*A conversation with Director Kross and Dr. Wessel Geursen
Earlier this year, one of the editors of eulawenforcement.com had the chance to discuss the interesting topic of the gestation of a competition authority and the challenges it faces in its first years of existence. This issue was at the core of the event ‘Competition law enforcement overseas: an interactive discussion with the Aruba Fair Trade Authority (AFTA)’, organized by the RENFORCE Building Block ‘Public Interest Ecosystems’ (PIE) at Utrecht Law School. In what follows below, we describe some of the main takeaways of our insightful conversation with the Director of the Aruban Fair Trade Authority (AFTA) Ernesto Kross and Dr. Wessel Geursen, a competition lawyer and specialist on the territorial scope of application of EU law.
The discussion began by outlining the specificities of small island economies, which – due to their size and remoteness – have to grapple with supply chain dependencies, high levels of market concentration in specific sectors and the problem of close ties between business owners, government and politics. In this context, the AFTA was inaugurated in December 2023 with the ambitious mandate to make markets work for consumers and businesses in Aruba. The authority was set up as an independent administrative body with legal personality. Additionally, Art. 4.19 of the Competition Ordinance 2020 explicitly provides that there shall be no exchanges between the minister and the authority when it comes to the handling of specific cases. While data of the authority’s de facto independence is still scant due to its youth, the AFTA is already busy with several antitrust probes in key economic sectors, as outlined below.
The first two years of AFTA’s functioning
One highlight of the past year has been the general study in the foodstuffs market, which was performed due to the high prices of these goods – statistics show that approximately 50% of the local population spends 40% of their budget on groceries. While the AFTA findings do emphasize that part of the high costs are due to ordinary market and non-market dynamics, i.e. expensive logistics, small market size and high taxes, there is also a reason to worry about potentially anti-competitive practices. For instance, the study suggests that exclusive distribution agreements between importers and wholesalers in the supply chain could be putting further and unnecessary upward pressure on the prices end consumers get. As a consequence of these insights, the AFTA has started two additional and more specific investigations – one on exclusive distribution agreements in the foodstuffs market and another on the levels of competition of undertakings that ship containers to Aruba. The results of these probes will be essential for fair competition and securing affordable prices for the Aruban population.
Beyond market studies, in its first year of existence, the AFTA has importantly also unearthed a cartel in the real estate sector, whereby the Association of Aruban Realtors (AAR) has withdrawn its ‘guidelines on commissions’, given that the latter contained by law forbidden price agreements between realtors (the agreements were on the levels of commissions that realtors would charge their customers and how the commissions should be split between the selling and buying realtor). Given the immediate cooperation of the AAR and the fast withdrawal of their guidelines, the AFTA decided to stop the investigation without a final infringement decision or imposing fines. The authority keeps monitoring the real estate market for potential infringements though.
Current and future enforcement actions
Regarding future enforcement challenges, the AFTA is bound to look into and potentially challenge the monopoly of multi-national payment platforms, such as Visa and Mastercard, which seem to be increasing merchant fees for simple debit card transactions on the territory of Aruba. These increases are expected to be eventually passed from merchants onto consumers. Such developments, according to the AFTA, will have ‘negative effects for the Aruban economy and will negatively impact consumers’ ability to pay’. The enforcer has sent requests to obtain further details into the fees that are charged to Aruban merchants and consumers, respectively. The findings of the AFTA in this respect will become available in the course of 2025. Although fighting merchant fees of multinationals as big as Visa and Mastercard might feel like a battle between David and Goliath, as Director Kross stipulated, it is important to make sure that imbalances of market power get addressed sooner rather than later. In this sense, keeping a close eye on the above development is paramount.
Finally, regarding additional future enforcement responsibilities for the AFTA, once the National ordinance for the administrative enforcement of consumer law fully comes into force, the AFTA is designated as the authority responsible for enforcing collective consumer rights infringements, while individual consumer rights infringements fall outside of the remit of the authority. Enforcement in this area is set to begin in 2026.
Going forward – drawing inspiration from EU law while developing ‘own-flavor’ competition
A lot has already been set in motion when it comes to the past, current and future enforcement actions of the AFTA. The authority is finding its bearings and aims at establishing itself as a strong enforcer, which is bound to be tackling some hard cases in the years to come.
To aid its initial enforcement steps, the authority seems to take strong inspiration from EU law and quotes judgments of the CJEU in its reasoning, as demonstrated by its recent decision Noord Medical Center N.V. vs. AZV/Stichting Ziekenverpleging Aruba, which – among others – concerned the definition of an ‘undertaking’ under Aruban law. However, as explained by Dr. Geursen, EU internal market law, including EU competition law, does not in principle apply to the Aruban territory because this territory is not formally part of the internal market (even though it is part of a Member State). Still, relying on EU (competition) law as a source of inspiration is very much possible and already embraced as a method for reasoning in AFTA decisions, as showcased by the Noord Medical Center case quoted above. In this sense, a close proximity is also sought with the Dutch legal system, which is subject to EU law and also serves as source of emulation. Dutch competition law “borrows” all material legal concept from EU competition law. The said influences also show in the Aruban competition act, which closely resembles the EU and Dutch texts, respectively.
In terms of regional dynamics, while within the Latin America and Caribbean area there is a general process of convergence on the substantive core of the statutory provisions of abuse of dominance and anticompetitive agreements, enforcement and remedies remain divergent. These developments are understandable, given the specificities of small island economies as identified by Michal Gal. Nonetheless, Aruba remains well connected regarding regional economic and competition policy, given its status of an observer in the Caribbean Community (CARICOM) trade block, as well as its full membership in the Association of Caribbean States.
All in all, the AFTA is on course of developing an own-flavor competition system, which caters to the specific needs of its economy, for example by introducing per se prohibitions. While views on the usefulness of per se rules in small market economies are rather nuanced, it could be argued that – for purposes of enforcement efficiency, strong deterrence and a lowered evidentiary burden – such approach is warranted, at least in the early days of the AFTA. To these ends, the authority is ambitiously enforcing against local and global threats to secure a proper market functioning in Aruba. Time will tell how this enforcement crusade will develop, but for now, as the proverbial David, the AFTA has come out swinging as a new competition power, protecting its thriving but closely knit economy.
- The First Steps of the Aruban Fair Trade Authority as an Antitrust Enforcer - December 31, 2025
- Not so flexible? The instrumental usage of soft law in EU telecommunications regulation - November 30, 2023
