private Law


where this is in the public interest or for attaining benefits to


the consumers that exceed the effects of restricting the


freedom of competition. This shall be done in accordance


with the regulations and procedures set out by the Executive




Good Governance Guidelines: Independence and Transparency




16


and 193/2008 Regulation of this Law.


Jordan The Competition


Law No.33 of 2004


+ Amendment to


Law No.18 of 2011


Article 7: (A) Practices arising out of the application of a Law


and practices falling within the ambit of temporary measures


instituted by the Council of Ministers to deal with exceptional


circumstances, emergency situations or natural disasters


shall not be considered anti-competitive in the sense


intended in Articles 5 and 6 of this Law, provided that such


measures be reviewed within a period not exceeding six


months after the beginning of the application thereof. (B)


Practices and arrangements exempted by the Minister from


the application of Articles 5 and 6 of this Law by a reasoned


decision on the basis of a recommendation of the Director


shall not be considered anti-competitive if they lead to


positive results, with a common benefit that cannot be


achieved without this exemption, including the improvement


of the competitiveness of Enterprises, or production or


distribution systems, or providing certain benefits to the


consumer. (C) (…)


Lebanon No Competition


Law




Morocco Law no. 104-12 on


Freedom of Prices


and Competition


Article 9: Not subject to the provisions of Articles 6 and 7


mentioned above, the following practices: 1) resulting from


the application of a statute or a statutory instrument made


hereunder; 2) whose authors can prove that they have the


effect of contributing to economic progress and/or


technique, including creating or maintaining jobs, allowing


consumers a fair share of the resulting benefit without giving


the undertakings concerned the possibility of eliminating


competition in a substantial part of the goods, products and


services in question. These practices must not impose


restrictions on competition in so far as they are necessary to


achieve this progress. Certain categories of agreements and


certain agreements, particularly when they are intended to


improve the management of small and medium enterprises


or marketing by farmers for their products, may be


recognized as satisfying the conditions laid down in the first


paragraph above by the administration after approval of the


competition Council are also not subject to the provisions of


Articles 6 and 7 above the agreements of minor importance


which do not appreciably restrict competition, in particular


agreements between SMEs. The criteria describing what is


not an appreciable restriction of competition shall be fixed by


regulation.


Palestine No Competition


Law




Tunisia Law No. 2015-36


of 15-09-2015 on


the Reorganization


of Competition


and Prices


Article 3:


Are excluded from the regime of free prices referred to in


Article 2 above, essential goods, products and services or


related sectors or areas where price competition is restricted


in terms of a monopoly or lasting difficulties of market supply


or by operation of law or regulations.




Good Governance Guidelines: Independence and Transparency




17


The list of these goods, products and services, and the


terms and conditions for establishing their cost and selling


prices are set by Government decree.


Article 4:


Notwithstanding the provisions of section 2 of this Law, and


in order to deal with excessive increases or a price collapse,


temporary measures motivated by a crisis or calamity by


exceptional circumstances or a situation manifestly abnormal


in the market within a particular sector, may be taken by


order of the Minister of Trade and whose application period


may not exceed six months.


Article 6:


Are exempt from the provisions of Article 5 of this Act,


agreements, practices or classes of contracts whose authors


warrant that they are essential for ensuring technical or


economic progress, and they provide users with a fair share


of the resulting benefit, provided they do not result in:


1) Imposing restrictions which are not indispensable to


achieve the objectives; and


2) Completely eliminating competition in the relevant market


or in a substantial part of that market.




This exemption is granted by order of the Minister of Trade


after consultation with the Competition Council and


published in the Official Journal of the Tunisian Republic.




The Minister for Trade may determine the duration of the


exemption or submit to a periodic review. It may withdraw


the exemption in case of non-compliance by the parties


concerned of the conditions for granting it.




The procedures for submitting applications for exemption


and the duration thereof are determined by governmental


decree on proposal of the Minister of Trade after consulting


the Competition Council.




4.2. Prescription of anti-competitive
laws


The shorter the prescription of the anti-competitive


laws, the lesser the powers of the competition


authority to be able to take action against them


once they have ceased.


Of the MENA countries having competition law,


only Morocco and Tunisia were found to provide


for prescription of anti-competitive laws. In both


countries, such practices are not actionable after a


legal period of 5 years. It is interesting to note that


in Tunisia, the law which has been superseded by


the 2015 law had a three-year prescription limit,


which has proven to be too short. It is also


noteworthy that the Moroccan law adds that the


prescription is absolute only after 10 years have


passed after the anti-competitive practice was


abandoned and the Competition Council did not


take action.















Good Governance Guidelines: Independence and Transparency




18


Algeria Not Found


Egypt Not Found


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


Not Found


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council*


Article 23: The Competition Council may seize or be


referred to facts dating back more than 5 years if it during


this period any act tending to their research, their findings


or their sanction were done. (...) However, there shall be a


prescription in any case where a period of 10 years from


the termination of the anti-competitive practice has


elapsed without the Competition Council having ruled on


it.


Palestine No Competition Law


Tunisia Law No. 2015-36 of 15-


09-2015 on the


Reorganization of the


Competition and Prices


Article 15 (...): are prescribed measures relating to anti-


competitive practices dating back more than 5 years.




4.3. Scarcity of adequate skills8


One of the key short-to-medium term challenges in


setting up independent competition authorities in


developing countries is attracting staff with


adequate skills or the potential to rapidly acquire


required skills. Fiscal constraints and competing


developmental priorities often mean that


Governments do not have the necessary flexibility


to address the underlying causes (such as


problems in the educational system) from the


limited pool of human resources in a systematic


and sustainable manner.


In addition, under structural adjustment


programmes, and other public sector reforms,


many developing country Governments were


preoccupied with the need to streamline public


expenditures and reduce the size of the public


sector as a means of managing fiscal deficits and


complying with IMF and other requirements. Under


these circumstances, creating competition


authorities within Government ministries was often


seen as the more affordable option allowing


Governments to make use of skills already


available in the public sector and in which the


Government had already invested, while


maintaining central levels of employment


protection.


The general shortage of skills affects not only the


competition authority but also the judiciary and


legislature. Since competition enforcement is not


undertaken in a vacuum, this renders competition


advocacy by the authority a critical factor in


gaining credibility. For instance, it is sometimes


argued that the competition authority is better able


to position itself and exert optimal influence on


competition policy if it shares a close relationship


with Government rather than remaining at arm’s


length with a high degree of independence.


A related problem is the dearth of independent


local expertise that developing country competition


authorities can call upon from time to time to


supplement in-house skills, which might be


particularly relevant when undertaking, for example,


market inquiries or complex investigations.


Resource constraints seldom permit the buying-in


of international consultants. Also, academic


professors sufficiently versed in competition


economics and law are few and the majority of


experts in the legal community are often those who


act on behalf of defendants in a competition case,


and which get much higher remuneration for their


work from companies in the private sector, which


might easily influence their point of view.




Good Governance Guidelines: Independence and Transparency




19


The possibilities of recruiting and retaining highly


qualified personnel in the public service, and


especially in specialized areas such as competition


enforcement, is thus negatively affected. Capable


civil servants will tend to exit the public sector


when their training and qualifications make them


attractive to potential private sector employers. In


order to find a way around these problems,


independent bodies such as competition


authorities are sometimes given exceptions from


the civil service regime to offer higher salary scales


as well as other attractive benefits. However, this


may not be a sustainable strategy given that these


special privileges are still funded through fiscal


revenues.


It is often possible for independent competition


authorities to supplement their budgets by levying


fees for their services, such as filing fees and


service fees for control of mergers. For various


reasons – such as inadequate accounting and


control measures, risk of fraud and corruption or a


general reluctance to introduce what might


constitute a differential tax on segments of society


for public services, some Governments are


cautious of permitting independent bodies to raise


funds from alternative sources.


Competition authorities in developing countries are


often caught in a vicious cycle whereby funding


shortfalls affect not only their ability to carry out


enforcement activities but also their ability to


monitor the impact of their activities, and thus


marshal the necessary proof of their worth and


raise their credibility, facilitate accountability and


provide justification for increased funding.


The onus is often entirely on the competition


authority to establish credibility, not only with the


general public but also with the Government. In


this context, initial direct political backing for


competition enforcement often sets the tone for


the development of future relations between the


competition authority and the authorizing


environment.


The empirical evidence as to whether low public


sector pay fosters corruption is mixed and theory


does not predict that higher pay will always reduce


corruption. Competition enforcement, particularly


in jurisdictions that draw members of the board of


commissioners from the private sector on a part-


time basis, raises some tricky issues relating to


members’ impartiality and independence.


Concerns revolve around the ability of part-time


board members holding senior positions in private


companies to attain and maintain desirable levels


of objectivity and the Government–industry


revolving door. This is a problem also for


developed countries, but in smaller and poorer


economies these concerns take on a particular


significance because there is a relatively smaller


pool of individuals of sufficiently high standing to


choose from.


There is also a greater probability of the


appointment of individuals from large companies


that are dominant in the economy and as such, are


potentially more likely to fall foul of competition law.


The omnipresence of large multinationals in this


group adds a further wrinkle to the problem. Even


where there are no incidences of impropriety, in the


absence of ministerial oversight and effective


accountability mechanisms, it can be difficult to


manage public perceptions. For obvious reasons,


competition policy in developing countries can


sometimes be an emotive issue and questions of


“fairness” often arise. Some things may be judged


“unfair” by the public even if they are economically


efficient.


4.4. Possible tensions between the
related Ministry and the
Competition Authority9


Tensions may arise from time to time as a result of


insufficient clarity on the respective roles and


responsibilities of the minister and the


management of the competition authority, on how


the competition authority is to be responsive to


political direction, and on issues related to the


streamlining of public expenditures for which the


minister or another Government department may


be held accountable.


In addition, the exceptions afforded to an


independent competition authority from the usual


civil service pay scales can create resentment


between staff on the public payroll of the ministry


as opposed to those of the competition authority.


Such disparities can foment discontent and can be


upsetting to relations between the management of


the competition authority and senior ministry


officials.


4.5. Discretion to set priorities10


The degree of freedom with which the competition


authority has in its daily business of enforcing


competition law and taking decisions is usually




Good Governance Guidelines: Independence and Transparency




20


interpreted to mean that the competition authority


is not subject to routine direct supervision by


Government and has been granted all the


necessary power to fulfill its tasks. Such an


authority would thus have the discretion to set its


own priorities as to the identification and


investigation of competition cases and the pursuit


of competition complaints. It would also have the


discretion to decline to investigate cases where it


considers the motives of the complainant to be


suspect. In this context, ministerial departments


are constrained because they would be subject to


ministerial priorities and political interference.


MENA Project countries having competition law


offer highly differing degrees of de-jure


independence in theirs day to day work. As can be


seen below:


In Algeria, the law provides that the Competition


Council has decision-making powers, including the


possibility to make proposals and advise at its own


initiative or upon request by the Minister in charge


of commerce or of any other interested party, to


regulate efficient competition on the market.


In Egypt, the 2014 Amendments to the Law have


endowed the ECA Board with the power to initiate


criminal lawsuits and to settle with violators.


In Jordan, the Competition Directorate is part of


the Ministry of Industry and Trade, and the


Competition Affairs Committee is chaired by the


Minister. Hence, the actual day to day


independence of the competition authority is very


limited.


In Morocco, the Competition Council has strong


decision-making power with respect to anti-


competitive practices and the control of economic


concentrations. Its independence is guaranteed by


the Constitution. It may also give advice on


competition-related matters upon request by the


Minister, sector regulators and other constituencies,


and can undertake studies on the general climate


of competition in the country, or in specific sectors


of the economy.


In Tunisia, the new law has considerably


strengthened the independence of the Competition


Council, as the Minister is no longer authorized to


exempt anti-competitive practices without prior


consultation with the Council. Another important


development is the fact that now the Competition


Council will mandatorily have to be consulted on all


draft legislation which might restrain competition or


entry into a market or a profession.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


*Article 34 (amended by Law 08-12):


The Competition Council has power of decision, proposal


and opinion that it exercises on its own initiative or at the


request of the Minister of Trade or any other interested


parties, to promote and ensure by all appropriate means,


the efficient regulation of the market and to stop any


action or disposition such ensuring the proper functioning


of competition (...).


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008 and 2014


Amendments


Article 21: Criminal lawsuits or any procedure taken


therein shall not be initiated in relation to acts violating


the provisions of this Law, unless a request of the


Competent Minister or the person delegated by them is


presented.*


The Competent Minister or the person delegated by them


may settle with regard to any violation, before a final


judgement is rendered, in return for the payment of an


amount not less than double the minimum fine and not


exceeding double its maximum.


The settlement shall be considered a waiver of the


criminal lawsuit filing request (…).


* The 2014 Amendments to the Law have endowed the


ECA Board with the power to initiate criminal lawsuits and




Good Governance Guidelines: Independence and Transparency




21


to settle with violators.


Jordan The Competition Law


No.33 of 2004 +


Amending Law No. (18)


of 2011


All powers rest with the Ministry of Industry and Trade


(See Competition Directorate, 10th Annual Report, 2012).


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council *


Chapter 1*: The responsibilities of the Council- Article 2:


The Council has a decision-making authority in the field


in the fight against anticompetitive practices and


operations control of economic concentration, such as


defined in the Law on the freedom of prices and


competition.


It is also called upon to give its opinion on the requests


for consultation, such as provided by this Law and by the


Law on the freedom of prices and competition and to


publish studies on the general climate of competition on


the national and sectoral levels.


Palestine No Competition Law


Tunisia Law no. 36 of 15


September 2015 on the


Reorganization of


Competition and Prices


Article 8:


The Minister for Trade may, optionally together with the


Minister responsible for the sector concerned, take any


precautionary measure to ensure or restore the


conditions for acceptable competition, and after


consultation with the Competition Council, which must


communicate its notice within three days.


Article10:


Following the notice of the Competition Council, the


Minister for Trade may by reasoned decision:


1) Allow the merger under the conditions proposed by the


undertakings concerned;


2) Allow the merger and impose on the undertakings


concerning the implementation of commitments to


rebalance the expected economic progress and harm to


competition: and


3) Reject the operation.


(...).


Article 11: (...) The Competition Council is called to


understand the related queries on anticompetitive


practices as provided for by Article 5 of this law and to


provide notices on consultation requests.


The Council must be consulted on laws and regulations


project to directly impose special conditions for the


exercise of an economic activity or profession or to


establish restrictions that impede access to a given


market.


The procedures and conditions of the mandatory


consultation are set by Government decree.


Parliamentary committees, Minister of Trade and sectoral


regulatory authorities may consult the Competition




Good Governance Guidelines: Independence and Transparency




22


Council on issues related to the field of competition.


Professional and trade union organizations, consumer


organizations legally established and chambers of


commerce and industry may also require the Council's


notice on competition issues in the areas under their


jurisdiction. A copy of the consultation request and the


notice of the Competition Board thereon are necessarily


reported to the Minister of Trade.


The Minister of Trade shall submit any proposed


concentration or any concentration referred to in Article 7


of this Law of the Competition Council which must give


its notice within sixty days from the date of receipt of the


request for a notice. After this period, and in case the


Board does not give its notice on the projects or mergers


referred to in Article 7 of this Law, the Minister of Trade is


entitled to exercise his/her prerogative as referred to in


section 10 of this Act.




4.6. Prior consultation of the
competition authority on draft
laws and regulations11


In addition to enforcement functions, competition


authorities have advocacy responsibilities. Other


than business and the general public, Government


as a whole (including other regulatory bodies) is a


key target of competition advocacy, particularly as


it relates to the shaping of competition policy and


bringing about market-friendly reforms throughout


the economy. Accordingly, the ability of a


competition authority to freely comment on and


recommend improvements in public policy,


regulation and legislation is another attribute by


which the operational independence of competition


authorities is assessed.


Many laws give competition authorities the


responsibility to advise the Government on the


impact on competition of proposed new laws and


regulations. For example, in India, the Government


has the option to seek the Commission’s notice


when considering competition policy matters.


However, the notices of the Commission are not


binding on the Minister.


In Algeria, Law No.08-12of 25 June 2008 Article


36 provides that the Competition Council must be


consulted on any draft law or regulation related to


competition, or having effected restrictions on


access to markets or professions.


In Egypt, 2014 Amendments impose a mandatory


obligation for prior-consultation of ECA (the


Egyptian Competition Authority) on draft laws and


draft regulations that are likely to harm competition.


In Jordan, the Competition Directorate may be


requested by the Minister to give a notice on draft


laws, regulations, and agreements related to


economic matters in general, and competition in


particular. The advisory role of the Competition


Directorate has direct impact on insuring non-


conflict of new legislation with competition law and


policy and taking into account the effects on


competition in the market when governmental


decisions and procedures are taken.


In Morocco, the Competition Council is


mandatorily consulted (Law No 20-13 of 7 August


2014).


In Tunisia, new Law No.35 of 15 September 2015,


makes it mandatory that the Minister must consult


the Competition Council on all new proposals for


legislation that might restrict entry to a market or to


a profession, or which in any manner, could


restrain competition.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Article 36*: The Competition Council is consulted on all


legislative and regulatory text projects that link with


competition or introductory measures that might


particularly make the exercise of a profession or activity,




Good Governance Guidelines: Independence and Transparency




23


Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


or access to a market with quantitative restrictions;


Establish exclusive rights in certain areas or activities;


Establish specific conditions for the exercise of


production, distribution and services; Establish uniform


practices in terms of sale.


Article 37*: The Competition Council may undertake all


necessary actions within its field of competence including


any investigation, study and expertise.


(...) When the inquiries made concerning the applicability


of the laws and regulations that link to competition reveal


that the implementation of these texts give rise to


restrictions on competition, the Competition Council


urges all adequate actions to end these restrictions.


Egypt 2014 Amendment to


Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008


2014 Amendments impose a mandatory obligation for


prior-consultation of ECA (the Authority) on draft laws and


draft regulations that are likely to harm competition.


Jordan Law No. 33 of 2004 on


Competition +


Amendment to Law no.


18 of 2011


The advisory role of the Competition Directorate has


direct impact on ensuring non-conflict of new legislation


with Competition law and policy and taking into account


the effects on competition in the market when


governmental decisions and procedures are taken. (See


Competition Directorate, 10th Annual Report, 2012).


Lebanon No Competition Law


Morocco Law 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council *


Article 7*: The board must be consulted by the


Government on legislation or regulation projects


establishing a new plan or changing a regime that has the


following direct effects: 1) to submit the exercise of a


profession or its access to a market to quantitative


restrictions; 2) to establish monopolies or other


proprietary specialized in the territory of Morocco or in a


substantial part thereof; 3) to impose uniform practices


on prices or conditions of sale; and 4) to grant state aid to


local authorities in accordance with the relevant


legislation.


Palestine No Competition Law


Tunisia Law no. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article 11: (...) The Council must be consulted on the laws


and regulations projects to directly impose special


conditions for the exercise of an economic activity,


profession, or to establish restrictions that hinder access


to a market.


The procedures and conditions of the mandatory


consultation are set by Government decree.


(...).





Good Governance Guidelines: Independence and Transparency




24


4.7. Relations with sectoral
regulators


Competition authorities and sector regulators


coexist under various conditions. In developing


countries, the sectoral regulator is usually pre-


existing to the competition authority. In addition,


among its powers, the sectoral regulator is in


charge of ensuring "fair and equitable" competition


within its sector. Hence, in most cases, the


sectoral regulator is not keen to share any of its


powers with the competition authority. The best


that can be expected is that the two authorities


sign MOUs and information-exchange agreements,


relating to cases under investigation.


In Algeria, Morocco and Tunisia, the law stipulates


that the Sectoral regulator may approach the


Competition authority for advice. In reverse, when


the Competition Council of Algeria investigates a


sector which is regulated, it has 30 days to inform


the sectoral regulator (Algeria, Law No. 08-12 of 25


June 2008 amending Ordinance No.03-03 of 19


July 2003 on competition).


In practice, however, this is rarely the case. In


Morocco, for example, the Telecommunications


regulator and the Port Authority are reported to


have declined the Competition Council’s MoU


proposal. The Central Bank and the Press (ARCA)


on the other hand, have accepted to sign a


cooperation agreement, but the MoU has not been


implemented thus far.


The Egyptian Competition Authority (ECA)


concluded an MoU with the National Telecom


Regulatory Authority (NTRA) in June 2011 with


regard to the sectoral overlap that exists between


the two regulators.12 This MOU aims at tracing the


boundaries between the two agencies where


carrying out a competition investigation in the


telecommunication sector. Furthermore, the said


MOU tends to coordinate the enforcement efforts


undertaken by each Agency in the aforementioned


sector and to ensure consistency in the analysis


performed by each agency.


In Jordan, for the purpose of guaranteeing the


freedom of competition, government authorities


and sectoral regulatory bodies were vested with


monitoring any economic concentration operations


and are requested to obtain the notice of the


Ministry in writing.


The new Tunisian Law stipulates that, among those


entitled to request the advice of the Competition


Council, the sectoral regulators (autorités de


régulation) have the possibility to approach the


Council. On the other hand, when the Competition


Council, on its own volition, launches an inquiry


which relates to a regulated sector, it informs the


regulator. The Competition Council must also


request the technical advice of the sectoral


regulator when the Council investigates that


particular sector.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


+ Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


*Article 39: When the Competition Council is referred to


for a matter relevant to an industry under the jurisdiction


of a regulatory authority; it shall forward a copy of the file


to the authority of regulation concerned to formulate its


opinion within a period not exceeding 30 days.


Egypt 2014 Amendment to


Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


Not Found


Jordan Law No. 33 of 2004 on


Competition +


Amendment to Law no.


18 of 2011


Article 12: (…) C- For the purpose of guaranteeing the


freedom of competition by virtue of the provisions of this


Law, Government authorities and sectoral regulatory


bodies vested with monitoring any economic


concentration operations by virtue of legislation specific




Good Governance Guidelines: Independence and Transparency




25


thereto shall obtain the notice of the Ministry in writing


within the limits of its jurisdiction stipulated in the Law.


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council *


Article 5*: (...) (...) It may also give its opinion on any


question of principle concerning competition, at the


request of local authorities council (...), the sectoral


regulatory authorities or consumer associations (... )


within the limits of the interest their responsibilities.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article15:


The queries are referred to the Competition Council by:


a) The Minister for Trade or any person delegated for


this purpose;


b) Economic enterprises;


c) Professional and trade union organizations;


d) Legally established consumer organizations;


e) The Chambers of commerce and industry;


f) Regulatory authorities; and


g) Local authorities.


The Competition Council may, upon report of the General
Rapporteur and after requesting written submissions of
the Government Commissioner, be referred to for anti-
competitive practices on the market. The Chairman shall
inform the Minister of Commerce and, if applicable, the
relevant regulatory authorities of the self-referral. The
Minister for Trade informs the council of investigations
underway by the department.
The Competition Council should also request the
technical opinion of the regulatory authorities during the
examination of applications, before it, and that relating to


the areas under their jurisdiction. (...).











Good Governance Guidelines: Independence and Transparency




26


5. TRANSPARENCY AND
ACCOUNTABILITY13


Beyond making their annual reports and final


decisions available to the public, there are seldom


means for competition authorities in developing


countries to have direct consultation with or obtain


feedback from citizens. Some competition


authorities only recently have acquired the


resources to construct and maintain up-to-date


websites. In this context, developing countries are


willing to undergo voluntary peer reviews of


competition enforcement regimes, such as that of


UNCTAD, the OECD and others, which serve not


only as a mechanism for assessing enforcement


impact and identifying areas for improvement, but


also as an independent instrument of


accountability.


On a day-to-day basis, the competition authority is


accountable to its immediate constituencies – the


private sector, including foreign investors and their


customers and consumers. Moreover, as


enforcement decisions of competition authorities


have a widespread impact on the economy as a


whole, competition authorities are also


accountable to the Government and the general


public, academic circles and other interested


parties such as the media. Last but not least,


competition authorities are subject to scrutiny for


performance (outputs) from public auditors and


donors. In this context, transparency is a key facet


of accountability.


Access to information is a critical dimension to


enabling various stakeholders to play their


governance role effectively. To this end, it is


common across all jurisdictions for competition


authorities to make their final decisions – including


the normative standards or guidelines that govern


the investigative and decision-making functions of


the authority – readily available to all stakeholders,


usually through their websites and the press.


In the light of bilateral cooperation on enforcement


activities and the emergence of international


competition networks, competition authority peers


reviews, increasingly constitute an additional layer


of accountability, although this level of


accountability can be viewed as “soft”


accountability. Stakeholder surveys and peer


reviews are examples of accountability instruments


in this connection.


5.1. Publication of information


In all the MENA Project countries which have


competition law, an effort is made to maximise


transparency by requesting the competition


authority or its related ministry to publish all


decisions and advices rendered, as well as issuing


and publishing an annual report on the activities of


the competition authority.


In Algeria, the Competition Council submits its


annual activity report to the judiciary, the Head of


Government and to the Minister in charge of


Commerce. The Annual report is published in the


Official Bulletin of Competition as provided for by


article 49 of Ordinance No 03-03 of 19 July 2003


on Competition. It may also be published in part or


in full on any appropriate information support


system. Moreover, amending legislation No 08-12


of 25 June 2008 provides that the decisions of the


Competition Council, the Court of Algiers and the


Council of State on competition matters are


published by the Competition Council in the Official


Bulletin for Competition. The law provides that


extracts of decisions and other information can be


published on any information support system.


In Egypt, Article 11 (9) of the competition law


provides for publishing by the Egyptian


Competition Authority (ECA) of periodicals


containing decisions, recommendations,


procedures and measures adopted and pursued


by ECA, as well as other matters relating to its


work. Article 11 (10) requests ECA to prepare an


Annual Report on its activities and its future plans


and recommendations, to be submitted to the


Competent Minister upon its approval by the Board


of Directors, and a copy of the annual report to be


sent to the People’s Assembly and the Shura


Council. Finally, Article 24 provides that final


judgements of conviction regarding cartel


agreements, vertical anti-competitive practices and


abuses of dominant power be published in the


Official Gazette and in two widespread daily


newspapers, at the guilty party’s expenses.


In Jordan, with respect to concentrations, the


Minister of Industry and Trade is requested to issue


a reasoned decision within a maximum period of


100 days after issuing the notice evidencing the


completion of a merger application. In all cases the


decision or summary thereof must be published in


at least two local daily newspapers. With respect


to anti-competitive practices, the verdict of the


Court or a summary thereof must be published at




Good Governance Guidelines: Independence and Transparency




27


the expense of the violator at least in two local


newspapers. The text of the verdict must contain a


statement of the facts and an analysis of the


practices and their effect on the flow and balance


of market mechanisms, and the extent of the risk


thereof. Finally, the Minister is requested to present


an annual report on the State of Competition to the


Council of Ministers.


In Morocco, Law No 20-13 of 7 August 2014


provides that the Competition Council prepares


each year by June 30th, its activity report and


submits it to the King and the Head of Government


(Article 23), before it is published in the Official


Bulletin. The decisions and advice rendered by the


Competition Council are annexed to the Council’s


Annual report.


In Tunisia, the new law increases transparency


significantly, as the Competition Council is


requested to publish its decisions and advice


rendered on its official website, without having to


wait for publication of its Annual Report. On the


other hand, the Minister in charge of Commerce is


requested to obtain the Competition Council’s


advice before publishing a motivated exemption to


the competition law in the Official Journal of the


Tunisian Republic. Finally, with respect to


concentrations, the decision of the Minister in


charge of Commerce to authorize, reject or accept


a merger under certain conditions must be


publicized and motivated, after advice of the


Competition Council. As can be seen below, an


important effort to maximize transparency of all


decisions and advice rendered by the Competition


Council, decisions of the Minister in charge of


Commerce and of the Courts is made in the new


Tunisian Competition Law in Article 10 (mergers),


Article 14 (Annual Report and data base on


Competition to be exchanged with other State


administrations), Article 27 (anti-competitive


practices and concentrations), Article 45 (sanctions


imposed by a Court), Article 50 (illicit price


increases) and Article 58 (publication of decision of


the Court).






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental


Ordinance No.03-03 19


July 2003


Article 27: The Competition Council addresses an annual


report of the activity to the legislative body, the Head of


Government and the Minister for Trade. The annual report


is published in the official bulletin of competition under


Article 49 of this Ordinance. It may also be published in


full or in excerpts on any other appropriate information


media.


*Article 49: The decisions of the Competition Council, the


Court of Algiers, the Supreme Court and the State


Council on competition are published by the Competition


Council in the official bulletin of the competition. Extracts


of the decisions and other information may also be


published on any other information medium. (...).


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008


Article 11 (9) : Issuing periodicals containing decisions,


recommendations, procedures and measures adopted


and pursued by the Authority as well as other matters


relating to the Authority.


Articles 8 and 9: Preparing an Annual Report on the


activities of the Authority and its future plans and


recommendations to be submitted to the Competent


Minister upon its approval by the Board of Directors. A


copy thereof shall be sent to the People’s Assembly and


the Shura Council.


Article 24: Final judgements of conviction regarding the


actions stipulated in Article 22 of this Law shall be


published in the Official Gazette and in two widespread


daily newspapers, at the guilty party's expense.




Good Governance Guidelines: Independence and Transparency




28


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


Article 11 C: The Minister shall issue his/her reasoned


decision regarding the economic concentration operation


within a period not exceeding 100 days starting on the


date of issuing the notice evidencing the completion of


the application.


Article 11 B: (…) In all cases (…) the decision or a


summary thereof shall be published in at least two local


daily newspapers.


Article 12: (…) B- The Minister shall present to the


Council of Ministers an Annual Report on the state of


competition.


Article 18: (…) B- The Court may order its verdict or a


summary thereof to be published at the expense of the


violator in at least two local newspapers.


Article 18 C- The text of the verdict must contain a


statement of the facts and an analysis of the practices


and their effect on the flow and balance of market


mechanisms, and the extent of the risk thereof.


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


concerning the


Competition Council *


Article 23*: The Board shall each year, before 30 June,


establish a year's activity report that the past chairman of


the board submits to His Majesty the King and addresses


the Head of Government.


The decisions and notices of the Board, except as


provided in Article 41 of the aforementioned Law No.


104-12, is attached to this report. The annual report is


published in the "Official Bulletin".


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article10:


Following the notice of the Competition Council, the


Minister for Trade may by reasoned decision:


1) Allow concentration (...);


2) Allow the merger and impose on the undertakings


concerned the implementation of commitments to


rebalance the expected economic progress and harm to


competition;


3) Reject the operation; and


In all cases described in the first paragraph the judgment


or an extract of the decision is made public.


Article 14:


(...) The Competition Council must prepare a report on its


annual activities to be submitted to the President of the


Assembly of People's Representatives and the head of


Government. The Board may include in this report


recommendations for improving the competitive


functioning of markets.


In partnership with the competent services of the Ministry


of Trade, the Board shall:


1) The development of a database on the state of the




Good Governance Guidelines: Independence and Transparency




29


market and the information collected by the Board on the


occasion of the inquiries and investigations and may be


exchanged with the rest of the state services, and


2) The implementation of programmes and plans of


awareness and promotion of competition culture,


The Competition Council shall publish its decisions and


notices on its website.


Article 27:


The Competition Council may, where appropriate:


1) Issue directions to the operators concerned to end


anti-competitive practices within a specified period or


impose special conditions in the exercise of their activity;


2) Order the temporary closure of the offending


establishments or for a period not exceeding three


months. However, the reopening of those particular


institutions can only occur after they have terminated the


practical purpose of sentencing; and


3) Forward the file to the prosecutor in order to initiate


criminal proceedings.


The Competition Council may, in case of abuse of a


dominant position resulting from a case of concentration


of businesses, propose to the Minister responsible for


trade to order if necessary in conjunction with the


Minister whose sector is interested by reasoned decision,


to the company or group of companies involved, alter,


amend or terminate all agreements and all acts which


enabled the concentration allowing the abuse,


notwithstanding the procedures laid down in Articles 7


and 9 of this Act.


The Competition Council may order the publication of its


decisions or extract thereof in newspapers designated,


and this at the expense of the convicted.


Article 45:


(...) Shall be punished by imprisonment of sixteen days to


one year and a fine of 2,000 dinars to 100,000 dinars or


one of these penalties, any person who, by devious


means, has had a decisive role in the violation of the


prohibitions imposed by Article 5 of this Law.


The court may also order that its decision be published


full or in part in the newspapers designated by the


expense of the condemned. It can also order under the


conditions defined in section 51 of this Law, the display


and / or advertising by any other means, of its decision.


Article 50:


In cases of illegal price increase or practices of unlawful


price as defined in Articles 39, 40 and 41 of this Law and


without prejudice to the penalties imposed by the courts,


the Minister for Trade may order the closure for a period


up to one month or institutions subject of the offense.


The Minister for Trade may, as provided by section 42 of


this Law, decide to suspend or revision of the quota of


subsidized products or revision of the subsidy regime or




Good Governance Guidelines: Independence and Transparency




30


closing or premises where offense was committed and


for a maximum duration of one month.


The Minister for Commerce may also order the display


and insertion in newspapers designated or publication by


any means of the decision pronouncing the sanctions


provided for in paragraph 1 and 2 of this article.


Article 58:


The competent court may order that its decision be


published full or in part in the newspapers designated


and posted in conspicuous places in nature that implies,


including the main gates of factories or workshops


sentenced to storefront his/her store, all at the expense of


the convicted.




5.2. Confidentiality


While the competition authority is encouraged to


ensure maximum transparency and accountability


of its activity and decisions, it is important that in


so doing, licit business secrets are not leaked to


interested parties of a case, who might then use


such confidential information for their own


professional advantage. It is therefore important for


the members and employees of a competition


authority to be bound by professional secrecy with


respect to all insider and confidential information


they may come across during their official duties,


and in addition, in its publications, the authority


should avoid publicizing confidential business


secrets, such as, for example, market shares of


competitors, their plans and projects of innovation,


entering into potential markets, etc.


For these reasons, as can be seen below, most


competition laws of MENA Project countries


contain provisions dealing with these issues.


In Algeria, the law provides for an obligation for


members of the Competition Council to ensure


professional secrecy. Moreover, in order to protect


business secrets, the president of the Competition


Council may upon request, restrict confidential


information, which are then withdrawn from the file.


However, the subsequent decisions of the


Competition Council cannot be based on


information which has been withdrawn from the file.


In Egypt and Jordan, the laws concern


confidentiality of deliberations and non- disclosure


of insider information, while in Morocco and


Tunisia, the Competition Council and officers are


required to keep secret the discussions of cases


and enquiries, but also, as in Algeria, the president


of the Council may, upon request, withhold


legitimate business secrets from public information.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition + Law No.


08-12 of 25 June 2008


Amendment to and


Supplemental Ordinance


No.03-03 19 July 2003


Article 29: No member of the Competition Council can


deliberate in a case in which they have an interest or have a


kinship up to the fourth degree with one of the parties or,


represents or has represented one of the interested parties.


The members of the Competition Council are bound by


professional secrecy. (...).


Article 30: (...) The interested parties and the minister's


representative for Commerce are entitled to access to the file


and obtain a copy. However, the president may refuse, on its


own initiative or at the request of interested parties, the


disclosure of parts or materials involving business secrets. In


this case, these parts or documents are removed from the


file. The decision of the Competition Council may not be


based on the parts or materials withdrawn from the record.




Good Governance Guidelines: Independence and Transparency




31


Egypt Law No.3 of 2005 on


Protection of Competition


and Prohibition of


Monopolistic Practices +


Amendments to Laws


190 /2008 and 193/2008


+ Amendments Passed in


2014


Article 13 (…): A Board member shall not be eligible to take


part in the deliberations or voting with regard to a case under


the consideration of the Board, if they have an interest in it,


or if they are a relative to any of the parties up to the fourth


degree, or if such member currently represents or has


represented any of the parties. (…).


Article 16: The employees of the Authority are prohibited to


disclose any information, data or the sources thereof, in


relation to cases falling under the scope of this law which are


submitted or circulated during review, taking actions and


issuing decisions in such cases. (…). Employees of the


Authority are prohibited to work with Persons that were


subject to examination or are in the process of examination,


for a period of two years from the end of their employment.


In addition, the 2014 amendments to the law have extended


confidentiality obligations upon ECA officials and to Board


members.


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


Article 13 (…) B: Officers of the Directorate and any person


looking into its activities shall be required to maintain


professional secrecy.


Article 23: Any person who discloses any confidential


information that they received from any source except if that


was according to a court order shall be punishable by a fine


of no less than 1000 Jordanian Dinar and not exceeding


10’000 JD.


Lebanon No Competition law


Morocco Law N. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council *+


Decree No. 2-14-652 of 1


December 2014 taken for


the application of Law


No. 104-12**


Article 21: When they ask third parties about the operation,


about its effects and the commitments proposed by the


parties and make their decision public in terms fixed by


regulation, the Competition Council and the administration


take into account the legitimate interests of the parties to the


foregoing notification or to natural or legal persons


mentioned that their business secrets should not be


divulged.


* Article 11: (...) Any member of the Board shall advise the


President of the interest it holds or has acquired and its


functions in an economic activity. No member of the Board


may deliberate in a case where they have an interest, or if


they represent or have represented one of the interested


parties.


Board members are bound to secrecy of deliberations and


meetings. (...).


** Article 6: (...) If companies feel that some of the documents


included in this package PRESENT a confidential nature,


they can include the words "business secret" to this


document. In this case, the head of Government or


governmental authority delegated by them asked for this to


indicate the information that they do not want to be


mentioned in their judgment and in the opinion of the Board




Good Governance Guidelines: Independence and Transparency




32


of competition.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article 13: (...) Before exercising their duties, Board members


takes the following oath:


"I swear by God to faithfully perform my duties, to maintain


neutrality and not to disclose the secrecy of deliberations."


Article 24: The parties in dispute or their representatives are


entitled to obtain copies of documents or to become


acquainted with in order to exercise their right to judicial and


official institutions.


The President of the Competition Council may refuse to


disclose any documents involving trade secrets. In this case


the parties or their representatives may be aware of a non-


confidential version and a summary of the documents


concerned.




5.3. Conflict of interest and rules of
ethics


In many countries, full-time members and staff of


the competition authority are prohibited from


exercising any other professional or business


activity or holding public office, and part-time


members are not prevented from exercising


professional or business activities, but are required


to inform the authority in case of conflict of interest.


In the European Union, DG Competition has its


own strict "Code of Ethics and Integrity"14 meant to


protect not only the competition authority’s


interests but also its reputation. The overarching


principles guiding staff behaviour in the EU


competition authority are: independence,


impartiality, objectivity, loyalty and dignity. To this


end, the EU rules require not only that the conduct


of members be in accordance with these principles,


but also that its members and staff give the correct


"external perception". In other words, this means


"it is not enough that you are aware that you have


no personal interest in an issue, it must be evident


to others that you are completely objective".


Direct or indirect interest which may compromise


or be perceived to impair a staff member’s


independence when performing their duties may


derive for example from family ties, personal


friendships, accepting gifts, favours and donations,


external activities and remunerations, political and


ideological affinities and national influences.


The most relevant situations in DG COMP’s Code


of Ethics and Integrity are "personal interests"


derived from:


a) Financial interests in companies involved


in the competition investigation a staff


member has been assigned to;


b) Activities of a staff member’s


spouse/partner who might be involved in


the competition case on behalf of the


company concerned, a law firm,


consultancy firm, government body


deciding on aid, etc.; or


c) Involvement in the competition case in a


staff member’s previous employment15.


This is also the case in most countries. In the


MENA Project countries which have competition


law, the laws of Algeria, Egypt, Morocco and


Tunisia explicitly cover this issue, especially as


these competition authorities are legally


independent from the related ministry. In the case


of Jordan, the Competition Directorate is part of


the Ministry of Industry and Trade and therefore


subject to staff rules by Government officials. This


issue is not found in competition law.




In Algeria, the law stipulates that no member of


the Competition Council can be involved in a case


where they have a conflict of interest or if they


have family ties with those concerned up to the


fourth degree, or if they represent or has


represented one of the concerted parties.


Moreover, the function of member of the


Competition Council is incompatible with any other


professional activity.


In Egypt, Board members are not eligible to take


part in deliberations or voting with regard to a case


under consideration, if they have an interest in it, or




Good Governance Guidelines: Independence and Transparency




33


if they are relatives to any of the parties up to the


fourth degree, or if they currently represent or have


represented any of the parties. Moreover,


employees of the ECA are prohibited to work with


persons that have been subject to investigations or


are in the process of examination, if they have


been employed by them for less than two years.


In Morocco, the President and Vice-Presidents of


the Competition Council, except for those who are


magistrates, are obliged to stop any private sector


professional or commercial activity during their full-


time tenure, including any participation in executive


or managerial functions in private or public profit-


seeking undertakings. In addition, the members of


the Council must inform the President of any


interest they have had or have just acquired in any


economic undertaking. Moreover, no Member of


the Council is authorized to take part in


deliberations of a case where there is a conflict of


interest, or where they represent or have


represented the interests of one of the parties to


the case.


In Tunisia, before being appointed, the Members


of the Competition Council take an oath before the


plenary session of the Council, and swear to be


impartial and to keep secret all deliberations. This


oath is duly noted by Verbal Process, or "procès-


verbal". The Members proceed with the declaration


of their personal assets in pursuance of the


regulations in force. They are also obliged to inform


the President of the Competition Council of any


risk of conflict of interest, in order to take


appropriate action.






Algeria Ordinance No. 03-03 of


19 July 2003 on


Competition


Article 29: No member of the Competition Council may


deliberate in a case in which they have an interest or have


a kinship to the fourth degree with one of the parties or,


represent or have represented one of the interested


parties.


(...)


Being member of the Competition Council is


incompatible with any other professional activity.


Egypt Law No.3 of 2005 on


Protection of


Competition and


Prohibition of


Monopolistic Practices


+ Amendments to Laws


190 /2008 and


193/2008


Article 13: (…) A Board member shall not be eligible to


take part in the deliberations or voting with regard to a


case under consideration by the Board, if they have an


interest in it, or if they are a relative to any of the parties


up to the fourth degree, or if such a member currently


represents or has represented any of the parties.


Article 16: (…) Employees of the Authority are prohibited


from working with Persons that were subject to


examination or are in the process of examination, for a


period of two years from the end of their employment.


Jordan The Competition Law


No.33 of 2004 +


Amendment to Law No.


(18) of 2011


Not Found


Lebanon No Competition Law


Morocco Law No. 104-12 on


Freedom of Prices and


Competition + Law No.


20-13 of 7 August 2014


Concerning the


Competition Council *


*Article 11: The president and vice-president operate on a


full-time basis. The President and Vice-Presidents other


than judges shall suspend any professional or


commercial activity in the private sector during the


exercise of their office term. They must also suspend their


participation in the governing bodies, management and


administration of private or public companies operating


for profit. (...) Every board member must inform the




Good Governance Guidelines: Independence and Transparency




34


president of interests that it holds or comes to acquire


and its functions in an economic activity.


No member of council may deliberate in a case where


they an interest, or if they represent or have represented


one of the interested parties.


Board members are bound to secrecy of deliberations


and meetings.


Board members are required to make a written


declaration of assets and the assets they hold directly or


indirectly and under the conditions and in the manner


prescribed by law in accordance with Article 15 of the


Constitution.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on the


Reorganization of the


Competition and Prices


Article 13:


(...) Before exercising their duties, Board members shall


take the following oath:


"I swear by God to faithfully perform my duties, to


maintain neutrality and not to disclose the secrecy of


deliberations."


The oath is taken before the plenary assembly, the


minutes are recorded. Board members undertake to


declare their assets in accordance with the regulations in


force.


Members must inform the Chairman of any potential


conflict of interest in order to make arrangements.




5.4. Judicial review of decisions and
sanctions16


It is widely held that an independent judicial review


of the decisions of competition authorities, whether


through the regular courts or through


administrative tribunals, is desirable for the sake of


the fairness and integrity of the decision-making


process. Most jurisdictions appear to favour a


procedural review of competition cases, whereby


the appeal body confines itself to consideration of


the law, including a review of procedures adopted


by competition authorities in the exercise of their


investigative and decision-making functions, rather


than a consideration de novo of both evidence and


legal arguments17.


Accordingly, the intention is not for the courts to


substitute their own acknowledgement


appreciation, but to ascertain whether the


competition authority has abused its discretionary


powers. Grounds for review will often include lack


of jurisdiction, procedural failure and error of law,


defective reasons, manifest error of appreciation,


and error of fact. In this context, judicial review is


generally seen as an end-stage process where


judgment is passed on results or actions already


taken – i.e. decisions already taken by the


competition authority in line with whether decision-


making powers are vested in the chief executive, a


board of commissioners or a separate quasi-


judicial body in the form of specialized competition.


It should be noted that in some jurisdictions,


specialized competition appeal courts have been


constituted, like in Denmark, Singapore, South


Africa and the United Kingdom.


In the MENA Project countries which have


competition legislation, judicial review is either


confined to administrative courts or the


administrative court is the court of first instance.


In Algeria, the decisions of the Competition


Council can be appealed before the Court of


Algiers, by the parties concerned or by the Minister


in charge of Commerce. The recourse to the


Algiers Court is not suspensive of the case, but the


President of the Court of Algiers can decide, within


15 days, to suspend application of the decision in


question in case of urgency.


In Egypt, the Competition Law as such does not


mention the appeals procedure. However, all


breaches of Egyptian competition law are




Good Governance Guidelines: Independence and Transparency




35


considered criminal offences, and are therefore


appealable to the Court of Appeals and the Court


of Cassation, which represents the final stage of


criminal appeals.


In Jordan, decisions of the Court in cases relating


to competition are appealable before the Court of


Appeal and the Court of Cassation.


In Morocco, decisions of the Competition Council


with respect to concentrations can be appealed


within 30 days before the Administrative Chamber


of the Court of Cassation. Other decisions of the


Competition Council can be appealed before the


Rabat Court of Appeal. The appeal is not


suspensive of the decision, except where a


decision might result in irreversible circumstances.


In Tunisia, the decisions of the Competition


Council can be appealed before the Administrative


Court, pursuant to Law N0.72-40 of 1 June 1972.


The Administrative Court must deliver its decision


within one year from the date of the appeal. During


that period, the Competition Council can request


its decision to be provisionally executed.






Alegria Ordinance No. 03-


03 of 19 July 2003


on Competition +


Law No. 08-12 of 25


June 2008


Amendment to and


Supplemental


Ordinance No.03-03


19 July 2003


Chapter V - Procedure to appeal against decisions of the


Competition Council


Article 63: The decisions of the Competition Council may be


appealed to the Court of Algiers, ruling in commercial matters,


by the parties or by the Minister for Trade, within a period


which shall not exceed a month (…). The appeal to the Court


of Algiers is not suspensive (...) However, the President of the


Court of Algiers may, within 15 days, stay the execution of the


planned measures (...) when circumstances or serious facts


require so.


Article 70: The judgments of the Court of Algiers are forwarded


to the Minister for Trade and President of the Competition


Council.


Egypt Law No.3 of 2005


on Protection of


Competition and


Prohibition of


Monopolistic


Practices +


Amendments to


Laws 190 /2008 and


193/2008


The Competition Law as such does not mention the appeals


procedure. However, all breaches of Egyptian Competition


Law are considered criminal offences, and are therefore


appealable to the Court of Appeals and the Court of


Cassation, which represents the final stage of criminal


appeals.


Jordan The Competition


Law No.33 of 2004


+ Amendment to


Law No. (18) of 2011


Article 18: (…) E- Decisions of the Court in cases relating to


Competition shall be appealable before the Court of Appeals


and the Court of Cassation.


Lebanon No Competition Law


Morocco Law No. 104-12 on


freedom of prices


and competition +


Law No. 20-13 of 7


August 2014


Concerning the


Competition


Council*


Chapter II - Section II Appeals - Article 44: Appeals against


decisions of the Competition Council (concentrations ...) are


brought within 30 days (...) before the Administrative Chamber


of the Supreme Court. Appeals against other decisions of the


Competition Council are heard by the Court of Appeal in


Rabat.


Article 53: The appeal is not suspensive. However, the appeal


court may order a stay (...) if the provisional measures and


decisions issued by the Competition Council could cause




Good Governance Guidelines: Independence and Transparency




36


irreparable consequences for the companies concerned.


Palestine No Competition Law


Tunisia Law No. 36 of 15


September 2015 on


the Reorganization


of the Competition


and Prices


Article 28: (...) The decisions of the Competition Council may


appeal to the administrative court in accordance with Law No.


72-40 of 1 June 1972 relating to the administrative court.


The court in charge of such appeals must render its judgments


within a period not exceeding one year from the date of the


appeal.


The Competition Council may, if necessary, order the


provisional execution of these decisions.


The President of the Competition Council or, as appropriate,


one of its vice presidents, takes for enforcement board


decisions that have become non-appealable or bonds with the


provisional execution in accordance with the code of civil and


commercial procedure.











Good Governance Guidelines: Independence and Transparency




37


6. CONCLUSION


In its efforts to contribute to setting good


governance guidelines for the benefit of MENA


Project countries in the field of independence and


transparency of the competition authority, this


document has explored the general approaches to


competition law and their implementation in the


world, and the main provisions related to


independence and transparency found in


competition laws of MENA project countries.


As a result, it confirms the opinion expressed in the


introduction, namely that there is no single


standard of independence which countries must


adopt and no competition authority can be


completely independent from the related


Government structure. Obviously, there are large


differences in this field among the MENA Project


countries examined. First, there are those who


have draft legislation which so far has not been


adopted, namely in Lebanon and Palestine.


Second, for those countries which utilize


competition law, there is a wide spectrum of


degree of independence that can be noted, from


the Jordanian Competition Directorate, which is


part of the Ministry of Industry and Commerce, to


other countries, such as Algeria, Egypt, Morocco


and Tunisia, which have established competition


authorities or competition councils having distinct


legal personality, with varying degrees of


independence and transparency mechanisms


inscribed into the law. It is interesting in this


respect, to note that the independence of the


Moroccan Competition Council has been


enshrined in that country’s Constitution.


All MENA Project countries having competition law,


except for Jordan, for reasons noted above, have


financial autonomy inscribed within the law.


However, it is difficult to evaluate the actual extent


of budget autonomy, given the fact that all are


attached in one way or another to the budget of


the related ministry. Only the Egyptian authority


depends on appropriations designated to ECA in


the State General Budget.


Another measure of independence of competition


authorities is by examining the way the heads of


the authority are nominated and the length of term.


In the MENA Project countries, nominations of


heads and vice-chairpersons are often by


presidential (Algeria) or royal (Morocco) decree,


Government decree (Tunisia), or the related


minister (Egypt), in most other cases upon


proposal by the related ministry or by the judiciary


as far as magistrates are concerned. The tenure is


between 4 and 5 years, usually renewable once,


except for Tunisia, where the new law states non-


renewable terms. In short, the related ministry has


an important role to play in appointments, and it is


interesting to note that in Algeria and Morocco,


nominations sometimes have been slow after the


tenure of the members has lapsed, leading to


periods of inactivity, or standby of the competition


authority for lack of nominated members. It should


also be noted that increasingly the laws of MENA


countries prescribe the minimal qualifications


required for heads and members of competition


authorities, a factor which should somewhat limit


the discretion of those in charge of nominating


officials to competition authorities.


The powers of the competition authority, hence its


independence, can also be restrained by limiting


the scope of application to the law. Many


exemptions can be obtained, for example, for


reasons pertaining to, economic or technical


progress, employment, or strengthening the


competitive position of SMEs in the domestic


market, upon decision by the related minister. In


most developing countries, and in the MENA


countries under review, a general exemption for


essential necessities for which prices are regulated


by the State is very common, for example in


Algeria, Morocco and Tunisia, include temporary


exemptions in situations of crisis or emergency. In


addition, certain sectors may be regulated as State


monopolies or controlled by sectoral regulators


who seldom share their powers with the


competition authority. In some countries, like


Morocco and Tunisia, the law provides for


prescription of anti-competitive acts, after 5 or 10


years. This might also limit the scope of action of


the competition authority.


Another limitative factor is the scarcity of adequate


skills, and the fact that in many countries


introducing competition law, the related ministry


provides most of the new competition authority’s


staff by re-assigning their staff who had been


previously dedicated to price regulations.


Budgetary restraints also limit the scope of hiring


highly skilled staff, appropriate to the work of


modern competition authorities. This situation is


also aggravated by the extensive differences


between private and public sector wages.


Competition officials are being drawn away from




Good Governance Guidelines: Independence and Transparency




38


the authority once they have acquired needed skills,


to be employed by the private sector.


The degree of freedom and discretion afforded to


the competition authority in its daily business of


enforcing competition law can be seen as a factor


favouring independence. In Algeria, Egypt,


Morocco and Tunisia, the competition authority is


now fully empowered to initiate investigations of


anti-competitive cases on its own, without having


to be requested to do so by the related ministry. In


addition, the ministries, sectoral regulators and


collectivities, including consumer protection


organizations are empowered to ask the Council to


provide advice on competition related issues or


practices.


It is increasingly the case, for example, that the


competition authority is mandatorily consulted


before any draft law can be adopted to ensure that


it has no negative effects on competition, or at


least that such effects may be limited or eliminated


if not indispensable. The competition authority also


has to be consulted for advice with respect to


economic concentrations.


The review of MENA region competition laws has


confirmed the extent to which transparency is


being enhanced in the region. While all laws


provide for publication of an annual report of the


activities on the competition authority, increasingly


all decisions, advice and recommendations of the


competition authorities have to be published on a


regular basis on the website of the authority, and


Courts may oblige violators to publish the


judgement and motivations of the decisions in the


daily press at their own expense.


Another important issue related to transparency


and accountability is how the competition authority


is perceived by the general public and by other


Government bodies. In this connexion, it is


essential that issues of conflict of interest and


corruption should not hamper the reputation of the


competition authority.


Finally, the judicial review and possible appeals


against decisions and sanctions need to be made


transparent and easily affordable for all those


involved in such cases. Most MENA countries’


competition laws provide for recourse procedures


before an administrative court of appeal and some


can bring the case before the Court of Cassation.


In any event, the decisions of appeals and the


motivations behind them should also be largely


publicized, both in local newspapers, at the


expense of the guilty party, but also on the


competition authority’s bulletin or on its specific


website.


While the competition laws of the MENA Project


region are by no means harmonized, great


progress towards more independence and


transparency has been achieved in the past 10


years, and perhaps this is to a certain extent the


result of the very useful process of peer reviews


that have been taking place within some


organizations, including the Competition and


Consumer Policies Branch at UNCTAD. It is hoped


that pursuance of this process and progress in


regional projects such as the MENA Project, will


provide useful results.





Good Governance Guidelines: Independence and Transparency




39


REFERENCES






1) The general discussion throughout this document has been largely inspired by UNCTAD note on
“Independence and Accountability of Competition Authorities”, Document TD/B/COM.2/CLP/67 of 14


May 2008.
2) Ibid, paragraph 17
3) Ibid, paragraph 18
4) Ibid, paragraphs 25 & ss
5) Ibid, paragraphs 21 & ss


6) Ibid, paragraph 24
7) Ibid, paragraph 18
8) Ibid, paragraphs 39 & ss
9) Ibid, paragraph 48


10) Ibid, paragraph 16
11) Ibid, paragraph 17
12) ECA and NTRA sign cooperation protocol http://www.mcit.gov.eg/Media Center/latest News/News/1949
13) UNCTAD TD/B/COM.2/CLP/67, op. cit., paragraphs 50,35 & 36.
14 ) DG Comp Code on Ethics and Integrity. Full text can be found at :


http://www.asktheeu.org/en/request/67/response/178/attach/2/Leaflet%20Ethics%20final.pdf
15) Ibid.


16) Extracts from UNCTAD TD/B/COM.2/CLP/67, op. cit., paragraphs 28 & 29






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