(a) the investigation is within the jurisdiction of the Commission; and
(b) the investigation is justified in all the circumstances of the case.
5. The consultations shall be concluded within 30 days of the date of receipt of the request for the investigation, unless the parties agree to continue the consultations for a longer period.
6. Where the Commission decides to conduct the investigation, the Commission shall:
(a) notify the interested parties and COTED;
(b) complete the investigation within 120 days from the date of receipt of the request for the investigation; and
(c) where the circumstances so warrant, extend the time period for completion of the investigation and notify the interested parties.
7. Where the Commission decides to conduct an enquiry following an investigation, the Commission shall afford any party complained of the opportunity to defend its interest.
8. At the conclusion of an enquiry, the Commission shail notify the interested parties of its determination.
9. Where the Commission determines that a party has engaged in anti-competitive business conduct, it shall also require the party to take the action necessary to remove the effects of the anti-competitive business conduct.
10. Where a specific course of action is required under paragraph 9, the enterprise concemed shail take the appropriate course of action within 30 days of the date of notification. If the concemed enterprise cannot comply, it shall notify the Commission and request an extension.
11. Ifthe enterprise cannot comply within the time period specified and fails to inform the Commission, the Commission may apply to the Court for an order.
12. A party which is aggrieved by a determination of the Commission under paragraph 4 of Article 174 in any matter may apply to the Court for a review of that determination.
Article 176. Determination of Anti-competitive Business Conduct: Procedure of Commission Proprio Motu
1. Where the Commission has reason ito believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts, or distorts competition within the CSME and has cross-border effects, the Commission shall request the national competition authority to undertake a preliminary examination of the business conduct of the enterprise.
2. Where a request is made under paragraph 1, the national competition authority shall examine the maiter and report its findings to the Commission within such time as may be determined by the Commission.
3. Where the Commission is not satisfied with the outcome of its request, the Commission may initiate its own preliminary examination into the business conduct of the enterprise referred to in paragraph 1.
4. Where the findings of the preliminary examination under paragraphs 2 and 3 require investigation, the Commission and the Member State concemed shail hold consultations to determine and agree on who should have jurisdiction to investigate.
5. if there is a difference of opinion between the Commission and the Member State regarding the nature and effects of the business conduct or the jurisdiction of the investigating authority, the Commission shall:
(a) cease any further examination of the matter; and
(b) refer the matter to COTED for its decision.
6. Nothing in this Article shall prejudice the right of the Member State to initiate proceedings before the Court at any time.
7. Where there is a finding that the Commission has jurisdiction to investigate the matter, the Commission shail follow the procedures set out in paragraphs 5, 6, 7 and 8 of Article 175.
Article 177. Prohibition of Anti-competitive Business Conduct
1. A Member State shall, within its jurisdiction, prohibit as being anti-competitive business conduct, the following:
(a) agreements between enterprises, decisions by associations of enterprises, and concerted practices by enterprises which have as their object or effect the prevention, restriction or distortion of competition within the Community;
(b) actions by which an enterprise abuses its dominant position within the Community; or
(c) any other like conduct by enterprises whose object or effect is to frustrate the benefits expected from the establishment of the CSME.
2. Anti-competitive business conduct within the meaning of paragraph 1 includes the following:
(a) the direct or indirect fixing of purchase or selling prices,
(b) the limitation or control of production, markets, investment or technical development;
(c) the artificial dividing up of markets or restriction of supply sources;
(d) the application of unequal conditions to parties undertaking equivalent engagements in commercial transactions thereby causing a competitive disadvantage;
(e) making the conclusion of a contract subject to the acceptance by the other Party to the contract of additional obligations which, by their nature or according to commercial practice, have no connection with the subject matter of the contract;
(f) unauthorised denial of access to networks or essential infrastructure;
(g) predatory pricing;
(h) Price discrimination;
(i)loyalty discounts or concessions;
(j)exclusionary vertical restrictions; and
(k) bid-rigging.
3. Subject to Article 168, a Member State shall ensure that all agreements and decisions within the meaning of paragraph 1 of this Article shail be null and void within its jurisdiction.
4. An enterprise shall not be treated as engaging in anti-competitive business conduct if it establishes that the activity complained of:
(a) contributes to:
(i) the improvement of production or distribution of goods and services; or
(ii) the promotion of technical or economic progress, while allowing consumers a fair share of the resulting benefit;
(b) imposes on the enterprises affected only such restrictions as are indispensable to the attainment of the objectives mentioned in sub- paragraph (a); or
(c) does not afford the enterprise engaged in the activity the possibility of eliminating competition in respect of a substantial part of the market for goods or services concerned.
Article 178. Determination of Dominant Positionfor the Purposes of this Chapter:
(a) an enterprise holds a dominant position in a market if by itself or together with an interconnected enterprise, it occupies such a position of economic strength as will enable it to operate in the market without effective constraints from its competitors or potential competitors;
(b) any two enterprises shail be treated as interconnected enterprises if one of them is a subsidiary of the other or both of them are subsidiaries of the same parent enterprise.
Article 179. Abuse of a Dominant Position
Subject to paragraph 2 of this article, an enterprise abuses its dominant position in a market if it prevents, restricts or distorts competition in the market and, in particular but without prejudice to the generality of the foregoing, it:
(a)restricts the entry of any enterprise into a market;
(b) prevents or deters any enterprise from engaging in competition in a market;
(c) eliminates or removes any enterprise from a market;
(d) directly or indirectly imposes unfair purchase or selling prices or other restrictive practices;
(e) limits the production of goods or services for a market to the prejudice of consumers;
(f) as a party to an agreement, makes the conclusion of such agreement subject to acceptance by another party of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the agreement;
(g) engages in any business conduct that results in the exploitation of its customers or suppliers,
so as to frustrate the benefits expected from the establishment of the CSME. that:
2. In determining whether an enterprise has abused its dominant position, consideration shall be given to:
(a) the relevant market defined in terms of the product and the geographic context;
(b) the concentration level before and after the relevant activity of the enterprise measured in terms of annual sales volume, the value of assets and the value of the transaction;
(c) the level of competition among the participants in terms of number of competitors, production capacity and product demand;
(d) the barriers to entry of competitors; and
(e) the history of competition and rivairy between participants in the sector of activity.
3. An enterprise shall not be treated as abusing its dominant position if it establishes
(a) its behaviour was directed exclusively to increasing efficiency in the Production, provision or distribution of goods or services or to promoting technical or economic progress and that consumers were allowed a fair share of the resulting benefit;
(b) it reasonably enforces or seeks to enforce a right under or existing by virtue of a copyright, patent, registered trade mark or design; or
(c) the effect or likely effect of its behaviour on the market is the result of superior competitive performance of the enterprise concerned.
Article 180. Negative Clearance Rulings
1. In any case where a Member States is uncertain whether business conduct is prohibited by paragraph 1 of Article 177, such a Member State may apply to the Commission for a ruling on the matter. If the Commission determines that such conduct is not prohibited by paragraph 1 of Article 177, it shail issue a negative clearance ruling to this effect.
2. Subject to paragraph 3, anegative clearance ruling shall be conclusive of the matters stated therein in any judicial proceedings in the Community.
3. The Court may, on an application of the Commission, review a decision of the Commission where the decision was induced by deceit or improper means.
Article 181. De Minimis Rule
The Commission may exempt from the provisions of this Part any business conduct referred to it if it considers that the impact of such conduct on competition and trade in the CSME is minimal.
Article 182. Powers of the Coted Respecting Community Competition Policy and Rules
Subject fo this Treaty, COTED shall develop and establish appropriate policies and rules of competition within the Community including special rules for particular sectors.
Article 183. Exemptions
1. Where COTED determines, pursuant to Article 182, that special rules shall apply to specific sectors of the Community, it may suspend or exclude the application of Article 177 to such sectors pending adoption of the relevant rules.
2. COTED may, on its own initiative or pursuant to an application by a Member State in that behalf, exclude or suspend the application of Article 177 to any sector or any enterprise or group of enterprises in the public interest.
Part TWO. CONSUMER PROTECTION
Article 184. Promotion of Consumer Interests In the Community
1. The Member States shall promote the interests of consumers in the Community by appropriate measures that:
(a) Provide for the production and supply of goods and the provision of services to ensure the protection of life, health and safety of consumers;
(b) ensure that goods supplied and services provided in the CSME satisfy regulations, standards, codes and licensing requirements established or approved by competent bodies in the Community;
(c) Provide, where the regulations, standards, codes and licensing requirements referred to in paragraph (b) do not exist, for their establishment and implementation;
(d) encourage high levels of ethical conduct forthose engaged in the production and distribution of goods and services to consumers;
(e) encourage fair and effective competition in order to provide consumers with greater choice among goods and services at lowest cost;
(f) promote the provision of adequate information to consumers to enable the making of informed choices;
(g) ensure the availability of adequate information and education programmes for consumers and suppliers;
(h) protect consumers by prohibiting discrimination against producers and suppliers of goods produced in the Community and against service providers who are nationals of other Member States of the Community;
(i) encourage the development of independent consumer organisations;
(j) provide adequate and effective redress for consumers.
2. For the purpose of this Part,
"consumer" means any person:
(a) to whom goods or services are supplied or intended to be supplied in the course of business carried on by a supplier or potential supplier; and
(b) who does not receive the goods or services in the course of a business carried on by him.
Article 185. Protection of Consumer Interests In the Community
The Member Siates Shail Enact Harmonised Legislation to Provide, inter alia:
(a) for the fundamental terms of a contract and the implied obligations of parties to a contract for the supply of goods or services;
(b) for the prohibition of the inclusion of unconscionable terms in contracts for the sale and supply of goods or services to consumers;
(c) for the prohibition of unfair trading practices, particularly such practices relating to misleading or deceptive or fraudulent conduct;
(d) for the prohibition of production and supply of harmful and defective goods and for the adoption of measures to prevent the supply or sale of such goods including measures requiring the removal of defective goods from the market;
(e) that the provision of services is in compliance with the applicable regulations, standards, codes and licensing requirements;
(f) that goods supplied to consumers are labelled in accordance with standards and specifications prescribed by the competent authorities;
(g) that hazardous or other goods whose distribution and consumption are regulated by law are sold or supplied in accordance with applicable regulations;
(h) that goods or materials, the production or use of which is likely to result in potentially harmful environmental effects, are labelled and supplied in accordance with applicable standards and regulations;
(i) that producers and suppliers are liable for defects in goods and for violation of product standards and consumer safety standards which occasion loss or damage to consumers;
(j) that violations of consumer safety standards by producers or suppliers are appropriately sanctioned and relevant civil or criminal defences to such violations are available to defendants.
Article 186. Action by the Commission to Provide Support In the Promotion of Consumer Welfare and Protection of Consumer Interests
1. The Commission shall, for the purpose of providing support to the Member States in the enhancement of consumer education and consumer welfare:
(a) promote in the Community the elaboration, publication and adoption of fair contract terms between suppliers and consumers of goods and services Produced or traded in the CSME;
(b) take such measures as it considers necessary to ensure that the Member States discourage and eliminate unfair trading practices, including misleading or deceptive conduct, false advertising, bait advertising, referral selling and pyramid selling;
(c) Promote in the Member States product safety standards as part of a programme of consumer education in order to assist the consumer to make informed choices conceming the purchase of consumer goods;
(d) keep under review the carrying on of commercial activities in the Member States which relate to goods supplied to consumers in such States or Produced with a view to their being so supplied, or which relate to services supplied for consumers with a view to identifying practices which may adversely affect the interests of consumers;
(e) educate and guide consumers generally in the practical resolution of their problems and in the best use of their income and credit, using such techniques and means of communications as are available;
(f) confer, on request, with consumer organisations of the Member States and offer such advice and information as may be appropriate for the resolution of their consumer problems;
(g) establish the necessary co-ordination with government agencies and departments for the effective education and guidance of consumers having regard to the programmes, activities and resources of each agency or department;
(h) conduct research and collect and collate information in respect of matters affecting the interests of consumers;
(i) compile, evaluate and publicise enactments for the protection of consumers in such Siates and recommend to COTED the enactment of legislation considered necessary or desirable for the protection of consumers;
(j) promote, after consultation with the competent standardising agency and other public and private agencies or organisations, the establishment of quality standards for consumer products;
(k) promote and monitor, after consultation with relevant agencies and departments of Government, the enforcement of legislation affecting the interests of consumers, including, but not limited to, legislation relating to weights and measures, food and drugs adulteration, the control of standards and price controls;
(l) make recommendations to COTED for the enactment of legislation by the Member States for the effective enforcement of the rights of consumers.
2. The Commission shall:
(a) draw to the attention of COTED business conduct by enterprises which impacts adversely on consumer welfare;
(b) collaborate with competent Organs of the Community to promote consumer education and consumer welfare.
Chapter Chapter Nine Disputes Settlement
Article 187. Scope of the Chapter
The provisions of this Chapter shall apply to the settlement of disputes concerning the interpretation and application of the Treaty, including:
(a) allegations that an actual or proposed measure of another Member State is, or would be, inconsistent with the objectives of the Community;
(b) allegations of injury, serious prejudice suffered or likely to be suffered, nullification or impairment of benefits expected from the establishment and operation of the CSME;
(c) allegations that an organ or body of the Community has acted ultra vires; or
(d) allegations that the purpose or object of the Treaty is being frustrated or prejudiced.
Article 188. Modes of Dispute Settlement
1. Subject to the provisions of this Treaty, the disputes mentioned in Article 187 shall be settled only by recourse to any one of the following modes for the seitlement of disputes, namely, good offices, mediation, consultations, conciliation, arbitration and adjudication.
2. Where a dispute has not been settled following the adoption of one of the modes referred to in paragraph 1 other than arbitration or adjudication, either party may have recourse to another mode.
3. Subject to the procedural rules applicable in respect of arbitration or adjudication, the Parties may agree, pending a settlement, to have recourse to good offices, mediation or conciliation in order to arrive at a settlement.
4. Without prejudice to the exclusive and compulsory jurisdiction of the Court in the interpretation and application of this Treaty under Article 211, the parties may use any of the voluntary modes of dispute settlement provided for in this Article in the settlement of a dispute.
Article 189. Expeditious Settlement of Disputes
Where a dispute arises between Member States, the parties shall proceed expeditiously to an exchange of views for the purpose of agreeing on:
(a) a mode of settlement and where an agreed mode has been terminated, to another mode of setilement; or
(b) a mutually satisfactory method of implementation where a settlement has been reached and the circumstances require consultation regarding its implementation.
Article 190. Notification of Existence and Settlement of Disputes
1. Member States Parties to a Dispute Shall Notify the Secretary-general of:
(a) the Existence and Nature of the Dispute; and
(b) any mode of dispute settlement agreed upon or initiated.
2. Where a seitlement is reached the Member States concerned shail notify the Secretary-General of the settlement and the mode used in arriving at the settlement.
3. The Secretary-General shall, as soon as practicable after receiving the information pursuant to paragraphs 1 and 2, notify other Member States of the information received.
Article 191. Good Offices
1. Member Siates parties to a dispute may agree to employ the good offices of a third party, including those of the Secretary-General, to settle the dispute.
2. Good offices may begin or be terminated at any time. Subject to the procedural rules applicable in respect of arbitration or adjudication, good offices may continue during the course of arbitration or adjudication.
Article 192. Mediation
1. Where Member States parties to a dispute agree to settle the dispute by recourse to mediation, the parties may agree on a mediator or may request the Secretary-General to appoint a mediator from the list of conciliators mentioned in Article 196.
2. Mediation may begin or be terminated at any time. Subject to the procedural rules applicable in respect of arbitration or adjudication, mediation may continue during the course of arbitration or adjudication.
3. Proceedings involving mediation and, in particular, positions taken by parties during the proceedings, shall be confidential and without prejudice to the rights of the parties in any further Proceedings.
Article 193. Obligation to Enter Consultations
1. A Member Siate shail enter into consultations upon the request of another Member State where the requesting Member State alleges that an action taken by the requested Member State constitutes a breach of obligations arising from or under the provisions of this Treaty.
2. Where a request for consultations is made pursuant to paragraph 1, the requested Member State shall enter into consultations within 14 days of the receipt of the request or a mutually agreed period.
3. Where:
(a) consultations have not been entered into within the period referred to in Paragraph 2; or
(b) the consultations fail to settle the dispute within 45 days of the receipt of the request for consultations or the dates mutually agreed,