The following section is aimed at examining the competition law issues involved in a single window or other paperless trade system.
IV.E.1 Does a competition law exist? If so, is it applicable to single window operators or other paperless trade services providers?
The term “competition law” may refer to measures intended to ensure equal opportunity to enter and compete in markets and to prevent some market participants from taking advantage of their size or market position to unduly affect their competitors. These measures may be referred to as anti-trust legislation.
Competition law may also include rules to ensure fair competition in business practices at a microeconomic or transactional level by banning activities such as price discrimination, predatory pricing and misrepresentation.
There is no global multilateral agreement on trade and competition policy. Some regional bodies, such as the European Union, have such rules. However, a State may have an obligation under WTO agreements or other international treaties related to competition laws (mentioned in the checklist) to review its laws when establishing a single window or other paperless trade system.
Competition law may affect single window operators or other paperless trade services providers through their general application or through specific provisions that address such services. Their impact may be to control their participation in the domestic markets, to prevent abuse of their size or strategic position in serving these markets, or to ensure their survival in the face of foreign competition.
Alternatively, a country may choose to exempt providers of paperless trade services, including single window operators, from competition law. This may be done in light of the nature of the services offered and the public interest and may be associated with a licensing mechanism for eligible providers. Such an exemption would normally apply only to the rules about market entry, and not to transactional rules.
IV.E.2 Does the law give authorized economic operators preferential access to the paperless trade system?
Certain commercial operators may obtain “advanced economic operator” or “authorized economic operator” (AEO) status, which gives certain rights to expedited service or filing with government agencies, or even access to the single window itself. AEO are selected on the basis of the frequency and volume of their interaction with customs and are considered reliable customs partners.
Since all users should be able to access the paperless trade system on an equal basis, AEOs’ preferential access to paperless trade services may require an exemption from the application of competition law.
IV.E.3 Are paperless trade service providers selected on a competitive basis? Are foreign providers admitted?
The end goal of paperless trade facilitation may be the establishment of a single national trade platform for all trade-related exchanges involving both public and private operators. However, historically the evolution of paperless trade systems has been based on the development of pilot projects and their aggregation in one or a limited number of larger systems, such as single windows. The operators of those systems may be chosen by competitive bid or may be subject to licensing. The selection process and its criteria may have implications for competition law. For instance, considerations relating to the security of sensitive data and of its transmission may also be relevant to justify the choice of a certain operator or of its features (for example, by limiting the selection to national service providers).