Competition wind of change

THERE is a wind of change that is currently sweeping over Trinidad and Tobago. It is not your typical gusty wind bulletin that our favourite local meteorologist advises on, but rather, a more dynamic gale, a whirlwind of competition that is gradually bringing about developments to the economic landscape of Trinidad and Tobago and to business enterprises that operate within its perimeters.

Of course, this Competition Wind did not occur overnight or solely over the borders of Trinidad and Tobago, but was rather formed by historically evolving conditions on an international scale which have enveloped Trinidad and Tobago and resulted in the establishment of the Trinidad and Tobago Fair Trading Commission (TTFTC).

The TTFTC, one of 130 plus functioning competition agencies globally and the third such agency to be established in the Caricom region, is specifically responsible for implementing and administering the Fair Trading Act Chapter 81:13 (FTA). This Act was assented to by Parliament in 2006, partially proclaimed in 2007 and 2014, and fully proclaimed in February 2020.

The FTA creates an institutional framework for the enforcement of competition policy in Trinidad and Tobago and addresses major issues including, the abuse of monopoly power (dominant position is defined as controlling more than 40 per cent of the market), anti-competitive mergers, anti-competitive agreements and the enforcement of the relevant clauses or enforcement measures. The public should take note that under the FTA, an agreement would be considered anti-competitive if it:

(i) fixes prices directly or indirectly (other than where reasonably necessary to protect the interests of the parties concerned and which are not detrimental to the interests of the public);

(ii) limits or controls: (a) markets; (b) technical development or (c) investment;

(iii) shares markets or sources of supply;

(iv) applies dissimilar conditions to equivalent transactions and thus places some trading partners at a disadvantage to others; or

(v) makes contracts subject to extraneous conditions,

Amidst the new and dynamic Competition Wind finally assuming its rightful shape in Trinidad and Tobago, a destructive pressure system in the form of the Covid-19 pandemic arrived. This Covid-19 system has brought with it surreal levels of morbidity and mortality, along with societal and economic hardships. The TTFTC is very much aware of how these conditions have affected the business environment and consumer welfare, and will take this into account as it finds creative ways to maintain and promote effective competition which is crucial to a robust economic recovery.

The Covid-19 system has done little to slow the work of the TTFTC as far as enforcement and competition advocacy are concerned. If anything, the convergence of these current events has stressed the importance of the work of agencies such as the TTFTC since it believes that a truly successful market economy depends on as level a playing field as possible for all businesses.

Accordingly, opinion of AG Bot in the case of Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633 on the benefits of competition is worth repeating: “Competition, if it is fair, generally ensures technological progress and improves the qualities of a service or product while ensuring a reduction in costs. It therefore benefits consumers because they can also benefit from products and services of better quality at a better price. In that way competition is a source of progress and development.”

A major occurrence in this Covid-19 system is increased levels of merger activity as businesses seek to find ways to stay alive or risk getting blown away in the process. This is evidenced by the rise of requests for merger reviews, an activity which is one of the TTFTC’s primary areas of focus since the full proclamation of the FTA.

To date, the TTFTC has reviewed approximately 12 merger applications since September 2020 across various sectors inclusive of, but not limited to, Information Technology and Communications, energy, business/commercial properties, pharmaceuticals/health care, transportation, construction and aviation.

As part of its merger analysis, the TTFTC undertakes a thorough and comprehensive analysis and investigation of each merger application that comes before it. In the course of each investigation, the TTFTC makes detailed and probing enquiries and also conducts its own independent research, including obtaining the views of market participants such as suppliers, competitors, consumers and relevant third parties. The TTFTC will only approve a merger if it is satisfied that the merger would not adversely affect competition or be detrimental to consumers or to the economy.

In all of this, advocacy remains a crucial aspect of the work of the TTFTC. This keeps the lines of communication open so that business enterprises and other stakeholders are reminded that anti-competitive behaviour is discouraged as this has a propensity to restrict or distort competition within markets and which produces adverse effects on market efficiency and consumer welfare. As such, the TTFTC has actively engaged in outreach and sensitisation efforts. These efforts form part of its drive to raise awareness of the benefits of competition.

Through sector-wide stakeholder consultations, the TTFTC aims to build an enhanced culture of competition within Trinidad and Tobago by fostering relationships with the business community, and by providing a space where concerns can be expressed and requisite guidance provided. The emphasis at all times is to promote and protect competition, and not necessarily competitors.

These stakeholder consultations have targeted various sector regulators, the pharmaceutical sector, the construction industry and the legal profession, with numerous presentations and training sessions delivered. As the TTFTC continues its drive to sensitise the business community, there are plans to conduct specific sessions with stakeholders in the Shipping Sector and the Small and Medium Enterprises Sector in the near future.

The consultations spotlight the role, powers and functions of the TTFTC, the importance of competition, the key provisions of the FTA, compliance with the FTA, identifying anti-competitive clauses in contracts and agreements, highlighting the offences in the FTA and the consequences of contravention, merger review considerations, competition enforcement, co-operating with the TTFTC in its investigations and keeping up to date with issues in competition law.

It is apparent that this Competition Wind can have far-reaching effects within Trinidad and Tobago. The Covid-19 weather system will not stop the Competition Wind as the work of the TTFTC would ensure a continuous drive towards a more competitive economy. It is the hope of the TTFTC that as the business community continues to partner with it; the collaboration will help to rebuild a better and more inclusive business sector, allowing businesses and consumers in Trinidad and Tobago to experience clearer economic skies.

This article was provided to the T&T Chamber courtesy the Trinidad and Tobago Fair Trading Commission.

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