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Text of the 2017 Canada–Ukraine Free Trade Agreement – Chapter 9: Competition policy, monopolies and state enterprises

Article 9.1: Definitions

For the purposes of this Chapter:

designate means a decision by a Party to establish, authorize, or expand the scope of a monopoly to cover an additional good or service, after the date of entry into force of this Agreement;

government monopoly means a monopoly owned or controlled through ownership interests by the national government of a Party or by another such monopoly;

in accordance with commercial considerations means consistent with normal business practices of a privately held enterprise in the relevant business sector or industry;

market means the geographic and product market for a good or service;

monopoly means an entity, designated by a Party, including a consortium or government agency, that in any relevant market in the territory of a Party is the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant;

non-discriminatory treatment means the better of national treatment or most-favoured-nation treatment as set out in the relevant provisions of this Agreement; and

state enterprise means an enterprise owned or controlled through ownership interests by a Party, except as set out in Annex 9-A.

Article 9.2: Competition Policy

1. For the purposes of this Article, “anti-competitive business conduct” means anti-competitive agreements, concerted practices or arrangements by competitors, anti-competitive practices by an enterprise that is dominant in a market, and mergers with substantial anti-competitive effects.

2. The Parties recognize that anti-competitive business conduct has the potential to distort the proper functioning of markets and therefore agree that anti-competitive business conduct is incompatible with the proper functioning of this Agreement in so far as it may affect trade between the Parties.

3. Each Party shall adopt or maintain measures to proscribe anti-competitive business conduct and take appropriate action with respect to that conduct. To this end, the Parties shall, upon request of a Party, discuss the effectiveness of measures undertaken by each Party. In its request, the requesting Party shall indicate how the matter affects trade between the Parties.

4. The measures each Party adopts or maintains to proscribe anti-competitive business conduct and the enforcement actions it takes pursuant to those measures shall be consistent with principles of transparency, non-discrimination and procedural fairness. Exclusions from these measures shall be transparent. Each Party shall make available to the other Party public information concerning such exclusions provided under its competition legislation.

5. The Parties recognize the importance of cooperation, with the aim of putting an end to anti-competitive business conduct and its adverse effects on trade. The Parties may conduct such cooperation through their competent authorities. Cooperation shall, as necessary, include communication of information between the Parties unless such communication is confidential under the legislation of the Party providing the information.

6. Each Party shall maintain its independence in developing and enforcing its competition law.

7. This Article is not subject to any form of dispute settlement under this Agreement.

Article 9.3: Monopolies

1. This Agreement does not prevent a Party from maintaining or designating a monopoly.

2. If a Party intends to designate a monopoly and the designation may affect the interests of a person of the other Party, the designating Party shall, whenever possible, provide prior written notification of the designation to the other Party.

3. Each Party shall ensure that a privately owned monopoly that it designates or a government monopoly that it maintains or designates:

• (a) acts in a manner that is consistent with the Party's obligations under this Agreement whenever the monopoly exercises regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant an import or export licence, approve a commercial transaction, or impose a quota, fee or other charge;
• (b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation and other terms and conditions of purchase or sale, except to comply with the terms of its designation that are consistent with subparagraph (c) or (d);
• (c) provides non-discriminatory treatment in its purchase or sale of the monopoly good or service in the relevant market; and
• (d) does not use its monopoly position to directly or indirectly engage in anti-competitive practices in a non-monopolized market in its territory that adversely affects the other Party, including through the monopoly’s dealings with its parent, its subsidiary or an enterprise with common ownership.

4. Paragraph 3 does not apply to procurement by a governmental agency of a good or service for governmental purposes and not with a view to commercial resale or with a view to use in the production of a good or the provision of a service for commercial sale.

5. For greater certainty, “purchase or sale of the monopoly good or service in the relevant market” in paragraph 3 refers to the sale of the designated monopoly good or service in the case of a designated monopoly supplier and to the purchase of the designated monopoly good or service in the case of a designated monopoly buyer.

Article 9.4: State Enterprises

1. This Agreement does not prevent a Party from maintaining or establishing a state enterprise.

2. Each Party shall ensure that a state enterprise that it maintains or establishes acts in a manner that is consistent with the Party's obligations whenever the enterprise exercises a regulatory, administrative or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant a licence, approve a commercial transaction or impose a quota, fee or other charge.

3. Each Party shall ensure that a state enterprise that it maintains or establishes accords non-discriminatory treatment in the sale of the state enterprise’s good or service to an enterprise in the Party’s territory that is owned or controlled, directly or indirectly, by the other Party, or a national or enterprise of the other Party.

Annex 9-A: Country-Specific Definitions of State Enterprises

For the purposes of Article 9.4.3 “state enterprise”, with respect to Canada, means a Crown corporation within the meaning of the Financial Administration Act, R.S.C., 1985, c. F-11 (Canada), a Crown corporation within the meaning of comparable provincial legislation or an equivalent entity that is incorporated under other applicable provincial legislation.