Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Dr Lansana GBERIE

4.   The Seychelles first would like to thank the Secretariat for the assistance provided in processing the notification IP/N/1/SYC/11 and IP/N/1/SYC/O/4. The Seychelles Fair Trading Act, 2022 (Act 12 of 2022), entered into force on 1 August 2022 and was notified to the WTO on 29 July 2022 under Article 63.2 of the TRIPS Agreement (other Laws and Regulations). A little background in the notifying text. The Government of Seychelles, through the Fair-Trading Commission, sought funding for a consultant to address the shortcomings of the previous Fair- Trading Acts, following which a report with feedbacks were provided, and the draft Fair-Trading Bill was prepared. 5.   An Independent Fair-Trading Tribunal was set up as an effective redress mechanism for all consumer and competition cases and chaired by a chairperson who is a full-time magistrate. The investigative powers of the Commission have been enhanced to create a new level of enforcement. In that pursuit, this Act repeals the Fair-Trading Commission Act (Cap 267), the Fair Competition Act (Cap 266), and the Consumer Protection Act (Cap 257). 6.   Seychelles does not foresee any substantial changes in the immediate future, as this new Act will give confidence to businesses through the provision of consistent application, enforcement, and adjudication of competition and consumer matters. 7.   The main elements of the new Act: The Fair-Trading Commission is the central institutional organ for the effective administration of the Act. The Commission is tasked with several functions, including enforcing compliance with the Act; advising the Government on laws affecting fair trading, competition, and consumer protection, and making recommendations to the Government on the actual or likely anti-competitive effects or consumer protection issues that arise out of the implementation of the Act. 8.   It establishes the Fair-Trading Tribunal to deal with appeals against the decisions of the Commission's complaints of alleged prohibited conduct, applications for breaches of undertakings, and applications for the authorisation or permission of proposed mergers recommended by the Commission. The introduction of the Fair-Trading Tribunal is not only commendable as a principle of best international practice but is also good for democracy and the rule of law. 9.   In case of consumer protection and fair competition, the Act extensively makes provisions for the protection of consumer protection rights. Accordingly, it protects, amongst many others, the rights to fair, just, and reasonable terms and conditions, disclosure of information, fair and responsible marketing, fair and honest dealing, choice, safety, fair value, good quality, and safety for the performance of services and supply of goods. 10.   Regarding fair competition, the Act makes provision for, among others, the abuse of a dominant position, restrictive horizontal and vertical practices, mergers, and factors to be considered for determining the aforementioned practices and market inquiries. 11.   Offenses and penalties for contravening the provisions of the Act are also clearly specified in the Act. Finally, the Act mandates the minister responsible for trade in consultations with the Fair-Trading Commission to make regulations for all matters which are required or necessary to be provided for in giving effect to the provisions of the Act. 12.   Briefly about the main features of the Act: a. it is tailor-made and recognises the particular circumstances of Seychelles; b. considers tried and tested mechanisms, draws on their successes, and learns from their failures; c. provides for the imposition of a fixed penalty in certain cases; d. strengthened and included additional enforcement provisions; e. increase in penalty quantum; f. introduction of a corporate immunity provision which is an effective tool to fight cartels; g. introduces more provisions into regulations for greater flexibility given the dynamics of competition and consumer laws; h. exclusion of financial consumer protection from the Bill; i. remitting the final decision on mergers in the financial sector to the Central Bank and other regulatory financial bodies; j. provides for a tribunal rather than a Board of Commissioners for an accessible, effective and efficient system of redress for consumers and businesses; k. Any decision or order of the Tribunal may be served, executed, and enforced in the same manner as a judgment or order of the Supreme Court under the Seychelles Code of Civil Procedure (Cap 213); l. provides a mechanism for continuity so that the current unheard cases before the Board of Commissioners can be heard; m. Introducing a cap of SCR 5 million on complaints for consumer protection; n. Time limitation on bringing complaints to the Commission reduced from three years to two years. 13.   In term of next steps, in order to ensure the full functioning of the Fair-Trading Act 2022, new regulations are required under the new Act. These regulations are being drafted, and as such, we expect they will be available by the end of December 2022. 14.   In order to ensure transparency, these regulations may be shared with WTO Members at the appropriate time.

The Council took note of the notifications and the statements made.
1. The Chair invited the Secretariat to update delegations on the notifications under various provisions of the TRIPS Agreement that had been submitted since the meeting in July 2022, and said he would then offer the floor to delegations wishing to introduce their notifications.
2. The representative of the Secretariat said that the Council had received the following notifications, under Article 63.2 of the TRIPS Agreement:
a. Thailand had provided a Notification of the Ministry of Commerce on the Determination of Counterfeit Goods and Pirated Goods as Goods Prohibited from Export;
b. Saudi Arabia, Kingdom of had notified its Competition Law and the corresponding implementing Regulations;
c. Tonga had notified consolidated 2020 versions of its Industrial Property Act and Regulations, its Copyright Act, its Protection of Layout Designs Act and Regulations, its Protection of Geographical Indications Act and Regulations, and its Customs and Excise Management Act;
d. The Seychelles had notified its 2022 Fair Trading Act;
e. The European Union had notified three EU Regulations pertaining to the quality schemes for agricultural products and foodstuffs, to the establishment of Union Symbols for PDOs, PGIs and TSGs, and to the GIs for aromatized wines;
f. Brazil had notified an amendment to its Patent Statute;
g. Ukraine had notified a law concerning the Protection of Interests of Persons in the Sphere of Intellectual Property during the Martial Law in connection with the Military Aggression of the Russian Federation against Ukraine;
h. Chinese Taipei had notified consolidated versions of its Patent Act, its Copyright Act, and its Copyright Collective Management Organization Act;
i. Italy had notified Decrees relating to the Prohibition of Ambush Marketing ahead of the organization of the 2026 Olympic Games in Italy, to Design protection, and to establishing specialized intellectual property divisions of tribunals and courts of appeals. It had also notified amended procedural rules relating to plant varieties, to patent applications that designate Italy, and to the setting up of an online platform for fee payment;
j. France had notified legislation relating to genetic resources and associated traditional knowledge, to ensuring compatibility with the Unified Patent Court jurisdiction, to trademarks, trade secrets and to the transformation of utility model applications into patent applications, among others.
3. Bulgaria, Austria, Lithuania and Greece had notified a contact point for IP enforcement under Article 69. Austria had also notified a contact point under Art 67.
4. The Chair invited delegations that had provided new or revised notifications to the Council to introduce those notifications. The representatives of Thailand, Seychelles, the European Union, Chinese Taipei, Brazil, Ukraine, Saudi Arabia, the Kingdom of, Tonga, the Russian Federation, and the United States of America took the floor.
5. The Chair thanked delegations for the information provided on their notifications. He noted that notifications to the Council were not keeping up with the actual development of laws and regulations relating to TRIPS and emphasized that Article 63.2 of the TRIPS Agreement was not a one-off requirement. It was a core element of the TRIPS transparency arrangements, and a central part of the Council's substantive work. It obliged Members to notify any new or amended laws in the area of TRIPS. He urged Members to complete any outstanding initial notifications and to keep up to date with notifications on subsequent amendments. The same applied to the Checklist of Issues on Enforcement which was established by the Council as an element of Members' notification obligations. He pointed out that the e-TRIPS platform made fulfilling these transparency obligations much easier.
6. The requirement included the notification of legislative changes made to implement the special compulsory licensing system to export medicines covered by Article 31bis of the TRIPS Agreement. More than 50 WTO Members, including most of the world's major exporters of medicines, had adopted implementing legislation that allowed them to use the System as exporters and/or importers. But only 21 Members, including the European Union, had formally notified such measures to the TRIPS Council. The notification of all relevant laws and regulations could assist Members in preparing for the potential use of the System, which was a matter of immediate practical concern at that moment. It would also help the Secretariat in its efforts to provide informed technical support to Members in this area.
7. A more comprehensive picture of how the special compulsory licensing system had been implemented in Members' domestic law could also help Members' on-going discussions about how this particular TRIPS flexibility worked in practice, and about the causes of any potential delays or hindrances in using the system.
8. The Chair recalled that all these notifications could be made through the e-TRIPS Notification Submission System (NSS). E-TRIPS not only facilitated the submission of information by Members – it also permitted digital access, consultation, and analysis of this information through the e-TRIPS Gateway, an easy-to use interface to search and display information related to the TRIPS Council. The Secretariat was available to respond to any question in that regard. He also referred to the latest "Annual Report on Notifications and other Information Flows" issued by the Secretariat in March 2022 in document , which summarized submission rates and identifies trends for each of the primary TRIPS transparency mechanisms and would be updated ahead of the first formal meeting of the TRIPS Council in 2023.
9. The Council took note of the notifications and the statements made.
IP/C/M/106, IP/C/M/106/Add.1