In a comment published on 1st September, 2014, el author understands that the bills sent to the Congress by the Executive Branch, would introduce important reforms to the Argentine antitrust policy and regulation.

President Cristina Kirchner introduced three bills before the Congress concerning consumer relations to establish a new conflict resolution system, create a Price Observatory and amend the Supply Law.  

Such bills were passed by several committees of the Senate and will be discussed this week by the full Senate House. In addition to the amendment of the Supply Law, such bills will introduce significant changes in competition issues. Here, we would like to focus on the major of such issues: the bill specifically designates the Secretary of Trade as its enforcement authority. 

Thus, the creation of the National Court for the Defense of Competition (the Tribunal Nacional de Defensa de la Competencia, the “TDC”) as set forth in the Antitrust Law of 1999 would never be carried out. That is, the enforcement authority would no longer be a court independent from the Executive Branch, made up of members appointed on the basis of credentials and holding office for a specific amount of time, but a centralized authority reporting to the Executive Branch. This would be a legal recourse to avoid the creation of the TDC, something that all government authorities have been doing since 1999.  

The proposed change opposes Supreme Court’s decisions, which ordered the Executive Branch on several occasions to create the TDC, and considered that such an omission is a “legal scandal” (competent Appellate Courts’ decisions were similar).

It should be reminded that the LDC established the National Commission for Defense of the Competition (the Comisión Nacional de Defensa de la Competencia) as a temporary authority. This temporary appointment turned into something permanent. 

Even when countries more developed than Argentina have authorities strongly dependent on the central administration (for instance, USA in certain aspects), the positive experience of other countries with more independent authorities (such as Chile) shows that this is not only possible but also desirable. 

Contrary to what the bills propose in this respect, we understand that under a system which guarantees independence from the Executive Branch (similar to the one proposed by the LDC), higher guarantees may be granted, particularly in countries like Argentina, with Governments featured by excessive intervention. We sustain this, even considering that there are mechanisms to protect strategic political interests which could also be implemented. 

Such major changes should be the consequence of a serious, ordered and deep debate in which the participation of academic, professional, consumer and business institutions should be encouraged. 

The debate to define which antitrust policy is necessary for Argentina is long pending. Regulations in this matter have been relatively appropriate. However, we lack a clear policy to enforce such a law with foreseeability and certainty.   

Let´s hope these bills allow the debate to finally take place, so that we may finally have not only a good law but also a serious and reliable antitrust policy. 

To read the full comment (in Spanish), click on the following link: Política en Defensa de la Competencia: un debate pendiente – por Pablo Trevisán