Opinion by Marguérite Nahar
ILLEMSTAD – In Curaçao likewise as in every other self-respecting Western civilized society the elected Parliament is in charge of enacting legislation and the officiating government is entrusted with the task of implementing such legislation.
In the event of mandatory law, no one, not even the government is permitted to disregard the stipulations of the law. Particularly not when the legislation under consideration here provides for an autonomous governmental body not only to implement, but also to enforce the due observance of the law with punitive sanctions to be imposed on the violators.
In Curaçao such an autonomous governmental agency has been created in the form of the FTAC, the Free Trade Authority Curaçao. This FTAC is empowered:
(1) to ascertain that free and unimpeded fair trade practices are observed,
(2) particularly by the prohibition of unfair competition or undue restrictions to fair competition and
(3) to see to it that no unjustifiable price control comes into being by mutual agreements among market partners about the prices to be charged to end users and consumers for their products in a certain market section.
This legislation is to be compared with the Sherman Act in the U.S.A.
Let’s take a close look at the operative legislation in Curaçao concerning fair trade practices, particularly the sections that prohibit undue restriction of competition among various participants into the market and the undue formation of co-operative alliances with a view to negate possibilities for all market partners to compete with one another in a fair and equitable manner, the so-called prohibition to form a kartel.
In the currently operative legislation in Curaçao these above-mentioned objectives have been inserted and the autonomous governmental agency (FTAC) has been installed. This FTAC has to enforce the due observance of those objectives. In this respect “autonomous” means that there exists no obligation for the FTAC in any hierarchical sense, to be answerable to the politicians officiating in the government at any given moment in time.
Nevertheless the government of Curaçao recently implemented a most incomprehensible, even baffling policy, presumably aiming at future economic growth. The government forced all its government-owned corporations to form a strategic alliance through a co-operative agreement with one single foreign entity. In so doing the government not only effectively excluded any other foreign entities to co-operate with their government corporations in the fields described in the co-operative agreement, nor any local entities for that matter, but it also effectively restricted fair and equitable competition for other prospective parties to enter into similar agreements with the government-owned corporations.
These government-owned corporations are involved in crucial and essential services to the public, they include Aqualectra, provider and distributor of electricity and water, Selikor, in charge of sanitation by collecting garbage on a daily basis, CPA, operator of the ports, responsible among other things for the guiding and mooring of vessels, KTK, provider of piloting services, Curoil, provider of the bunkering services in the harbors and fuelling services at the airport, as well as the distribution of fuel and gas in the local community, and various other government-owned corporations of lesser importance.
In this way not only did the government violate statutory provisions of mandatory law, but it also created an absolutely unnecessary relationship of dependency on a foreign entity for the most crucial public functions in the Curaçao society.
Well, it remains to be seen whether the FTAC will fulfill its tasks and duties by carefully scrutinizing the contents and purport of the articles in the recently contracted co-operative agreements. We will see!!!
By Marguérite Nahar
Juriste Marguérite Nahar was tot medio oktober 2016 extern juridisch adviseur van Refineria di Korsou (RdK)