antitrust

(This article was originally published by Pablo Trevisán on LinkedIn Pulse, on 5th April, 2020; link).

Competition Law 27,442 (LDC), passed in May 2018, included several important innovations into the Argentine competition law regime.

Among others, it expanded the powers of the competition authority, which gave it greater independence, placing special emphasis on the seriousness of certain behaviours, in particular, collusive behaviour between two or more competitors.

The purpose of this brief comment is not to expand on the detail of the various developments of the LDC, we only try to make a few brief considerations about a new institute that received the LDC and that, apparently, has been overlooked to date.

We refer to Section 29 of the LDC, which provides: «The Competition Tribunal, in accordance with the provisions of the regulations, may by reasoned decision issue permits for the performance of contracts, agreements or arrangements that contemplate conducts included in Section 2 hereby, that at the discretion of the Tribunal do not constitute prejudice to the general economic interest. ”

It is important to remember that the new Section 2 of the LDC, referred to in Section 29, lists a series of conducts related to agreements between two or more competitors that, according to the new LDC, would constitute «absolutely restrictive practices of competition», it would be presumed «that produce damage to the general economic interest», would be «null» and «would produce no legal effect»; in addition to being liable to sanctions that may exceed several thousand million pesos.

The permits of Section 29 of the new LDC, can be a very valuable tool in certain circumstances, as long as they are used according to their purpose, on very particular cases and for duly justified reasons.

The situation we are currently facing, as a consequence of the various negative effects of the Covid-19 pandemic, provides the perfect framework to understand what this institute is about and to apply it in the way for which it was conceived by the legislator.

Since last month, we witnessed innumerable regulations that have been issued by the Executive Branch (as well as by the various provincial and municipal authorities, and various organizations).

During these weeks, the rule has been to hear references to concepts such as critical supplies, maximum prices, requests for increased production, various financial assistances, alleged shortages of certain products and medicinal, cleaning and sanitary supplies, among others.

For its part, the Ministry of Internal Commerce (SCI) resolved the suspension of procedural deadlines in the files that are processed by the National Commission for the Defence of Competition (CNDC). Notwithstanding this, an emergency filing mechanism was established and, although remotely, the CNDC and its entire team continue to work actively.

Likewise, around the world, the different competition authorities have also been reacting according to their respective situations and according to their applicable regulatory frameworks.

On the other hand, there have been many voices that suggest «mitigating», «relaxing» or «lessening» the application of competition rules, both in our country and abroad. We believe that this can be a very dangerous and unnecessary simplification, depending on how, when, where and for how long it is proposed.

In the case of our country, we start from the premise that Section 1 of the LDC provides that the Argentine competition regime protects the “general economic interest”. Said in more general terms, and leaving other more technical considerations aside, the general economic interest referred to by the LDC is none other than the public interest, applied to competition law and policy.

That said, it should be noted that the standards, principles and, not least, the spirit of the LDC continues – and must continue! – to have full force, even – or even more! – in the current situation of Covid-19.

In other words, collusion with a competitor continues to configure behaviour that is absolutely restrictive to competition and is presumed to cause damage to the general economic interest (Sections 2 and 3); abusing a dominant position in a certain market, either by setting abusive prices that impact consumers or by carrying out behaviours that could exclude competitors (Section 3, 5 and 6) or by carrying out economic concentrations whose object or effect is to restrict competition (Section 8), are still prohibited conduct under the LDC (Section 1).

However, it cannot be ignored that the different rules recently issued with the noble purpose of containing the spread of the pandemic in our country, could imply that certain people, whether they are natural (human) or legal persons, could be involuntarily immersed in complex situations, which could be framed in some of the previously mentioned behaviours.

In practice, there could be a collision of legitimate interests between various rules and behaviours, such as the interests that are intended to protect competition and those that are genuinely intended to protect the various health emergency rules issued during the last month.

To better illustrate, it would not be unusual for supermarkets or other players in the retail or consumer market distribution chain, at some point in the advance of the pandemic, to coordinate their behaviours to guarantee the provision of food; or that laboratories, distributors, drug wholesalers, pharmacies or others, must also agree on how to face the demand and supply of certain medicines or critical supplies in different regions of our country, just to name two critical areas -consumption and health- that, most likely, will be the most affected as the spread of the pandemic in our country progresses.

It is here where Section 29 of the new LDC takes its real dimension. Those entrepreneurs who find themselves in the aforementioned situation, on the one hand, are not exempt from complying with the competition rules, but on the other, they must also comply with the emergency rules.

In order to fully comply with the latter, the SCI –following the prior opinion of the CNDC- should analyse these cases and, if appropriate, issue clear permits, duly founded and of limited temporal and geographical scope, which would give certainty to all those who are faced with this dilemma.

Likewise, it could be the interested parties who may request these permits from the competition authority, justifying the reasons why they should be issued and, clearly, without them involving a letter of indemnity to commit any type of anti-competitive conduct.

If this is achieved, we will have successfully balanced the conflicting interests, probably contributing to a more optimal attack on the pandemic in the joint efforts of the public and private sectors, and, finally, the permits of the novel Section 29 of the LDC will have given birth healthily.

[1] Texto Ordenado de la Ley de Defensa de la Competencia 27.442 (acceso al enlace al 3 de abril de 2020): http://servicios.infoleg.gob.ar/infolegInternet/anexos/310000-314999/310241/norma.htm

[2] Art. 2, LDC: “Constituyen prácticas absolutamente restrictivas de la competencia y se presume que producen perjuicio al interés económico general, los acuerdos entre dos o más competidores, consistentes en contratos, convenios o arreglos cuyo objeto o efecto fuere: a) Concertar en forma directa o indirecta el precio de venta o compra de bienes o servicios al que se ofrecen o demanden en el mercado; b) Establecer obligaciones de (i) producir, procesar, distribuir, comprar o comercializar sólo una cantidad restringida o limitada de bienes, y/o (ii) prestar un número, volumen o frecuencia restringido o limitado de servicios; c) Repartir, dividir, distribuir, asignar o imponer en forma horizontal zonas, porciones o segmentos de mercados, clientes o fuentes de aprovisionamiento; d) Establecer, concertar o coordinar posturas o la abstención en licitaciones, concursos o subastas. Estos acuerdos serán nulos de pleno derecho y, en consecuencia, no producirán efecto jurídico alguno.”

[3] La reglamentación del art. 29, mediante el Decreto 480/2018, dista de ser abarcativa y clara; por lo que se requiere una nueva reglamentación, que respete cabalmente el espíritu de la LDC.

[4] https://www.boletinoficial.gob.ar/detalleAviso/primera/227413/20200403

[5] https://www.argentina.gob.ar/defensadelacompetencia/presentaciones-urgentes-covid (último acceso, 3 de abril 2020).

[6] Por ejemplo (en todos los casos, último acceso, 3 de abril 2020): (i) EE.UU.: Declaración Conjunta del FTC y el DOJ: https://www.ftc.gov/news-events/press-releases/2020/03/ftc-doj-announce-expedited-antitrust-procedure; (ii) Europa: Declaración de la European Competition Network, https://ec.europa.eu/competition/ecn/202003_joint-statement_ecn_corona-crisis.pdf; (iii) Reino Unido: CMA – Task Force para el COVID-19, https://www.gov.uk/government/publications/covid-19-cma-taskforce/cma-covid-19-taskforce; (iv) Australia: ACCC Autoriza Ventas Coordinadas entre Mayoristas en Mercado de Medicamentos, https://www.accc.gov.au/media-release/medicine-wholesalers-to-co-operate-on-access-to-pharmaceutical-products; (v) Noruega: Konkurranse Tilsynet – Autoridad de Competencia de Noruega, Otorga Excepción Temporal a Sector de Transporte, https://konkurransetilsynet.no/transportation-sector-is-granted-temporary-exception-from-the-competition-act/?lang=en; (vi) Sudáfrica: Comisión de Competencia – Inusual, por COVID-19, recibe más de 500 Denuncias por Precios Excesivos, http://www.compcom.co.za/wp-content/uploads/2020/03/CCSA-COVID-19-statement-31-March-2020-Final-1.pdf; (vii) Chile: FNE – Declaración Pública, https://www.fne.gob.cl/declaracion-publica/, entre otros.

[7] Por ejemplo, consideraciones respecto a si ello se refiere más al bienestar de los consumidores, de los productores, de ambos, o a otras finalidades.