RESTRICTEDWORLD TRADE
ORGANIZATIONWT/WGTCP/W/172
6 July 2001
(01-3373)
Working Group on the Interaction
between Trade and Competition Policy
EXCEPTIONS, EXEMPTIONS AND EXCLUSIONS CONTAINED IN
MEMBERS' NATIONAL COMPETITION LEGISLATION
Note by the Secretariat
I. INTRODUCTION
1. This note has been prepared in response to a request made during the Working Group's
meeting of  22–23 March 2001 that the Secretariat prepare a table or tables on the subject of
exceptions and exemptions from national competition laws.  The tables were to be prepared on thebasis of:  (i) information that had been and/or would be provided by Members in their written and oral
contributions; and (ii) information available from a study that was prepared by the OECD on this
subject in 1996 (hereinafter referred to as the "1996 OECD Study").
1  The tables would be similar to
those that were contained in the Overview of National Competition Legislation prepared by the
Secretariat (document WT/WGTCP/W/128/Rev.1) and were to be factual and descriptive in nature.
2. Since the request was made, the delegation of Switzerland has confirmed that information on
exceptions and exemptions that had been provided in an earlier contribution (document
WT/WGTCP/W/29)2 remains relevant for purposes of the current note.3  Otherwise, the note is based
solely on information provided previously by Members and on the 1996 OECD Study.  In addition to
the OECD study itself, this note refers to a table contained in an OECD Working Paper also published
in 1996,4 which consolidates information provided in the 1996 study (hereinafter referred to as the
"1996 OECD Working Paper").
3. On the basis of written and oral contributions that have been made by Members to the
Working Group, it is clear that the terms "exception", "exemption" and "exclusion" can have specific
meanings in the context of particular national legal systems.  Nevertheless, at a general level, the
terms have been used somewhat interchangeably by Members to refer, variously, to sectors and/or
areas of activity and/or categories of conduct that either are excluded altogether from the applicationof national competition law or are subject to differential treatment under such laws.  The term
"authorization" has also been used to refer to instances when conduct that would otherwise be
prohibited by the domestic competition law is permitted.
4. The breadth of exceptions, exemptions and exclusions varies significantly across countries.
To some extent, this appears merely to reflect th e fact that some countries rely less on express
legislative provisions and more on the enforcement process in determining whether a particular
                                                     
1 OECD, Antitrust and Market Access:  The Scope and Coverage of Competition Laws and
Implications for Trade (Paris:  1996).
2 Hereinafter in this note, documents issued in the series WT/WGTCP/W/- are referred to as "W/…".
Documents issued in the series WT/WGTCP/M/- are referred to as "M/…".
3 Informal communication from the Switzerland to the WTO Secretariat dated 29 March 2001.
4 OECD , Trade and Competition:  Frictions after the Uruguay Round, Working Paper No. 165 (Paris,
1996).WT/WGTCP/W/172
Page 2
activity or instance of conduct should not be covered by the domestic competition law or should be
subject to special treatment under the law.
5. Other differences in national approaches should also be noted.  In some cases, the criteria
used to determine whether an exception, exemption or exclusion are broad and general, whereas in
other cases, the criteria are extremely detailed.  In some jurisdictions, the question of whether anexception, exemption or exclusion applies depends on the outcome of a potentially extensive case-by-
case or "rule of reason" analysis.
5  In others, guidelines, regulations or block exemptions are used to
give guidance in at least a portion of the cases.6
6. In categorising exceptions, exemptions and exclusions under national competition law, a basic
distinction to be drawn is that between, on the on e hand, exceptions, exemptions or exclusions of a
sectoral nature and, on the other hand, those of a non- sectoral nature.  Sectoral exceptions, exemptions
and exclusions often reflect historical decisions, based on political and economic rationales that maybe specific to the country in question.  Sectors may be entirely or partially excluded.
7  A related
distinction is that between, on the one hand, explicit exceptions, exemptions and exclusions and, on
the other hand, implicit ones.  The former are typically contained in legislation or regulations whereas
the latter arise when the application of competition law is displaced by industry-specific regulatory
regimes or other manifestations of state ownership or direction.  Sometimes, the relevant industry-specific regulation expressly states that the competition law does not apply.  In other cases, legal
principles or doctrines exist that provide that laws of general application, such as the domestic
competition law, must defer to more specific legislation.
8
7. Regarding non-sectoral exceptions, exemptions and exclusions, these often relate to specific
business arrangements or practices that, although prima facie  anti-competitive or potentially so, are
deemed in particular circumstances to enhance efficiency and/or strengthen competition.  Such
arrangements or practices may, alternatively, be considered to have ambiguous effects with respect to
competition and, therefore, be subjected to a case-by-case analysis to determine whether or not they
are prohibited.  Exceptions, exemptions or exclus ions may also exist in relation to state-owned
enterprises9 or government-encouraged or sanctioned business practices.10
8. Finally, some regimes provide that the prohibitions contained in the domestic competition law
do not apply if the conduct or activity in question does not have an "appreciable" effect on
competition.  These are sometimes referred to as "de minimis" exceptions.
9. This note is divided into two main sections.  Part II presents information regarding
exceptions, exemptions and exclusions of a sectoral nature.  It reproduces a table contained in the
1996 OECD Working Paper which, in turn, is base d on the 1996 OECD Study.  In addition, it refers
to comments made by Members in their written or oral contributions during meetings of the Working
Group in which they identified exceptions, exemptions or exclusions of a sectoral nature that exist in
their domestic regimes.  Part III presents information regarding exceptions, exemptions and
exclusions of a non-sectoral nature which is gleaned from Members' contributions on their national
competition legislation and other subjects.  This section of the note does not draw on the 1996 OECD
Study, which may nonetheless be consulted for elaboration on specific legislative provisions of thecountries included in that study.
                                                     
5 OECD, W/21, Annex II, II, para. 16.
6 OECD, W/21, Annex II, II, para. 16.
7 OECD, W/21, Annex, III.c, para. 17.
8 OECD, W/21, Annex, III.c, para. 18.
9 OECD, W/21, Annex, III.c, para. 20.
10 OECD, W/21, Annex, III.c, para. 19.WT/WGTCP/W/172
Page 3
10. A number of limitations relating to the approach used in preparing the document should be
noted.  First and foremost, since the document is based, to a large extent, on information provided by
Members and observers but they have not been invited to make contributions specifically on this
subject, the document can in no way be considered as a comprehensive compilation of relevant
exceptions and exemptions.  For such a compilation to be prepared, additional information wouldneed to be solicited from Members, through a questionnaire or other tool.  Second, the information
compiled from the 1996 OECD Study and the 1996 OE CD Working Paper does not, of course, reflect
the situation in countries not surveyed for that study or subsequent developments in those countries.
II. EXCEPTIONS, EXCEPTIONS AND EXCLUSIONS OF A SECTORAL NATURE
11. The 1996 OECD Study provides detailed information on sectoral exemptions from the
national competition laws of ten OECD countries and the European Community.
11  Set out below is a
table (Table I) which is contained in the 1996 OECD Working Paper and which consolidatesinformation contained in the 1996 OECD Study.
                                                     
11 The laws reviewed were those of Canada, France, Germany, Hungary, Japan, Mexico, Portugal,
Sweden, the United Kingdom, the United States and the European Community.WT/WGTCP/W/172
Page 4TABLE I
SECTORAL EXEMPTIONS United States Japan Germany France United
KingdomCanada Mexico Portugal Sweden European
Union
Agriculture, forestry and fisheries
  Agriculture CO,AG CO,CA AG,RPM AG AG CO AG
  Fishery CO,AG CO,CA AG AG
  Forestry AG CO
Manufacturing
  Tobacco CO,CA
  Sericulture CA
  Liquor CA,RPM SE AG
  Sugar CA
  Books RPM RPM RPM RPM RPM
  Newspaper AG RPM ME ME RPM
  Cosmetics RPM
  Pharmaceuticals RPM SE AG RPM
  Coal and steel SE SE SE SE SE
Energy
  Electricity NM AG SE SE SE
  Gas NM AG SE SE
  Oil AG AG
Transportation
  Airline AG AG AG AG
  Railroad ME,AG NM AG AG AG
  Road transport, trucking ME,AG CA AG AG AG
  Maritime and inland water shipping AG CA AG AG CA SE AG
  Harbour AG CA CA SE
  Warehouse AG CA
Communication ME SE
  Audiovisual and radio broadcasting ME
Wholesale and retail trade
  Wholesale CA,ME
  Retail CA AG
Finance and insurance
  Banking or credit institutions ME CO,CA AG AG SE ME,AG ME,AG
  I n s u r a n c e A GC AA G ME,AG AG
  Securities, underwriters, commodity
futureME,AG AG
Other private services
  Restaurants and hotels CA
  Professional sports AG
  Medical and paramedical services SE
Note: Sectoral exemptions indicates the type of exempted activities. The type of exemptions includes: NM (Natural monopoly); CO (Co-o peratives and
association); RPM (Resale price maintenance); CA (Cartels and recommendations); AG (Certain types of agreements); SE (Statutory  exemptions); and ME
(Merger).
Source: Excerpted from Table 8, OECD, Trade and Competition: Frictions after the Uruguay Round, Working Paper No. 165 (Paris, 1996) .  Information for this table was drawn from OECD, Antitrust and Market
Access:  The Scope and Coverage of Competition Laws and Implications for Trade (Paris:  1996).WT/WGTCP/W/172
Page 5
12. Additional information regarding exceptions, exemptions and exclusions of a sectoral nature
is available from written and oral contributions made by Members during meetings of the Working
Group.  Such information relates to a broader group of countries than were surveyed for the 1996
OECD Study or, in some cases, is more recent.  N onetheless, since countries have not been invited to
make contributions specifically on the subject of sectoral exceptions, exemptions or exclusions, the
information is incomplete, can in no way be regarded as comprehensive and is not susceptible topresentation in tabular form.
13. The following are some of the specific exceptions, exemptions and exclusions of a sectoral
nature that have been referred to in written and oral contributions to the Working Group:
- In Chile, the competition law exists in parallel with a group of special laws that are
enumerated in the law which, mainly for reasons of public order, govern specific
economic and occupational activities in sensitive sectors of the national economy.
Specifically, provisions relating to State mining reserves, the Sanitary Code andprovisions regulating banking and other specified sectors continue to be valid.
12
- In relation to the European Communities, liner shipping conferences benefit from an
exemption from normal competition rules under EEC Regulation 4056/86.13 Further,
special rules exist in relation to the agriculture and defence sectors as well as to various
kinds of public services.14 As for the member States of the European Communities:
- In Austria, partial exceptions apply in relation to sellers and publishers of
books, art, music, magazines and newspapers.15
- In Finland, exemptions exist in relation to agreements or arrangements which
concern the labour market, or agricultural producers or associations of
producers in certain circumstances.16
- In Germany, exemptions exist for certain sectors of the economy such as
transportation, agriculture, credit institutions, copyright associations and theenergy sector.
17
- In the Netherlands, an exemption exists for concentrations in the financial
sector (although the exemption was due to expire two years after the lawcame into force).
18
- In Portugal, exclusions exist in relation to credit institutions and finance and
insurance companies.19  Further, competition law in Portugal allows
publishers to fix the price of their own books (except school books),
newspapers, magazines and other publications.20
- In Hungary, a block exemption exists in relation to insurance agreements..21
                                                     
12 Chile, W/75, para. II.3.c.
13 European Communities, W/140,  Annex.
14 M/2, para. 27.
15 European Communities, W/34, Section II, Austria, para. VII.
16 European Communities, W/34, Section II, Finland, para. H(1).
17 European Communities, W/34, Section II, Germany.
18 European Communities, W/34, Section II, The Netherlands.
19 European Communities, W/34, Section II, Portugal, para. 7.
20 European Communities, W/34, Section II, Portugal, para. 6.
21 Hungary, W/27, para. 4.WT/WGTCP/W/172
Page 6
- In Japan, exemptions exist in relation to cartels in specific industries such as
machinery, electronics and telecommunications22 and maritime services.23  Similarly,
exemptions exist in relation to public heal th-related industry cartels including in the
areas of hairdressing and laundry.24
- In Mexico, exemptions exist in relation to certain strategic areas reserved to the state
(among which are petroleum and other hydrocarbons, electricity and postal services),trade unions, privileges granted to intellectual property rights and, under certain
circumstances, export cooperatives.
25  
- In Norway, an exemption exists in relation to first hand sales (that is, sales from
producers/importers within Norway) of agricultural, forestry and fisheries products.
However, the exemption does not apply in re lation to tenders issued in those sectors.26  
- In Romania, a block exemption exists for vehicles in relation to agreements on
distribution, servicing and spare parts provided that certain criteria are met.27   
- In Turkey, the Competition Board of Turkey has issued communiqués in relation to a
group exemption concerning exclusive distribution agreements, exclusive purchasing
agreements and distribution and servicing agreements so as to apply that exemption to
motor vehicles.28
- In the United States, sectoral exemptions exist in relation to professional baseball and
insurance.29
III. EXCEPTIONS, EXEMPTIONS AND EXCLUSIONS OF A NON-SECTORAL
NATURE
14. This section of the note provides, in tabular form, information on exceptions, exemptions and
exclusions of a non-sectoral nature that is contained in the written and oral contributions of Membersand observers.  As emphasised in Part I, since Me mbers and observers have not been invited to make
contributions specifically on this subject, this information can in no way be considered
comprehensive.  Indeed, comments by some Members make it clear that the extent of exceptions,
exemptions and exclusions is likely wider than is reflected in the table contained in this section.  As
an illustration, the existence of exemptions for export cartels has been referred to in a general way ona number of occasions in the Working Group, by various countries.
30  However, only one country,
namely Japan, is noted as having been identified a specific exemption for export cartels in its national
legislation.31
15. In addition to the limitations noted above in paragraph 10 above, it should also be noted that
Table II clearly represents a "broad-brush" approach to the categorisation of exceptions, exemptionsand exclusions of a non-sectoral nature and does not reflect distinctions that may be drawn between
these terms within domestic regimes.   Further, some  of the categories included in the table that have
                                                     
22 Japan, W/134, para. II(2)(f).
23 Japan, W/168, para. 1(iv).
24 Japan, W/134, para. II(2)(g).
25 Mexico, W/54, para. 2.
26 Norway, W/31, para. 5.1.1.
27 Romania, W/38.
28 Turkey, W/113, para. 11.
29 United States, W/142, para. 1(a).
30 European Communities, W/115, para. A.1; Hong Kong, China, W/94, para. 6(d) and W/141,
para. 10(b).
31 Japan, W/134, para. II(2)(d).WT/WGTCP/W/172
Page 7
been used to classify exceptions, exemptions and exclusions could, in principle, be the subject of a
series of sub-categories.  It should also be noted that the table does not distinguish between, on the
one hand, situations in which the activity or conduct in question is not considered to breach domestic
competition law provisions and, on the other hand, situations in which the competition law provisions
may have nominally been breached but the activity or conduct in question has, nevertheless, been
allowed due to the existence of a particular exception.
16. With regard to notation used in the Table, it simply notes, with a check-mark ( /g51), if,
according to the information available, a particul ar matter is addressed in a Member's competition
law.  It does not distinguish between situations where the element in question is generally applicable
or only partially so.WT/WGTCP/W/172
Page 8TABLE II
NATURE OF EXCEPTION/ EXEMPTION/ EXCLUSION
Member/
ObserverStatutory
MonopoliesSMEs R&D
AgreementsEfficiency
Enhancing
MergersOther Practices/
Arrangements
Considered to
Enhance
EfficiencyOther Public
Interest
ConsiderationsCompliance
with Laws or
StandardsOther
BOLIVIA /g5132
Nature of exception
not specified.
CANADA /g5133/g5134/g5135/g5136
Arrangements
involving exchangeof statistics.
CHILE /g5137
Statutory
monopolies in
relation tocertain basicservices./g51
 38
COLOMBIA /g5139/g5140/g5141/g5142
CROATIA /g5143
EC /g5144/g5145/g5146/g5147
                                                     
32 Bolivia, W/97, para. 2.
33 Canada, W/51, para. 2.2.1.
34 Canada, W/51, para 2.2.6.
35 Canada, W/51, para. 2.2.1.
36 Canada, W/51, para. 2.2.1.
37 Chile, W/75, para. II.3.a.
38 Chile, W/75, para. II.3.b.
39 Colombia, W/44, para. 3.1.4.
40 Colombia, W/44, para. 3.1.4.
41 Colombia, W/44, para. 3.1.4.
42 Exception exists in relation to procedures, methods, systems and options for the use of common facilities.  Colombia, W/44, pa ra. 3.1.4.
43 Croatia, M/5, para. 86.WT/WGTCP/W/172
Page 9TABLE II
NATURE OF EXCEPTION/ EXEMPTION/ EXCLUSION
Member/
ObserverStatutory
MonopoliesSMEs R&D
AgreementsEfficiency
Enhancing
MergersOther Practices/
Arrangements
Considered to
Enhance
EfficiencyOther Public
Interest
ConsiderationsCompliance
with Laws or
StandardsOther
Austria /g5148/g5149
Denmark /g5150/g51
De minimis
exception51
Finland /g5152/g5153
Restraints on
competition outside
Finland
France /g5154/g5155
Germany /g5156/g5157/g5158
Greece /g5159
                                                                                                                                                                                                                                                                   
44 Applies to undertakings entrusted with operation of services of general economic interest or having the character of a revenue -producing monopoly. European
Communities, W/78, para. I.3 (I).
45 European Communities, W/115, para. A.1.
46 European Communities, W/62, para. II.1.
47 European Communities, W/34, Section I, para. A; W/62, paras. II.1 and II.2.
48 European Communities, W/34, Section II, Austria, para. II.
49 European Communities, W/34, Section II, Austria, para. III.
50 European Communities, W/34, Section II, Denmark.
51 European Communities, W/34, Section II, Denmark.
52 European Communities, W/34, Section II, Finland, para. H(2).
53 European Communities, W/34, Section II, Finland, para. H(2).
54 European Communities, W/34, Section II, France.
55 European Communities, W/34, Section II, France.
56 European Communities, W/34, Section II, Germany.
57 European Communities, W/34, Section II, Germany.
58 European Communities, W/34, Section II, Germany.
59 European Communities, W/34, Section II, Greece, para. I.3.WT/WGTCP/W/172
Page 10TABLE II
NATURE OF EXCEPTION/ EXEMPTION/ EXCLUSION
Member/
ObserverStatutory
MonopoliesSMEs R&D
AgreementsEfficiency
Enhancing
MergersOther Practices/
Arrangements
Considered to
Enhance
EfficiencyOther Public
Interest
ConsiderationsCompliance
with Laws or
StandardsOther
Italy /g5160
Luxembourg /g5161
The Netherlands /g5162/g5163/g5164
Agreements of
minor significance
Portugal /g5165
Legally awarded
concessions./g5166
Restrictions on
competition thatderive fromspecific laws.
Spain /g5167/g5168
Sweden /g5169
United Kingdom /g5170
HUNGARY /g5171/g5172
JAPAN /g5173/g51 74/g5175/g5176
                                                     
60 European Communities, W/34, Section II, Italy.
61 European Communities, W/34, Section II, Luxembourg.
62 European Communities, W/34, Section II, The Netherlands.
63 European Communities, W/34, Section II, The Netherlands.
64 European Communities, W/34, Section II, The Netherlands.
65 European Communities, W/34, Section II, Portugal.
66 European Communities, W/34, Section II, Portugal, para. 6.
67 European Communities, W/34, Section II, Spain.
68 Applies to practices stemming from the application law or regulatory provision issued pursuant to a law. European Communities,  W/34, Section II, Spain.
69 European Communities, W/34, Section II, Sweden.
70 Act does not apply to the Crown including central government and certain public authorities . European Communities, W/34, Sect ion II, United Kingdom.
71 Hungary, W/27, para. 4.
72 Applies to agreements of minor significance or those concluded between undertakings, which are not independent of each other a re disregarded. Hungary, W/27, para.
7(b).WT/WGTCP/W/172
Page 11TABLE II
NATURE OF EXCEPTION/ EXEMPTION/ EXCLUSION
Member/
ObserverStatutory
MonopoliesSMEs R&D
AgreementsEfficiency
Enhancing
MergersOther Practices/
Arrangements
Considered to
Enhance
EfficiencyOther Public
Interest
ConsiderationsCompliance
with Laws or
StandardsOther
Export and import
cartels.
MEXICO /g5177
MOROCCO
NORWAY /g5178/g5179
ROMANIA /g5180/g5181
SWITZERLAND /g5182/g5183
THAILAND /g5184
TURKEY /g5185
UNITED
STATES/g5186
                                                                                                                                                                                                                                                                   
73 Japan, W/134, para. II(2)(c).
74 Japan, W/134, para. II(2)(b).
75 Japan, W/134, para. II(2)(a).
76 Japan, W/134, para. II(2)(d).
77 Mexico, W/54, para. 2.1.
78 Norway, W/31, para. 5.1.2.
79 Price collaboration and market sharing allowed in some cases. Prohibitions do not apply to certain restraints between licensor  and licensee regarding licensee's right to
use a registered patent or design.  Norway, W/31, para. 5.1.1.
80 Romania, W/38.
81 Romania, W/38.
82 Switzerland, W/29, para 3.1.
83 Switzerland, W/29, para 3.2.
84 Act does not apply to acts of certain central, provincial, and local administration bodies; state enterprises; groups of farme rs; co-operatives or co-operative societies.
Thailand, W/150, paras. 20-21.
85 Turkey, W/76 and W/113, para. 11.
86 United States, W/67, para. 4.WT/WGTCP/W/172
Page 12TABLE II
NATURE OF EXCEPTION/ EXEMPTION/ EXCLUSION
Member/
ObserverStatutory
MonopoliesSMEs R&D
AgreementsEfficiency
Enhancing
MergersOther Practices/
Arrangements
Considered to
Enhance
EfficiencyOther Public
Interest
ConsiderationsCompliance
with Laws or
StandardsOther
VENEZUELA /g5187/g51
De minimis
exception formergers.
 88
__________
                                                     
87 Venezuela, W/86, para. 2.
88 Venezuela, W/86, para. 3.