«COMPILATION OF THE RESPONSES TO THE UNCTAD QUESTIONNAIRE Part I: Public Monopolies, Concessions and Competition Law and Policies COMPILATION OF THE ...»
The competition legislation of Ukraine contains no provisions implying incentives to business entities in any area of economy. At the same time, the competition legislation of Ukraine contains a number of exceptions in respect of imposing responsibility on business entities provided for performance of anti-competitive coordinated actions,
a) any voluntary coordinated actions of small or medium entrepreneurs in respect of joint purchase of goods, which do not lead to considerable limitation of competition and contribute to increase in the competitiveness of small or medium entrepreneurs;
b) coordinated actions in respect of supply or use of goods (excluding cases, when they cause considerable limitation of competition, limit access to the market for other business entities, cause economically unreasonable increase in prices or lack of goods), of a participant of the coordinated actions sets the limit for another participant
of the coordinated actions on:
- use of their supplied goods or goods of other suppliers;
- purchase from other business entities or sale to other business entities or consumers of other goods;
- purchase of goods being by their nature or under trade and other fair practices in business operation beyond the scope of the subject of the agreement;
- formation of prices or other terms of agreement on sales of supplied goods to other business entities or consumers;
c) agreements on transfer of intellectual property rights or use of the intellectual property to the extent they limit the economic operation of the party to the agreement, to which the right is transferred, if such limitation do not go beyond the legal rights of the subject of intellectual property right.
1. ¿Cuántas concesiones, y de qué tipo, se han otorgado en el país? ¿Cuál es la duración habitual o media de una concesión?
No se dispone de información respecto al número de concesiones. Las concesiones incluyen aeropuertos, terminales portuarias de contenedores, autopistas, hoteles propiedad de los municipios, algunas centrales térmicas, etc. No se dispone de información general respecto de la duración, pero puede ser por 20 años o más.
2. ¿Cuáles fueron las modalidades empleadas para otorgar concesiones (oferta, licitación pública, decreto, etc.)? ¿Hay en el país alguna ley que rija el otorgamiento y la rescisión de concesiones? ¿En los acuerdos de concesión se incluyen disposiciones que permitan la rescisión por parte del Gobierno?
En general son por concurso o licitación pública. Existen normas generales para otorgar o terminar una licitación, las que se determinan en los pliegos o en los correspondientes contratos. Hay disposiciones que permiten al gobierno terminar una concesión.
3. ¿Se han tomado en cuenta las consideraciones relativas a la competencia en el otorgamiento de concesiones? ¿Qué nuevas consideraciones o cuestiones se han planteado como consecuencia de las concesiones otorgadas en el país?
¿Se ha dado a los concesionarios protección especial con respecto al abuso de posición de dominio, la entrada o el control de los precios al otorgárseles una concesión?
En general no está explícita en los llamados. No hay reglas generales de competencia en los mismos. Existe un problema puntual con una licitación de terminal portuaria, donde una empresa tiene el monopolio y se está evaluando licitar otra terminal portuaria con otro participante para garantizar un marco competitivo.
En general las licitaciones incluyen un pago al Estado por concepto de canon o un precio a cobrar a los agentes por el uso de la misma, o en su defecto un mecanismo para el establecimiento de las tarifas.
4. ¿Qué sectores de la economía están exentos de la aplicación del derecho sobre la competencia? ¿Qué sectores o qué tipo de concesiones son objeto de una reglamentación específica? ¿Las concesiones están sujetas al derecho nacional sobre la competencia?
Sólo el Estado está exento de la ley de competencia, pero después todos los agentes económicos, independientemente de si son públicos o privados, con o sin fines de lucro, están alcanzados por las normas de competencia.
El sector transporte y portuario está bajo regulación específica.
En principio las concesiones están sujetas a las normas de competencia.
5. ¿Hay pruebas de que las concesiones hayan aportado beneficios a los consumidores del país en términos de infraestructura, diversificación, calidad, precios o bienestar general del consumidor?
No hay estudios científicos respecto de tales beneficios.
1. How many and what type of concessions have been granted in your country?
What is the typical/average duration of a concession?
Because of the differing nature of concessions and the fact that many are quite local, it would be difficult to even estimate the number of concessions operating in the United States. Concessions in the United States generally fall into three categories.
First, many are small or localized concessions, such as those to provide food, lodging or similar services to tourists and visitors to public parks and other facilities. For example, the National Park Service of the U.S. Department of the Interior grants or maintains several hundred such arrangements annually.35 Concessions are also routinely granted by state and local airport authorities to firms to provide a variety of airport services, ranging from fixed-base operator services to operation of airport restaurants.
Second, other concessions take the form of arrangements by which governments, typically at the state and local level, contract with private entities for the provision of government services for which fees are charged. These concessions might include water supply,36 trash removal, toll roads, ferry services, and the operation of cable television systems.
Third, the more significant concessions are those by which the government allocates rights to commercialize scarce resources to the private sector. For example, the Federal Communications Commission allocates segments of the radio spectrum to the exclusive use of telecommunications providers. The Federal government allocates landings slots at a handful of congested airports to particular airlines.37
2. What were the modalities for creating a concession (Public offering/tender, decree, etc.)? Is there a law in your country for the granting/termination of concessions? Are there provisions in concession agreements which allow the government to terminate the concession?
State, local, and Federal government entities grant concessions for a variety of purposes under their own statutory authority. Apart from cases where a governmental unit contracts with a private party for the performance of public services and federal or state public procurement laws apply, there is no These can be seen on the Park Service’s web site, http://concessions.nps.gov/. The Park Service’s concessions are governed by its own statute and agency regulations. National Parks Omnibus Management Act of 1998, Public Law 105-391, Title IV, and 36 CFR 51.
See United States submission to 2004 OECD Roundtable on Competition and Regulation in the Water Sector, available at http://www.ftc.gov/bc/international/docs/compcomm/2004--Roundtable%20on%20Competition%20and%20Regulation.pdf.
This system is discussed in the United States’ submissions to two OECD meetings. See the United States Submission to the 2006 OECD Global Forum on Competition Roundtable on Concessions, http://www.oecd.org/dataoecd/10/27/35892640.pdf, Roundtable Discussion on Competition Issues in the Allocation of Airport Take-off, Landing Slots and Ground Handling Services, available at http://www.ftc.gov/bc/international/docs/compcomm/1997-Roundtable%20Discussion%20on%20Comp.%20Issues.pdf.
Note that there is a distinction between services which are inherently governmental and those that are not. Allocation of airwaves or airport slots relates to services that are not inherently governmental in nature, as opposed to trash collection and park services, which normally are.
comprehensive statutory basis for the creating of concessions. Different statutory enactments apply to different sectors in different jurisdictions.
3. Were competition concerns taken into account at the time of granting a concession? What are the competition concerns or issues that have arose from concessions in your country? Was special protection in regard to dominance, entry or price control granted to concessionaires at the time of granting a concession?
The principal competition issue surrounding concessions in the United States may be the extent to which competition concerns are taken into account in the granting of the concession. Governmental activity in granting concessions usually is outside of the scope of the United States’ antitrust laws because those laws do not apply to the sovereign acts of governmental units that grant concessions. Accordingly, the granting of concessions is essentially a policy issue, not an enforcement issue.
The United States has recognized the value of competition as a tool for allocating public resources in the concession-granting process. In the 2006 OECD Global Forum on Competition, the United States submitted a paper detailing its experiences with the granting and operations of airport take-off and landing “slots.” As the paper stated, “The U.S. antitrust agencies have consistently supported the goal of finding an effective and comprehensive method of handling the allocation of slots that both addresses the problem of airport congestion and encourages competition at congested airports.” 38 The United States’ paper discussed the utility of allowing “secondary markets” that buy and sell slots, the relative merits of “congestion pricing fees” versus slot auctions, and recurring issues regarding incumbent carriers with market power at particular airports.39 Similarly, the Justice Department’s Antitrust Division filed comments in 2006 with the Federal Communications Commission regarding its auction for advanced wireless services. The Department supported the FCC’s proposal not to disclose the identities of bidders making provisionally winning bids until the close of the auction, arguing that non-disclosure would reduce opportunities for tacit collusion among bidders and thus would preserve competition in the auction. 40 Perhaps the most vexing challenge in dealing with competition problems in the concessions area is recognizing the existence of a competition issue. In many cases, the concession-granting agency has no institutional familiarity with competition issues, and may over- or under-regulate the sector involved. The Justice Department and the Federal Trade Commission maintain competition advocacy programs that often address such regulatory regimes.41 See http://www.oecd.org/dataoecd/10/27/35892640.pdf at paragraph 1.
See also “Proposal for a Market–Based Solution to Airport Delays,” U.S. Department of Justice, Antitrust Division, Economic Analysis Group Discussion Paper, Regulation (Spring 2008) at p. 30, available at www.cato.org/pubs/regulation/regv31n1/v31n1-5.pdf.
Ex Parte Submission of the Department of Justice, In the Matter of the Auction for Advanced Wireless Services, March 3, 2006, available at http://www.usdoj.gov/atr/public/comments/215087.htm.
See International Competition Network, Antitrust Enforcement in Regulated Sectors Working Group, Subgroup 3:
Interrelations between Antitrust and Regulatory Authorities, Report to the Third ICN Annual Conference (2004), and Submission by the United States in the Annex at 100, available at http://www.internationalcompetitionnetwork.org/media/library/conference_3rd_seoul_2004/aers_sg3_seoul.pdf?bcsi_scan_129F 6A3CDB83467E=0&bcsi_scan_filename=aers_sg3_seoul.pdf.
In many cases where services provided by concession holders are not subject to significant competition and where the concession creates market power in a significant market, regulatory programs are maintained to ensure that the concession holder provides the desired level of service at reasonable rates. Stated otherwise, this may be appropriate when consumers are not free to react to high prices or poor service by taking their business elsewhere. Regulation typically takes place at the state or local level.42 Thus, for example, local telecommunications regulators oversee local cable television franchises, local transport regulators oversee toll road concessions, and so forth. Many concessions, however, require no regulatory oversight at all, either because (as in the case of airport restaurants or National Park campgrounds) they do not involve grants of market power in any relevant antitrust market, or because whatever competition concerns might exist have been addressed in the course of the concession-granting process.
4. Which sectors from your economy are exempted from competition law?
Which sectors or what type of concessions are under a specific regulatory oversight? Are concessions subject to the national competition law?
As is the case in many countries, a limited number of industries have obtained exemptions from the antitrust laws through the political process. Among others, these include certain aspects of the business of insurance, ocean shipping, and freight railroads.43 As the United States Antitrust Modernization Commission recently recommended: “Statutory immunities from the antitrust laws should be disfavored.
They should be granted rarely, and only where, and for so long as, a clear case has been made that the conduct in question would subject the actors to antitrust liability and is necessary to satisfy a specific societal goal that trumps the benefit of a free market to consumers and the U.S. economy in general.”44 United States antitrust exemptions were also discussed in the 2008 WTO Trade Policy Review of the Untied States, which noted that “Federal antitrust legislation covers all sectors and interstate and foreign commerce, subject to some exceptions.”45 There is no antitrust exemption for “concessions” as such.
While actions of governmental units in granting concessions usually are outside the scope of the United States’ competition legislation, anticompetitive acts by firms seeking concessions, such as bid-rigging, are fully subject to national (or sometimes state) competition laws. Anticompetitive conduct in the operation of a concession often would be subject to competition laws too, depending on the role of regulation in the particular context. It is relatively unusual, however, for competition law enforcement issues to arise from the operation of concessions. Local concessions of the first sort described above would not normally enjoy significant market power or raise unusual competition concerns. In cases where a concession does confer market The interrelationship between competition and regulatory authorities in the United States is described in more detail in a 2005 U.S. Submission to the OECD Global Forum on Competition, available at http://www.ftc.gov/bc/international/docs/compcomm/2005-The%20Relationship%20Between%20Competition%20Authorities.pdf.
A list of exemptions to the United States’ antitrust laws can be found in Annex A of the 2007 United States Antitrust Modernization Commission report, p. 378, available at http://govinfo.library.unt.edu/amc/report_recommendation/chapter4.pdf.
Id., p. 335.
WTO Trade Policy Review of the United States, Secretariat Report Paras. 19 and 216, at pages x and 66, WT/TPR/S/200 2008), available at http://docsonline.wto.org.
power and some kind of intervention is needed in the absence of effective competition, the normal approach is to impose regulatory oversight. Regulatory oversight exists in several sectors in which concessions are typically granted, including energy, communications, and transportation.
5. Is there evidence in your country that concessions have brought about benefits for consumers in terms of greater infrastructure, diversification, higher quality, better prices, overall consumer welfare?
Concessions appear to have brought consumer benefits of the type described.
Experienced private sector providers should be able to offer higher quality and more efficient services in many cases than a government would be able to do directly, if it did so at all. In many cases, the grant of concessions leads to public benefits that would not otherwise have come about. A U.S. General Accounting Office report on highway construction, for example, found that when private sector concessions were employed to build highways, “major projects were built sooner than if the private sector had not become actively involved.” 46 In connection with the National Park Service’s “concessions” program described above, it was stated that “[t]he present day concession program … ensur[es] that park users have access to high quality commercial visitor services as reasonable prices.” Moreover, resources such as the telecommunications spectrum and airline landing slots subject to concessions are effectively and efficiently utilized by the private sector so long as transparent and procompetitive procedures are used to allocate those resources.
See United States General Accounting Oanffice, Highways and Transit, Private Sector Sponsorship of and Investment in Major Projects Has Been Limited (March 2004 ) at 15, available at http://www.gao.gov/new.items/d04419.pdf.