September 20, 2013

CARICOM Competition Commission’s Investigation Process under CCJ Scrutiny

Fri Sep 20, 2013

by Elizabeth M. Mitchell-Daxon

Eugene Dupuch Law School, Nassau, Bahamas

CARICOM has established a Competition Commission that investigates and polices anti-competitive business behaviour throughout the CARICOM region. In the CCJ case of Trinidad Cement Limited v The Competition Commission, Trinidad Cement Limited (“TCL”) brought an action against the Commission claiming that the Commission failed to consult with and notify it of the Commission’s decisions to investigate alleged anti-competitive business behaviour by TCL.{{more}}

The key question in the case was whether the Commission had a duty to notify TCL before the investigation was launched. This depended on whether TCL was an “interested party” within the meaning of Article 175 of the Revised Treaty of Chaguaramas (the “Treaty”).

In deciding the case, as a preliminary matter the CCJ held that the Commission was a proper party to the proceedings, given its extensive powers under the Treaty and its ability to initiate legal proceedings before the CCJ in its own name. The Court further held that it had jurisdiction to hear TCL’s complaint as “no conduct or exercise of power by a treaty created institution … should escape the judicial scrutiny of the Court”.

On the critical issue of whether TCL was “an interested party” at the investigation stage, the Court stated that this did not hinge on the fact that the company was targeted by the Commission.

The Treaty did not grant a targeted business any role in consultations at the investigations stage. TCL had no legitimate interest which could be affected at that preliminary stage where the Commission was simply deciding whether it could and should carry out an investigation. The Court therefore dismissed the case. Although it dismissed TCL’s application, the Court encouraged the Commission to review its rules to ensure that they are in concert with the Treaty and reflect appropriate standards of fairness.

This summary is intended to assist the Caribbean public in learning more about the work of the CCJ. It is not a formal document of the Court. The judgment of the Court is the only authoritative document and may be found at http://www.caribbeancourtofjustice.org/wp-content/uploads/2012/12/2012-CCJ-4-OJ.pdf