I Background
Article 3 of the Fair Trade Commission Organic Statute stipulates that the Fair Trade Commission (FTC) may request or commission local government authorities to undertake on its behalf matters that fall within the FTC's purview, while Paragraph 1, Article 9 of the Fair Trade Law states that: "The term 'competent authority' as used in this Law means the Fair Trade Commission, Executive Yuan, at the central government level; the metropolitan government at the metropolitan level; and the county (or city) government at the county (or city) level." It is thus clear that the FTC may request the assistance of metropolitan, county and city governments when handling matters relating to the Fair Trade Law. This raises the following questions: (1) Where the FTC commissions a local government authority to assist with matters relating to the Fair Trade Law, should this be deemed to constitute delegation of authority, as defined by Paragaph 2, Article 15 of the Administrative Procedure Law, or should it be deemed to constitute cooperation between authorities, as defined by Paragraph 2, Article 19 of the Administrative Procedure Law, or mandation, as defined by the Local Government Law? (2) If the provision of assistance with matters relating to the Fair Trade Law by local government authorities should be classed as mandation, then what procedures should be followed? Should the legal effectiveness of any measures taken be ascribed to the FTC or to the local government authority in question? If a private citizen has an administrative punishment imposed on them as a result, to which agency can they appeal for redress? Is the FTC authorized to supervise the implementation of matters relating to the Fair Trade Law that have been mandated to a local government authority? If it is, then the methods through which such supervision should be implemented, and the extent of supervision, need to be considered. (3) The current plan for government re-structuring in accordance with the Central Government Organization Law designates the FTC as one of five independent agencies ranking as Level Two government agencies. Paragraph 1 of Article 5 of the draft revision to the Fair Trade Law states that: "The term 'competent authority' as used in this Law means the Fair Trade Commission," while Article 48 states that: "Objections to punishments or decisions imposed by the competent authority shall be handled in accordance with the judicial review procedure." In other words, once the revised version of the Fair Trade Law comes into effect, the FTC will be an independent government agency, and the judicial review procedure, not the Administrative Appeals Law, will apply to objections to punishments imposed by the FTC. Once the FTC has become an independent agency, will the scope of its authority need to be revised? (4) Of the FTC's areas of responsibility as defined in Article 25 of the Fair Trade Law, are there any responsibilities that should be transferred to local government authorities? This is another issue that should be considered. With the FTC currently involved in the revision of both the Fair Trade Commission Organic Statute and the Fair Trade Law, the purpose of the present study is to use theoretical analysis and case studies to clarify the theoretical and practical issues referred to above, and to achieve the following aims:
- To analyze the meaning, implementation procedures and monitoring of delegation of authority and cooperation between authorities as defined by the Administrative Procedure Law and mandation as defined by the Local Government Law, and to compare them.
- To examine Article 3 of the Fair Trade Commission Organic Statute and clarify the procedures applying to the delegation of authority, which agency administrative responsibility should be attributed to, and the methods whereby the FTC can supervise implementation (and the extent of supervision that is permitted).
- To undertaken an in-depth examination of the impact that the transformation of the FTC into an independent government agency will have on Article 3 of the Fair TradeCommission Organic Statute, and whether the scope of the FTC's responsibilities should be revised.
- To evaluate whether any of the FTC's responsibilities should be transferred to other agencies, and how the FTC should handle those responsibilities that are not suitable for transfer to another agency, but which require the collaboration of local government authorities to be implemented effectively.
II Key Recommendations
It is suggested that Article 3 of the Fair Trade Commission Organic Statute should be revised to read: "The FTC may request the assistance of local government authorities with respect to matters falling under the FTC's purview." While Paragraph 1 of Article 9 of the Fair Trade Law states that "The term 'ompetent authority' as used in this Law means … the metropolitan government at the metropolitan level; and the county (or city) government at the county (or city) level," Article 25 of the Fair Trade Law state that responsibility for investigation, review and imposition of punishments in cases relating to the Fair Trade Law rests with the FTC. It is clear that the original intention of those who drafted the Fair Trade Law was that the FTC should be responsible for the investigation of, and imposition of punishments in, cases relating to the Fair Trade Law; there was no intention that authority should be delegated to the local government level. Furthermore, examination of how the FTC has operated in practice shows that there has been no example of the FTC delegation authority to oversee or supervise matters relating to the Fair Trade Law to local government authorities, and that it has not been necessary for the FTC to mandate other agencies to act on its behalf.
Given that, according to the current version of the Fair Trade Law, the FTC has responsibility for the formulation of fair trade policy, for reviewing mergers and approving exceptions to the regulations governing collusion, and for investigating violations of the Fair Trade Law, it is clear that metropolitan, cocunty and city governments have no authority in this area. What is more, the FTC has been positioned as an independent agency. Independent agencies are expected to handle the matters entrusted to them professionally using a collegial approach; there are no grounds for them to delegate any part of their responsibilities to another agency, or for them to be expected to provide guidance or supervision to other agencies. The provisions of Article 2 of the Fair Trade Commission Organic Statute, which state that the FTC is required to provide guidance and supervision to municipal, county and city government agencies handling matters relating to the Fair Trade Law, should therefore be eliminated; by the same token, the provisions of the last part of Paragraph 1, Article 9 of the Fair Trade Law relating to local government authorities are unnecessary, and should also be eliminated.There may be some concern that eliminating the provisions of Paragraph 1, Article 9 of the Fair Trade Law relating to local government authorities may render it difficult for the FTC to secure the assistance of local government authorities in cases relating to the Fair Trade Law. However, analysis of the types of assistance that the FTC currently receives from local government authorities – e.g. providing information about the Fair Trade Law and application forms, referring cases to the FTC, assisting with promotional activities, etc. – shows that this assistance mostly relates to supporting functions where local government authorities assist the FTC by performing actions that it is not able to perform immediately itself; examples would include helping with the collection of evidences and passing on information to the FTC. It is not a case of outsourcing entire areas of the FTC's responsibilities to local government authorities. The assistance that local government authorities provide should really be thought of as constituting cooperation between authorities as defined by Article 19 of the Administrative Procedure Law, where one government agency asked another agency to provide assistance, within the scope of its responsibilities, to facilitate completion of an administrative task. This is not the same as delegation of authority or mandation. Furthermore, given that Article 19 of the Administrative Procedure Law already specifies the grounds on which an agency can request assistance from another, the written format to be used, the acceptable grounds for refusing such to give such assistance, and how the costs should be shared between the agencies concerned, etc., and given that, since its establishment in 1992, the FTC has drawn up the Guidelines for Coordination Meetings Between the Fair Trade Commission, Executive Yuan and Local Government Authorities and the Guidelines for the Taking of Coordinated Action by the Fair Trade Commission, Executive Yuan and Local Government Authorities with Regard to Matters Relating to the Fair Trade Law, to provide a legal basis for requesting assistance from local government authorities in matters relating to the Fair Trade Law, and has had these regulations approved by the Executive Yuan, it can be seen that solid foundations for collaboration between the FTC and local government authorities have already been established, obviating the need for the inclusion of additional provisions in the relevant organic statutes.