Pravna zaštita konkurencije u međunarodnoj trgovini

Abstract

Globalization of the world’s economies, accompanied by the integration of states of different development level under the World Trade Organization’s legal auspices – presents important challenge for developing states, as well as for transition states, with Serbia as one of them. Opting for the policy of privatization of socially-owned and state property, as well as for the policy of trade liberalization by removing and substantial lessening of tariff and nontariff protectionist measures – on the road to its membership of the WTO and EU – Serbia has also bound itself to approximate its legal system to institutional and legal postulates of contemporary international trade. Competition law (antitrust), along with the trade law, as well as the foreign investments law and IP law – take the central role in the transitional reform of the Serbian economic and legal system. Internationally, the aim of competition law is to prevent business practices which substantially restrict or distort the process of free inter-state trade, thereby annulling or minimizing the results of liberalization. Those business practices – such as cartels, abuse of monopoly and mergers which create or intend to create market monopoly/olygopoly – have detrimental effects similar to those of the state tariff and nontariff protectionist measures. International aspect of competition law has not yet been thoroughly investigated in domestic legal literature, and this point played an instigative role in the choice of the thesis. The thesis’ object is to bring to attention various forms of competitive harm in international trade, as well as the main institutional and procedural mechanisms of its prevention and penalization – on the national and the international level. The importance of the research lies in its actuality and potential contribution to establishing and enforcing legal framework able to institute and promote Serbian national competitiveness in the global trade. Distinct contribution of dissertation is in its comparative analysis of Serbian competition law in respect to the laws of Slovenia, Germany and European Union, as well as in the suggested measures for normative and effective competition policy promotion in Serbia, with due respect for the special treatment of small-and-medium sized enterprizes and agricultural sector. The author has used multiple methods of scientific research: deductive and analytical (in gathering, comparing and analysing the original and derivative documentation), historicaldescriptive (by assessing the causes and evolutionary incentives in the development of competitition law); synthesis (recognizing the manifested types of competitive harm and instruments for protection); analytical-synthetic-dialectic (in order to recognize the identities and their inter-dynamic i.e. causal relation); inductive (taking the thorough insight of the best practices in competition law enforcement of the developed states). The knowledge accumulated using those methods was further supplemented with the use of the explicatorycausal and creative synthesis, comparative and empirical-explicatory analysis, as well as predictive induction – in order to assert the following presupposed research hypotheses: 1) that the competition law is the necessary precondition for the development of social systems founded on the principles and ideology of liberal democracy and market economy; 2) that the effective protection of international competition is an essential element of the accession to WTO and EU membership; 3) that the liberalization of international trade and effective protection of international competition are complementary aspects of the global economy; 4) that there is the need for transitional and developing states to assume special trade and competition policy which suits their development strategies; 5) that there is necessity for the competition law harmonization; and 6) that the supra-national legal mechanism should be established in order to effectively protect international competition. The structure of the dissertation is as follows: The Introductory part deals with concepts and definitions of competition and competition law, as well as with the main economic theories of competition and competition law evolution. The First Part, under the heading: ’Protection of Competition in the National Law’, contains overview of the national competition legal systems in the United States of America, Great Britain, Germany and Slovenia. The aim is to compare those laws with the law in Serbia in order to make conclusions on its current state and its potentials in the process of harmonization. The Second Part, under the heading: ’Protection of Competition in International Trade’, deals with the main theme of the research, which is the protection of competition in international trade, as prescribed by the international legal and soft-law instruments, such as: the law of the World Trade Organization, European Union’s law, regional trade agreements, UN Model Law on Competition (2010), recommendations and other soft-law instruments of the Organization for Economic Co-operation and Development, bilateral agreements and other instruments of the inter-state co-operation in competition law cases. This part of dissertation explains the issues and challenges of the antitrust harmonization process on the global level, as well as the issue of the international co-operation between national competition authorities. The Third Part, under the heading: ’Legal Protection of Competition in Serbia“, contains comparative and critical analysis of Serbian competition law in relation to the laws of the European Union, Germany and Slovenia. The Conclusion is the last part of dissertation and contains the author’s affirmative statements of the presupposed research hypotheses. The dissertation confirms the thesis that the effective protection of competition on the national market, along with the effective protection of competition between national and foreign business entities (either on the national or on the regional/world market) – is one of the requirements for the state’s accession to the WTO membership and for the optimal realization of the benefits of such membership. This statement has been affirmed in the analysis of the founding non-discrimination principles of international trade (i.e. the mostfavoured- nation principle and the national treatment principle), as well as by analysing particular provisions of WTO agreements which proscribe restriction of competition in international trade. Effective enforcement of the competition law is also one of the EU membership requirements, which has been particularly confirmed in relation to Serbia, noting that the competition law is the new legal discipline in Serbian system, in theory, as well as normatively and practically; its imposition in the legal system of Serbia is the result of political and normative duty to harmonize domestic law with the European law, in line with the obligations assumed by the Ageement on Stabilization and Accession. The dissertation presents the main aspects of the interaction between competition law and trade law. Contemporary international trade system under the legal auspices of the World Trade Organization makes foreign markets more accessible to business entitities, which promotes international competition. On the other side, it significantly restrict sovereign capacities of member states to adopt measures that are protective to its domestic industry, which – together with institutional under-capacity for effective enforcement of competition law – makes undeveloped and developing states susceptible to undue influence and power of the multinational companies. This aspect of the international trade relations is presented in the second and third part of the thesis, together with the author’s suggestions for meaningful competition law enforcement. It has also been assumed and confirmed in the thesis that the transition and developing states should adopt specific concept of competition policy and law, which allow them to strategically plan industrial and technological development, support productivity growth and improve national competitive standing on the international market. That statement has been influenced by the notion (which has been empirically proved by other authors) that the past decades’ effects of the ’special and differentiated treatment’ have been more than unsatisfactory, even detrimental to undeveloped and developing states. Competition law has significant strategical capacity in regard to national economies’ development. That issue is brought to attention in the third part of dissertation, pointing to the insufficiencies of Serbian competition law and suggesting paths to their surmounting. Positive examples are recognized in competition laws of developed states, with Germany law solutions as upstanding. In line with those, the author proposes a priori exemption of certain persons and entities/sectors from the realm of competition law, such as, particularly, small-and-medium-sized business entitites as well as the agricultural sector, esp. farmers and their associations (co-operatives and co-operative alliances). Further on, the author has made an assertation towards more active and cautious approach in the foreign concentrations’ (mergers/aquisitions) analysis of their economic effects on domestic market – taking into account the low level of development and under-productivity of Serbian economy, undeveloped competitiveness of domestic products, as well as the overall import-dependency of our economy. Lastly, the thesis has confirmed the necessity for the partial harmonization of competition law on the supra-national level – on the basis of the analytical review of the problems arising out of the cross-border effects of restrictive business acts. The starting line on that evolutionary path towards the all-round or partial harmonization – is featured by the extraterritorial application of domestic competition law in order to prevent restrictive effects on domestic territory of business practices taken abroad. Founded on the American ’effects doctrine’, this practice of extending the territorial jurisdiction beyond the state’s boundaries has frequently led to inter-state political clashes and diplomatic tensions. Notwithstanding, the extraterritorial enforcement of competition law has resumed its importance, in lieu of the multilateral agreement on competition law. It has been, though, in the last decades, substantially improved by the institutional co-operation between national competition authorities. Analysing the level of approximation of the Serbian competition law to the European law, the author has concluded that there is no obligation for a full harmonization of competition law not even along the lines of relation between community competition law and member-states’ competition law. It has been asserted by the author that the principle ’lessthan- full-harmonization’ had not been utilized to our own benefit in the enactment process of of the Serbian Act on Protection of Competition – missing out on the opportunity to accustom the legal norms to strategic development of national competitiveness and protection of the vulnerable economy sectors and susceptible entities/persons.