Past paper attempts for Law exam at UWI, Cave Hill

Caribbean Integration Law Past papers

APRIL 2011 NO. 1

COTED-

o PROCEDURAL VOTING RULES- see. S. 27(3) RTC procedural decisions

are reached by a simple majority of Member States- 8 votes

o SUBSTANTIVE VOTING PROCEDURE- see. Art. 29(1)- QMV- no less than

¾ . in this case there are 13 votes so (more than the 12 required). Decision passed

The second issue deals with the competences of the different Ministerial Councils. In this

case it is between COFCOR and COTED:

o Art. 10 defined the Organs of the Community which includes COTED (art. 15

RTC) and COFCOR (art. 16 RTC).

o COTED- Responsible for Trade and Economic Development in the Community.

This includes matters such as the promotion of development and overseeing the

operation of the CSME. This is complementary to that of the Community Council

and therefore the two Organs must work closely together. To promote the

international competitiveness of industrial and agricultural commodities which is

also known as the structural diversification and sustainability of the Community.

COTED also promotes the accelerated development of science and technology,

the protection and preservation of the environment and sustainable development.

It also looks at external economic trade of the Community. Finally it undertakes

any additionally functions as assigned by the Conference arising under the RTC.

o COFCOR- (art. 16 RTC) is responsible for the determining the relations b/w the

community, international organisations and third States. It comprises Ministers of

Foreign Affairs of Member States. It promotes friendly and mutually beneficial

relations among Member States. It coordinates joint representations and common

Community positions. It also coordinates the position of Member States with

respect to intergovernmental organisations. It also collaborates with COTED in

promoting and developing external economic and trade relations. Art. 16(4) RTC

says that only Member States possessing the necessary competence with respect

to matters under consideration from time to time may take part in COFCOR

deliberations. This section was placed into the RTC to give account of Montserrat

position (who b/c of their legal standing as a dependent state cannot make any

foreign affairs decisions.

Issue on critical importance-

o A critical importance decision is one that affects the national well-being of a

Member State.

o Whether a matter is of critical importance is determined by a vote of 2/3 majority

in favour of the decision- art. 29(4) RTC.

o Seeing that only 8 Members have voted- then it does the threshold set by art.

29(4) of 2/3 majoirty. (Remember 2/3 majority is 10 Members voting). therefore

the critical importance vote does not succeed.

Issue on the voting procedures of Community Council-

o This is governed by art. 29(1) RTC- which says that all decisions by the

Community Council shall be binding upon attainment of qualified majority vote

which is defined in subsection 2 as a no less than ¾ Membership of the

Community

o Since 13 members voted then this is binding on all Member States- the proposal

for the abolition of the tax and the 2 year derogation for Jameeca is approved.

Whether Carib Airlines can bring an action against the Comptroller of Customs in

Jameeca in the High Court of Jameeca-

o Having identified that according to the VCLT art. 26 (pacta sunt servanda) that

Community law takes precedence over national law, and whereby art 214 RTC

identifies the referral procedure which states that ‘where a national court of a

Member State is seized of an issue whose resolution involves a question

concerning the interpretation or application of the treaty the national court shall if

it considers that decision on the question is necessary to enable it deliver

judgment refer the question to the Court for determination before delivering

judgment’.

o Art. 240 RTC requires implementation of community decisions. There was no

transformation in this case.

o Supremacy of CARICOM Law- it appears that the argument by the Comptroller

appears to follow EU precedent where EU law is supreme and directly applicable.

(Costa v ENEL). Because of this the domestic court would throw out that

argument since decisions made at CARICOM need to be transformed into local

law. (Art. 240 RTC)

o See International Tin Council case- “…except to the extent that a treaty

becomes incorporated into the laws of the UK by statute, the courts of the UK

have no power to enforce treaty rights and obligations at the behest of a sovereign

government or at the behest of a private individual”.

o See Myrie [2013] CCJ 3 (OJ) at [52] – art 240 RTC is not concerned with the

creation of rights and obligations at the community level, it speaks to giving

effect to rights at the domestic level. Further at paragraph 53 the court combined

art. 9 and art. 240(1) RTC to say that Member States were required to honour and

carry out obligations arising out of the RTC as well as those resulting from

decisions taken by the Organs and Bodies of the Community. In this scenario the

State of Jameeca needed to implement the legislation at the domestic level.

o Therefore Jameeca High Court, in complying with this provision of the RTC as

well as its obligations to act in good faith shall refer the matter to the CCJ for

determination.

o Conclusion- Yes but it should be referred to the CCJ per art. 214 RTC

Whether Carib Airlines can have standing before the CCJ-

o Refer to art. 222 RTC-

o YES they have standing

Whether the challenge of the Community Council’s decision is in violation of the

RTC-

On the substance of the challenge, the Community Council’s decision to replace an

earlier decision of COTED would appear to be ultra vires. The Community Council has a

duty of cooperation under Art. 20 RTC, and under Art. 13(3)(b) is only empowered to

amend proposals of Ministerial Councils subject to this duty of cooperation. Further, Art.

20(5) only allows the Community Council to “modify the proposal [of the Ministerial

Council] to the extent and in the manner agreed with the originating Organ.”

e) This duty of cooperation may be interpreted strictly by the CCJ, which has given life to

a similar obligation – the duty of consultation – in the decision of TCL v. CARICOM. If

so, the decision of the Community Council may be declared invalid.

APRIL 2011 NO 3

A number of headings need to be addressed in this question:

10% charge on sale of tamarind balls & Note the tamarind balls produced in St. Katts

which are in competition with Tamarind Ball Company in the St. Katts market.

Requirement of certificate of origin

Note the purpose of the Reduction of Obesity Law

10% charge on sale of tamarind balls

Whether the 10% charge is contrary to the provisions of the RTC (art. 90 RTC)-

o Art. 90(1) RTC prohibits the imposition of fiscal charges on all community origin

products.

o The fact that the charge is imposed on all products whether domestic or

international in origin is indicative that it is a tax and not for e.g. an import duty

(pursuant to art. 87 RTC). Also the purpose of the charge is not on the crossing of

any frontier (another clue that it is part of internal taxation).

o From the EU jurisprudence a tax is defined as a genuine tax is a measure relating

to a system of internal dues applied systematically to categories of products in

accordance with objective criteria irrespective of the origin of the products (Case

90/79 Commission v France).

o Since the charge is imposed regardless of origin of the products in the scenario

given then it falls under the prohibition under art. 90(1) RTC.

We need to see what happens to goods in competition. The facts tell us that the candies

made in St Katts are in competition with Tamarind Ball’s goods-

o Note the provision in the RTC- art. 90 RTC- Taxation falls under art. 90 RTC –

art. 90 (1) (a) – (b) RTC will likely be read as mutually exclusive. Either a good

must be classified as being (1) a like domestic good, or (2) a substitute which

enters into direct competition with a domestic good. In both cases in order for a

fiscal charge to contravene art. 90 RTC it must protect the domestic product.

o What does the equivalent EU provisions say on this? In the TFEU at art. 110,

paragraph 1 deals with similar products while paragraph 2 deals with products in

competition. In the present case we see they say that the goods are in competition.

o Note the case law on products in competition- (from the ECJ)-

Case 170/78 Commission v UK- (Re Tax on Wine and Beer) the ECJ

explained the scope of the application of art. 110(2) in respect of products

in competition. In this case the UK maintained different levels of internal

taxation on beer and wine. Wine was mostly imported while beer was a

predominantly domestic product. The Commission decided that this tax

difference amounted to discrimination against imported wine and that by

increasing the tax on wine the UK government was encouraging

consumers to buy beer. The UK argued the two products were not

interchangeable and there was no breach of art. 110 TFEU. The ECJ held

however that beer and wine were to a certain extent substitutable as they

were capable of meeting the same needs of consumers. They were

products in competition and the ECJ found the UK in breach of art. 110(2)

TFEU.

Relating back to the RTC art 90(1)(b) there is a likelihood that the

imposition of the tax is in fact in contravention of the article.

We now need to determine the type of taxation this is- whether it is direct discrimination

or indirect discrimination (because the facts said that St. katts did not produce tamarind

candies but some other form of candy – therefore it would not be subject to the tax)

o Indirect discrimination is discrimination based on factors other than the

nationality of the product. In EU law this is prohibited.

o Note the ECJ cases on indirect discrimination- Case 112/84 Humblot where under

French law annual tax on cars differentiated between cars below 16hp and above

16hp. France did not manufacture cars above 16hp so all French cars were subject

to a lower tax than non-French cars. Humblot challenged this and the ECJ held

that French law was in breach of art. 110 TFEU as it was discriminatory in terms

of cars imported from other Member States.

o From the fact pattern we see that no one in St. Katts produce tamarind candies so

they would not be subject to the 10% charge.

o Result- indirectly discriminatory on Tamarind Ball Company products.

We now need to know whether that tax can be justified under art. 226 RTC-

o We see that the imposition of the Obesity Law was for health reasons-

o Note art. 226 (1)(b) RTC- to protect human, animal or plant life or health. This

means that the health concern by the government may justify the imposition of the

tax. It may also be argued that the imposition of the tax is to protect the domestic

market.

Also note that art. 90(2) RTC does not require the Member State to notify COTED on

any imposition of fiscal charges, it only seems to apply to those imposed under art. 90

(1)(a) RTC.

It is also nice to mention Case 140/79 Chemial v DAF where the ECJ spoke about

objective justification of taxes. “… such differentiation is compatible with community

law if it pursues economic policy objectives which themselves are compatible with the

requirements of the treaty…”

Requirement of certificate of origin

Whether the imposition of the requirement for a certificate of origin is contrary to the

provisions of the RTC-

o We first need to determine whether this is an import duty (see art. 87 RTC), a tax

(see art. 90 RTC) or a quantitative restriction (see art. 91 RTC).

o The main clue in determining whether it is a import duty, tax or quantitative

restriction is the nature of the charge. What type of charge is it? Is it a fiscal

charge or non-fiscal? If it is a fiscal charge it will fall under art 87 RTC or art. 90

RTC. If non-fiscal charge, then it will most likely be a quantitative restriction

thereby falling under art. 91 RTC1.

1 ARTICLE 91

Quantitative Restrictions

1. Save as otherwise provided in this Treaty, and in particular Articles 88, 89 and 90, and in Schedules II, III and IV, a Member State shall not apply any quantitative restrictions on the importation of goods which are of Community origin.

2. Except as otherwise provided in this Treaty, and particularly in Articles 89 and 90, and in Schedule III, a Member State shall not apply any quantitative restrictions on exports to any other Member State.

3. This Article shall not prevent any Member State from taking such measures as are necessary to prevent evasion of any prohibitions or restrictions which it applies to imports from or exports to third States provided that less favourable treatment is not granted to Member States than to countries outside the Community.

4. "Quantitative restrictions" means prohibitions or restrictions on imports into, or exports from, any other Member State, as the case may be, whether made effective through quotas, import licences or other measures with equivalent effect, including administrative measures and requirements restricting imports or exports.

o Art. 91(4) RTC gives a list of quantitative restrictions- quotas; import licenses and

measures having equivalent effect to a quantitative restriction(MEQR)

o What type of quantitative restriction is it?

From the facts we see that it is not an import license required nor is ir a

quota. It therefore is a MEQR.

What does the ECJ say on MEQRs? Note the equivalent provision in the

TFEU on quantitative restrictions- Art. 34 TFEU (deals with imports) and

art. 35 TFEU (deals with exports). The ECJ defined a MEQR in Case 8/74

Dassonville as ‘all trading rules enacted by a Member State which are

capable of hindering directly or indirectly, actually or potentially, trade

between Member States’. This is known as the Dassonville formula.

What happened in the Dassonville case? In this case the Belgian

authorities required a certificate of origin and none were obtained by the

traders in question because it could only be obtained from the British

customs. The defendants argued that the requirement of a certificate of

origin was a MEQR and prohibited by art. 34 TFEU. The ECJ held that

the requirement for a certificate of origin was in fact a MEQR as it

potentially discriminated against parallel importers who would be unlikely

to be in possession of the requisite documentation.

Applying the decision of Dassonville in the fact pattern presently, it would

appear that the requirement for a certificate of origin was a MEQR since it

has the effect of impeding the free movement of goods. Also, the goods

are Community origin goods and imposition of quantitative restriction on

those goods would be breach of art. 91(1) RTC.

Also see the International Fruit Company case- As established in the

International Fruit Company case, a license requirement, even if a pure

formality, violates the rule against quantitative restrictions on imports

o Whether the MEQR can be justified under art. 226 RTC-

It may be justified under art. 226 (1)(b) RTC (health reasons). However

subject to art. 226(2) RTC Member States taking such measures must

notify COTED- something which St. katts did not do here.

o Conclusion- the requirement is in breach of art. 91 RTC. No notification made to

COTED for adopting measures so breach of art. 226 (2) RTC.

As established in the International Fruit Company case, a license requirement, even if a pure formality,

violates the rule against quantitative restrictions on imports

APRIL 2012 #3

3. Answer BOTH questions (A) and (B).

(A) The State of Barbarous decides to impose a new 20% tax on the sale of fruit wine for

the purposes of combating alcohol abuse by certain segments of its population. Fruit

wine in Barbarous is mainly imported from the neighbouring State of Trini, and only

about 5% of sales are of locally produced fruit wine. One rum distillery in Barbarous has

started to produce 'light fruit rum' and this does not attract any sales tax.

You are an expert of EU and CARICOM law. The Minister of Trade of the State of Trini

seeks your advice about the legality of Barbarous' new sales tax.

Whether the tax imposed can be seen as having a directly or indirectly

discriminatory effect within the Community-

o According to art. 90 RTC, imposed prohibition on the imposition of fiscal charges

on community origin goods. In this case given, the goods are of Community

origin pursuant to art. 84 RTC (since the goods are produced within the

Community).

o On a reading of art. 90(1)(b) RTC it seems that there is a prohibition on imported

Community origin goods which are not produced in the Member State or which

they do produce but not in substantial qualities in such a way to protect the

domestic production. It appears from the fact pattern that the purpose of the

imposition of the tax on the fruit wine from Trini is to protect the local producer

that produces ‘light fruit rum’.

o Discuss art. 110 TFEU (the EU equivalent to art. 90 RTC)-

In art. 110 TFEU there are two paragraphs which include taxation on

similar products (art. 110(1) TFEU) and products in competition (art.

110(2) TFEU). In Case 170/78 Commission v UK (Re Tax on Wine and

Beer) the ECJ explained the scope of the application of art. 110(2) in

respect of products in competition. In this case the UK maintained

different levels of internal taxation on beer and wine. Wine was mostly

imported while beer was a predominantly domestic product. The

Commission decided that this tax difference amounted to discrimination

against imported wine and that by increasing the tax on wine the UK

government was encouraging consumers to buy beer. The UK argued the

two products were not interchangeable and there was no breach of art.

110 TFEU. The ECJ held however that beer and wine were to a certain

extent substitutable as they were capable of meeting the same needs of

consumers. They were products in competition and the ECJ found the UK

in breach of art. 110(2) TFEU.

It can be seen therefore, that by looking at the consumer needs of the

fruit wine and that of the local fruit rum, they can both be interchangeable

and be considered as products in competition. Thus they are likely to fall

under art. 90(1)(b) RTC and would be in breach of this provision.

o Also, since the tax is imposed directly on fruit wine alone it has the effect of being

a directly discriminatory tax.

o The next issue would be whether this tax can be justified under art. 226 RTC-

There are no provisions under art. 226 RTC which may justify the

purpose of the tax imposed. The only exception which may be applicable

is art. 226 (1)(a) RTC which seeks to protect public morals and safety but

this is debatable.

o Art. 90(2) RTC places an obligation on the Member State to notify COTED on

any additional fiscal charges which they may impose. The State of Trini did not

notify COTED so they will be in breach of this provision.

o Conclusion- 1) Tax on imported fruit wine is discriminatory taxation contrary to

art. 90 (1)(b) RTC and; 2) failure to notify COTED results in breach of art. 90(2)

RTC.

(B) The port of Jameeca is so heavily used that traffic congestion in the neighbourhoods

around it has become unbearable. The Jameecan Minister of Trade decides to modernize

the port and authorizes the imposition of a new 'freight processing fee' to raise funds.

The freight processing fee is assessed at 15% of the value of all goods passing through

the port. No other changes are made to any customs processes. After having to pay

$300,000 USD in freight processing fees, Super Shipping Inc, a company incorporated in

the State of Trini, brings a claim against Jameeca before the Caribbean Court of Justice

in its original jurisdiction and is granted special leave to do so.

You are the attorney for Super Shipping Inc. Write submissions for your clients on the

merits of its case, being certain to refer to appropriate EU authorities for comparative

purposes.

Whether the ‘freight processing fee’ can be classified as an import duty pursuant

to art. 87 RTC in breach of the RTC-

o Note the definition of an import duty in art. 1 RTC- ‘any tax or surtax or customs

and any other charge of equivalent effect whether fiscal, monetary or exchange

which are levied on imports except those notified under art. 85 RTC and the

other charges which fall within that article’.

o Imposition of import duties are prohibited by Member States

o The next issue would be what kind of import duty is it- is it a customs duty or any

charge of equivalent effect? EU law helps us in this regard

In Case 24/68 Commission v Italy the ECJ defined what is meant by a

charge having equivalent effect (CEE) (which is prohibited under art. 30

TFEU). The ECJ in this case held that a CEE was any pecuniary

charge, however small and whatever its designation and mode of

application, which is not a custom duty in the strict sense… even if it is

not imposed for the benefit of the State, is not discriminatory or

protective in effect and if the product on which the charge is imposed is

not in competition with any domestic product.

What the previous case gives us is certain characteristics of a CEE which

can aid us in determining whether a charge is a CEE.

An important clue in knowing whether there is the imposition of a CEE is

that the charge is imposed on the crossing of a frontier and that the

charge does not have as its effect, the protection of a domestic product.

Since the charge is imposed when the ships reach at the border this

means that they are charged on the crossing of a frontier which is

indicative of a CEE.

o Having established that it is a charge of equivalent effect and in breach of art. 87

RTC we now need to know whether this charge can be justified under art. 226

RTC-

Nothing in art. 226 RTC can justify the charge imposed.

At its meeting on January 6, 2013 the Council for Finance and Planning (COFAP) considers a

proposal from the Secretariat for a Caribbean Community (CARICOM) Fiscal Discipline Policy

(Policy). The Policy requires all Member States to maintain a balanced budget and temporarily

withdraws voting privileges on all CARICOM organs for any state found not to have done so.

The state of St. Katts, which is currently building a new airport, argues that the Policy is

inappropriate at this time. The Chairman of COFAP ignores the comments of St. Katts and

suggests that the matter should go to vote. St. Katts objects, declaring that the Policy is related to

an issue of critical importance to its national development. The representative from Jameeca says

that a vote must be held on the matter of critical importance first. Nine Member States vote to

recognize the matter as being of critical importance to St. Katts. The Chairman then moves for a

vote on the Policy. Twelve Member States vote in favour of the Policy, two abstain, and St. Katts

votes against it. The representative from St. Katts immediately storms out of the meeting in

anger.

Eight months later St. Katts is unable to balance its budget and the matter comes up at a meeting

of the Conference. Before deciding whether to sanction St. Katts under the Policy, the Chairman

of the Conference asks the Prime Minister of St. Katts for his views. The Prime Minister states

that the Policy 'has always been, and is, morally and economically unsound and should be

terminated immediately.'

The Chairman places the issue of whether St. Katts should be excluded from voting before the

Conference for its decision. Twelve Member States vote in favour of the exclusion, two abstain,

and St. Katts votes against it.

Later in the same meeting the Conference decides that all airlines which are owned by

CARICOM nationals have the right to land in any CARICOM airport without being charged any

landing fees. The last sentence of the decision provides that the 'decision is immediately and

directly effective.' No state modifies its laws following this decision. An Air Jameeca flight lands

in St. Katts and the Airport Authority imposes its usual $5000 USD landing fee. Air Jameeca, a

CARICOM company, refuses to pay it and St. Katts bars its planes from using its airport. Air

Jameeca brings the matter to the Caribbean Court of Justice and argues that its rights under the

Conference decision are being violated.

You are the Clerk to the President of the Caribbean Court of Justice. Critically advise the

President on all of the legal issues raised in the above facts as well as whether the Court can take

jurisdiction over the case.

CONCLUSION-

St. Katts in contravention of the Conference Decision.

APRIL 2013 NO 3

PART A:

IMPORT DUTIES- art 1 RTC- means any tax or surtax of customs and any other charges of equivalent

effect whether fiscal, monetary or exchange, which are levied on imports except those notified under

Article 85 and other charges which fall within that Article;

Whether the Environmental Levy is considered as an import duty or part of internal taxation-

o Import duties are under art. 87 RTC

o Hints to know whether it is an import duty or tax?

Since it applies to all fruits and vegetables then it is not only restricted to

imported goods but also domestic goods. Therefore it is a tax under art. 90 RTC.

o Taxation falls under art. 90 RTC – art. 90 (1) (a) – (b) RTC will likely be read as

mutually exclusive. Either a good must be classified as being (1) a like domestic good, or

(2) a substitute which enters into direct competition with a domestic good. In both cases

in order for a fiscal charge to contravene art. 90 RTC it must protect the domestic

product.

Does the Environmental levy fall under art. 90 RTC (a) or (b).

The facts does not tell us what type of product it is. It just gives the term

“products”. It can be assumed that these may or may not be substitutes.

o What type of tax is it? Is it direct or indirect tax?

Firstly, discuss whether it is a Community origin product. Yes it is a COmmuity

origin product because it is produced in St Lucea (pursuant to art. 84 (1) RTC).

Since art. 90 RTC says that Member States shall not impose any fiscal charges in

imported goods of community origin then the tax placed on St Lucea’s goods are

unlawful.

Discriminatory taxes are imposed by reason of nationality. This may be in in

contravention of art 7 RTC

Indirect discrimination are imposed for reasons other than nationality. In the

present scenario, it may be indirect discrimination since only the products from

St. Lucea have any packaging. Therefore it can be said that domestic goods of

Trinee will not the affected by the taxation since most of the fruits and vegetables

sold in Trinee are sold in open shelves or bins. Borrowing from jurisprudence of

the ECJ, the Case 112/84 Humblot. In this case, one level of tax was imposed on

cars w/ engines 16 hp and another level of tax was imposed with those with

engines 16hp and above. Such a tax scheme was origin neutral and not directly

discriminatory. However, since all French cars fell below the 16 hp rating and the

majority of import vehicles fell above it the result was disproportionate and

therefore indirectly discriminatory to the importer Humblot. Therefore it was in

contravention of ar. 110 TFEU.

In the present case , the Member State of Trinee did not inform COTED of any

additional fiscal charge it applied. This therefore is a breach of its obligation

under art. 90(2) RTC.

o Whether the Environmental Levy can be justified under art. 226 RTC-

It may be- under art. 226 (1)(j) RTC which provides for conservation of natural

resources of the preservation of the environment. It may be argued by Trinee that

the purpose of the Levy is for environmental purposes and therefore may be

justified under art. 226 RTC.

o Conclusion- not in breach of art. 90 (1) RTC; but failed to notify COTED of the

additional charge so breach of art. 90 (2) RTC.

PART B-

Whether the meeting of Mighty Cells and Cheapy Cells can be classified as an agreement or

concerted practices in contravention of art. 177(1)(a) RTC-

o EU Competition law (art. 101 TFEU and art 102 TFEU governs competition law in the

EU)defines an agreement as informal, gentlemen’s agreements (ACF v Commission).

Concerted practices extends to situations where w/o any formal agreement parties

knowingly substitute practical cooperation for the risks of competition (ICI v

Commission [Dyestuffs]). Concerted practices may be proved by parallel conduct which

cannot be justified on the basis of normal market forces. In ICI v Commission the ECJ

first examined the concept of a concerted practice. The Court said that concerted

practices refer to a form of co-operation between undertakings which, without having

been taken to the stage where an agreement properly so called has been concluded,

knowingly substitutes for the risk of competition practical cooperation between them.

o Based on the facts presented the dinner meeting can be classified as a concerted practice.

This is made evident further by the result of the meeting- the fact that the cell phone

prices were identical and also because the meeting at dinner did not come to a definite

conclusion to become an agreement.

o Therefore, in breach of art. 177(1)(a) RTC.

Whether the concerted practice has as its object the prevention, restriction or distortion of

competition within the Common Market-(STM)

o The aim of the parties was to increase their joint market share in St. Katts and with this

in mind they reduced cell phone prices to 45% and 50% respectively. This, according to

the ECJ case Societe Technique Miniere must be possible to foresee with a sufficient

degree of probability on the basis of a set of objective factors of law or fact that the

agreement in question may have an influence, direct or indirect, actual or potential, on the

pattern of trade b/w Member States.

o From this, we can conclude that the effect of the concerted practice b/w Mighty Cells and

Cheapy Cells had the potential effect of distorting competition within the market.

Whether the concerted practice can be justified -

o One way in which a concerted practice can be justified is by proving that the concertation

is not the only reason for the parallel conduct between the parties. This was made clear in

the ECJ case of Ahlstrom v Commission. However, in the present case, the only reason

for the parallel conduct , based on the evidence given, is the meeting.

APRIL/MAY 2013 #1

The following issues arise in the given scenario:

Whether Gold Is Us Ltd has standing to bring the matter before the CCJ

The issue here deals with the interpretation of art. 222 RTC which deals with locus

standi of private entities. This issue of locus standi by private entities has been brought

up in a number of original jurisdiction decisions before the CCJ in the past. In TCL Ltd.

and TGI Inc. v Guyana (grant of special leave) the CCJ established the grounds for

standing for private entities before the CCJ. In this case it was argued by Guyana, inter

alia, that the claimants, companies registered in Trinidad and Guyana respectively were

not considered ‘persons, natural or juridical’ within the meaning of art. 222 RTC. The

CCJ in this case went to great lengths to set out the basis for standing for private

entities in matters before the Court. Firstly, the Court said that private parties were

intended to be part of the regime of the RTC and referred to art. 211 (d) RTC which

confers jurisdiction on the court in contentious proceedings for the interpretation and

application of the RTC which included, inter alia, applications by persons in accordance

with art. 222 RTC concerning interpretation and application of the RTC.2 The Court did

adopt the restrictive meaning of ‘national’ in art. 222 RTC based on the literal

interpretation but rather adopted a teleological approach interpreting it in light of its

object and purpose and said that it was enough that the company was registered or

incorporated in the country.3

The Court in the TCL v Guyana case mentioned above also introduced

revolutionary concepts such as the doctrine of correlative rights when they said that the

obligations set out in the RTC are imposed on Member States collectively- capable of

yielding a correlative right that enures directly to the benefit of private entities.4 In this

case the CCJ set out the test for bringing a claim before the Court and they said that

there were two requirements which needed to be satisfied. They included:

2 TCL Ltd and TGI Inc v Guyana [2009] CCJ 1 (OJ), paragraph 18. 3 Ibid, paragraph 28. 4 Ibid, paragraph 32.

1. The treaty intended that a right conferred on a Contracting Party shall fall to

the benefit of such person;

2. Such person was prejudiced in respect of enjoyment of that benefit.

With respect to the standard of proof the court said that the claimant merely needed to

show an arguable case.

To prevent Gold Is Us Ltd from bringing an action before the AG of Barbarous and the

Commissioner of Police would frustrate the achievement of the goals of the RTC; and it

would go contrary to the meaning of art. 7 RTC against non-discrimination.5

The factual scenario indicated that Gold Is Us Ltd is incorporated in Barbarous and that

is sufficient to ground them standing as a private entity in the matter at hand.

Whether the owner can bring the matter before the CCJ in his personal

capacity

Of relevance here is art. 214 RTC6 which is titled ‘referral to the Court’. It has the

effect of allowing nationals to refer matters involving the interpretation and application of

the Treaty to the CCJ. Mention should be made on the case Johnson v CARICAD7, a

case which, while the facts are not of relevance here, the principle is. In this case the

CCJ said that the defendant could not be a proper party to be sued in the CCJ since it

did not act for the Community and was not its alter ego with the result that it had no

jurisdiction. In order for the CCJ to hear his matter, there firstly needs to be a matter of

dispute arising from his rights under the RTC. If the case of Maharaj Furniture and

Appliances Ltd v The Comptroller of Customs and Excise8were to come before the

courts again, this provision, art. 214 RTC could be invoked so his issue can be dealt

with at the CCJ level. Presently, the owner of the company can bring the matter before

the CCJ in his individual capacity by using the referral procedure of the court.

Whether there has been a breach of any rights conferred on persons

(private entity or individual) by the implementation of the Conference

Decision

5 Ibid, paragraph 40. 6 Art. 214 RTC- Where a national court or tribunal of a Member State is seised of an issue whose resolution

involves a question concerning the interpretation or application of this Treaty, the court or tribunal concerned shall, if it considers that a decision on the question is necessary to enable it to deliver judgment, refer the question to the Court for determination before delivering judgment. 7 [2009] CCJ 3 (OJ). 8 TT 1994 HC 146.

The claimant argues that the new legislation is unconstitutional since it interferes

with both his and his company’s right not to be subject to arbitrary search. According to

art. 240(1) RTC the decisions of the competent Organ need to be subject to the

constitutional procedures of the Member States firstly before they can be legally binding

upon nationals of such Member States. Looking at the fact pattern, the Conference

Decision did not have the vote of St. Vincy. From this, there is need to interpret art.

28(1) RTC which says that decisions that the Conference shall take decisions by an

affirmative vote of all its members. This means that there needs to be unanimity for the

decision to be binding however, that section is subject to, inter alia, section 28(2)

abstentions are not to be construed as impairing the validity of the conference

decisions. In the case Shanique Myrie v Barbados9, Barbados argued, inter alia that

since there was no unanimous vote by the Conference, then the Conference decision

could not be binding but the Court rejected this. This leads to the conclusion that the

Conference Decision is valid and legally binding on nationals of Barbarous.

The ability of the Court to judicially review decisions was raised in previous

original jurisdiction cases before the CCJ- TCL v CARICOM [2009] CCJ 4 (OJ) (Merits)

and in Hummingbird Rice Mills v Suriname and CARICOM [2012] CCJ 1 (OJ)

(merits). In TCL v CARICOM the CCJ said that based on the provisions of the RTC it

has the power to scrutinize the acts of Member States and the Community and to

determine whether they are in accordance with the rule of law.10 Similarly in the

Hummingbird case the CCJ reiterated the point mentioned in their earlier case that the

transformation of the CSME into a rule based system created a regional regime under

the rule of law.11 From the case law therefore, there seems to be a right to judicially

review the acts of Member States as well as the Community to determine whether they

are in accordance with the rule of law. If there are breaches of rights as claimed by the

company and the owner thereof, then given the fact that the CSME is based on a

regime founded on the rule of law, those acts should be struck out by the Court. In

Joined Cases C-402/05P and C-415/05P Kadi, the ECJ said that the respect for human

rights is a condition of the lawfulness of Community acts and that measures

incompatible with respect for human rights are not acceptable in the Community.

(Remember the Court also said in TCL v CARICOM [2009] CCJ 4 (OJ) at paragraph

[40] that it has to strike a balance when judicially reviewing acts of Member States).

However, given the nature of the criminal activity which the State is trying to

suppress, then by giving notice when a search will be conducted will make the entire

process a waste since illegal traders in gold will have time to shred documents and hide

all evidence of any traces of illegal activities. This seems to be in accordance with the

9 [2013] CCJ 3 (OJ), paragraphs [43] – [48]. 10 [2009] CCJ 4 (OJ), paragraph 38. 11 [2012] CCJ 1 (OJ), paragraph 30.

principle of proportionality. The CCJ alluded to this principle of proportionality in the

Myrie decision when commenting on the exceptions to right of definite entry into

Member States and they said that such measures must not be disproportionate to the

objectives sought.12 Therefore, it is my opinion that given the nature of the activities

aimed at preventing, the State of Barbarous did not act in breach of any rights conferred

on the company nor its owner.

Other issues worth mentioning:

Whether the decision made by COTED is legally binding

COTED is a community organ and is mentioned at art. 15 RTC. Common voting

procedures in Community Organs and Bodies are mentioned in art. 27 RTC. Any

recommendation made by COTED must be made by a 2/3 majority would not be legally

binding (art. 27(6) RTC).

Whether the decision made by Community Council is binding

The Community Council is mentioned in art. 13 RTC. Voting in the Community Council

is laid down in art. 29 RTC. Art. 29(1) RTC provide that decisions made by the

Community Council must be by a qualified majority vote (QMV) which is defined in

art.29(2) as no less than ¾. From the fact pattern only eleven of the 15 Members voted

and this is less than the ¾ limit placed in art. 29(1) RTC. Therefore the decision is void

since the ¾ majority was not met.

Whether the Conference Decision is binding and whether the lack of

support by St. Vincy annuls that decision.

Pursuant to art. 28(1) RTC decisions made by the Conference are binding and

abstentions shall not be construed as impairing the validity of decisions of the

Conference. Therefore the abstention of St. Vincy would not affect the nature of the

decision because it would still give effect to the Conference Decision and make it

binding on Member States.13

12 [2013] CCJ 3 (OJ), paragraph 70. 13 See Shanique Myrie v Barbados [2013] CCJ 3 (OJ), paragraphs [43]-[48]- where the Court was of the view that an abstention or an omission to vote was not to be construed as impairing the validity of a Conference Decision

providing that Member States making up ¾ of the Member ship of the Community vote in favour of the decision.