Since 1980, there has been private competition enforcement in Argentina. Following recent legal and case law developments, a more consistent approach to the private enforcement system of competition law is expected.

Since 1980, there has been private competition enforcement in Argentina as a material part of the antitrust enforcement system for compensation damages suffered as a result of antitrust violations. Nevertheless, we might say that the actions for damages on antitrust matters have not taken off yet.

In 2018, there was a new act that introduced a specific chapter on damages. Perhaps, it was one of the most important developments of the Act. In fact, it has made an essential progress in order to facilitate the proceedings of the claim before judicial court.

In this sense, the Act establishes:

1. Individuals and legal entities may file a claim for damages, in accordance with the Argentine legislation, before the judge having jurisdiction. The Act adopts the criterion of the legal standing to sue for both direct and indirect victims. In the Act, no reference is made to the ‘passing-on’ defense, but considering that any aggrieved party (including indirect victims) may claim compensation for damages, it is reasonable to consider that the defendant may allege that the overcharges has been transferred ‘downstream’ in the market.
2. The resolution of the competition authority, once it becomes final, shall have the force of res judicata.
3. Summary proceedings shall apply.
   1. 4.     Full compensation for the harm sustained, including punitive damages.
   2. Joint and several liability, without detriment to any other recovery actions that may be applicable.
   3. In case of leniency program, a company that has obtained the exception shall only be liable when the plaintiff can prove that full compensation may not be obtained from the other infringing companies.
   4. The statute of limitations will be the following:

• 3 years as from the time when the infringement was committed or the damaged party should have become aware of the violations; or
• 2 years since the decision issued by the competition authority becomes final.

The Act does not provide anything for the possibility of filing class actions for damages. Nevertheless, our National Constitution recognizes rights of general public interest. Considering that, the Supreme Court of Argentina, through the precedents called “Halabi” and “PADEC”, has incorporated collective redress mechanisms into our legal system and has clarified the application of the constitutional rules.

Later, the Supreme Court has created the Public Register of Collective Process and approved a guideline, until Legislative Branch enacts a specific act. Until now, we have only certain bills submitted on the Congress.

On the other hand, Consumer Protection Law has also established special rules for collective process, such as: legal standing to sue in favor of consumer association, free proceeding and publicity of the sentences, among others.

These proceedings may be an important tool for the purpose of permitting the growth of damages actions for antitrust violations.

In fact, these general criteria has been upheld in Argentina under the decisions laid down in 2 cases called “Autogas” and “Unión de Usuarios y Consumidores”, which is a consumer protection association. These cases were the result of the anticompetitive behavior attributed to Yacimientos Petrolíferos Fiscales S.A. (“YPF”) by means of a resolution passed in 1999.

YPF was punished for abuse of its position of dominance in the market of bulk supply of liquid petroleum gas in Argentina. The Antitrust Authority concluded that YPF had put in place a commercial policy tending to export the gas and prohibiting its repatriation under certain contract terms in order to keep domestic prices higher than export prices.

Even when the abuse was committed in the wholesale market, more specifically in the fractionation plants, local authorities understood that the damages had occurred in the following stage of the commercialization chain, i.e. in the final sale to consumers.

The conduct had taken place between 1993 and 1997. The decision was upheld by the Court of Appeals and then by the Argentine Supreme Court in 2002.

Ten years later, a Domestic Commercial Court resolves the first claim for damages initiated by Auto Gas S.A. (“Autogas”), a company created for the distribution of gas in Argentina. Autogas had claimed compensation for damages caused, basically, by abuse of dominant position and breach of contract. YPF filed its defense based on two main exemptions: status of limitations and passing-on defense. The judge admitted partially the complaint and ordered YPF to pay in favour of Autogas compensation in money.

The Judge considered that abuse of dominant position had been finally established by the Antitrust Authority. Also the judge has shed some light on the viability of the passing-on defense by resolving to sustain in part the defense filed by YPF. This judicial trial was terminated in 2018, before the Supreme Court.

In 2004, an association called Union de Usuarios y Consumidores submitted a claim on behalf of all final consumers (indirect purchasers) for the excess of the portion of the damage not granted to the direct purchaser.

The conditions in order to go ahead with a collective action had been met: a single fact which may damage rights of a group of people; common effects; and, individual suits should not be justified.

Also in this case, the Court of Appeals resolved that the abuse of dominant position had already been analyzed by the Antitrust Authority. Consequently, the court focused on the existence of damages and their estimation.

With regard to the enforcement of the judicial decision, the judge considered that it was impossible to identify each of the final consumers. As a consequence of that, the first instance court ordered YPF to transfer the amount of 98million argentine pesos, plus interests, to a domestic trust fund. Such amount would be used in the expansion of the natural gas infrastructure in lower class areas.

In December, 2017, the Federal Court of Appeals resolved the first claim for damages initiated by an association on behalf of final consumers. However, this decision is still subject to an appeal process before the Supreme Court.

Summing up, the judicial precedents and the recent developments in the Act allow us to understand that the general conditions have been established and, in our opinion, a more consistent development of the private enforcement system of competition law is expected.

From our point of view, both public and private enforcement are necessary in order to maintain and recover the integrity of the markets and to protect the general economic interest, which was identified with the concept of total market surplus.