competition law

The purpose of this set of laws, as stated in the message sent to Congress at the time of submitting the Bill for consideration, is to avoid abuses and protect the general interest of the population by securing their basic or essential needs.

We will now outline some important elements of the new system.

SUPPLY ACT

Supply Act No. 20680 was originally enacted on July 20, 1974 and, notwithstanding enforcement thereof by the Argentine Executive (including, without limitation, the dispute with Shell, with farm owners and with laboratories – Resolution SC SC 90/2014), its constitutionality was contested by most legal scholars.

The grounds for the rejection of the enforcement of the Supply Act lied in two issues:

(a) The vesting of powers contained in the Supply Act constitutes a delegation of legislative authority upon the Argentine Executive and its instrumentalities. Since the Supply Act ultimately involves the regulation of the right to engage in any lawful business -guaranteed under Article 14 of the Argentine Constitution-, such regulation may only be valid through “laws regulating the exercise of such right”, i.e, such regulation may only occur through formal laws enacted by the Argentine Congress.

Taking into account that the delegation of legislative powers contained therein did not provide for a term for exercise thereof, such delegation was subject to the provisions of provisional Article 8 of the Argentine Constitution, whereby “any delegation of pre-existing legislative powers not providing for a specified term for exercise thereof shall be forfeited upon five years following the effective date of this provision, except for such delegations as expressly ratified by the Argentine Congress under a new law.”

The Argentine Congress ratified on a provisional basis several delegation laws, the last one being Law No. 26519, for a term of one year as from August 24, 2009. Thus, since there was no further legislative ratification, on August 24, 2010, the legislative delegation lapsed, as that contained in the Supply Act.

(b) The Supply Act was also contested under Executive Order No. 2284/91 on Economic Deregulation, as ratified by the Argentine Congress under Law No. 24307.

In this respect, Section 29 thereof provides that “the reinforcement of economic freedom, the deregulation and the creation of a real popular market economy has no sympathy for the existence of certain powers conferred upon the Argentine Executive by the so called Supply Act, which are incompatible with such principles and, in addition, introduce elements of legal insecurity” to suspend Subsection (a) of Section 2 of the Supply Act.

In fact, Executive Order No. 2284/91, as effective under the Argentine Legal Digest, approved by Law No. 26939, provides that the exercise of the powers granted by Law No. 20680 is suspended, which powers may only be reinstated, for the purpose of exercising any and all remedies contained therein, subject to a declaration of supply emergency by the Argentine Congress, whether at general, sectorial or regional level.

Notwithstanding the foregoing, the powers granted under Section 2, Subsection (c), are excluded from the provisions of the preceding paragraph, in which case, the rules on procedures, remedies and statutes of limitations contained in such Law shall remain in full force and effect.

Hence, the Secretariat of Trade relied on the foregoing for the purpose of passing Resolution SC 90/2014, with a reference solely to Subsection (c) of Section 2 of the Supply Act, which mandated to roll back prices to May 7, 2014 and to suspend any increase for a term of 60 days.

The new regulation serves as a first step to solving the existing legal uncertainty and to ratifying full effectiveness of the Supply Act. If enforced, the defenses concerning its illegality or invalidity shall be difficult to sustain because it has been confirmed by the Argentine Congress.

Additionally, it introduces other issues that are outlined hereinbelow:

1. The application of the regulation is extended to all economic activities (including recreational and non-profit activities) and to all economic processes related to goods and services at every stage of the economic activity. On the other hand, the previous wording limited the jurisdiction to “any purchase, sale, exchange and lease of personal property, works and services” satisfying, directly or indirectly, the common or ordinary needs of the population. In turn, economic players considered as small-sized or medium-sized companies are excluded.
2. The powers contained in Sections 2 & 3 of the original bill are reinstated, and thus, the enforcement authority may:

• Establish, for any stage of the economic process, profit margins, reference prices, price ceilings and floors, or any or all of the foregoing;
• Lay down regulations governing marketing, brokerage, distribution and/or production;
• Provide for the continuity in the production, industrialization, marketing, transportation, distribution or provision of services, as well as in the manufacturing of certain products, within such minimum levels as established by the enforcement authority, for the purposes of which, the enforcement authority shall take into account the usual volume of production, manufacturing, sales or provision of service and the productive capacity, financial position of the liable party and economic equation of the process or activity.
• In such case, an evaluation shall be made to ascertain whether the continuity in the production, industrialization, marketing, transportation, distribution or provision of services, as well as in the manufacturing of certain products, is economically feasible; otherwise, the enforcement authority shall impose a reasonable and adequate compensation.
• Request information about the sale prices of the goods or services produced and rendered, as well as about availability thereof for sale;
• Demand the filing of all kinds of books, documents, mail, business records and any other element related to the management of the businesses; conduct technical experts’ examinations.
• Confiscate, if necessary, all of the aforementioned elements, for a maximum term of thirty (30) business days;
• Create the records and provide for the keeping of such special books as established;
• Establish business licenses systems.
• The penalties have a new ceiling of $10 million, which may be doubled in the event of a second offense.
• Companies must first pay the penalty and then file an appeal before the Courts, if they wish to do so;
• Imprisonment is removed as penalty for offenders;
• The business may be closed down for a term of up to 90 days;
• Any infringing goods and products may be confiscated;
• Special disqualification for up to five (5) years for commerce and public offices;
• Suspension for up to five (5) years in the Government’s registries of suppliers;
• Loss of concessions, privileges, and special tax or credit programs.

3. In the event it is estimated that, as a result of the foregoing, a financial loss is sustained, a partial or total review of the actions taken may be requested but doing so shall not excuse specific performance of the obligations so imposed, as long as no decision is made in connection with such petition, which resolution shall be rendered within fifteen (15) business days following such claim.
4. The Governors of the Provinces and/or the Head of Government of the City of Buenos Aires, by themselves or through their designees, may set —within their respective jurisdictions— maximum prices and the relevant supplementary actions referred to above as long as the Argentine Executive does not do so.
5. As regards penalties:

• The penalties have a new ceiling of AR$10 million, which may be doubled in the event of a second offense.
• Companies must first pay the penalty and then file an appeal before the Courts, if they wish to do so;
• Imprisonment is removed as penalty for offenders;
• The business may be closed down for a term of up to 90 days;
• Any infringing goods and products may be confiscated;
• Special disqualification for up to five (5) years to conduct business and hold public offices;
• Suspension for up to five (5) years in the Government’s registries of suppliers;

6. Loss of concessions, privileges, and special tax or credit programs. The application of penalties may be against companies and their officers involved in the commission of the infringing events, to the extent acting with willful misconduct or gross negligence (they all used to be deemed liable in the past, whether or not they had been involved).
7. Section 14 provides that any confiscated goods may be sold, leased or shipped if perishable and/or supply thereof is insufficient, for the purposes of which no prior deposit or expropriation proceedings shall be required.
8. No entity is appointed as enforcement authority; the Argentine Executive shall appoint one.
9. A 3-year statute of limitations is set, the running of which shall be interrupted by the commission of new violations or the filing of administrative or legal actions.
10. When faced by a shortage of goods or services that satisfy basic or essential needs related to the general welfare of the population, the enforcement authority may order, under a duly grounded resolution, their, sale, production, distribution or provision in the entire territory of the Republic of Argentina, irrespective of the owner thereof and, upon failure to fulfill such requirement, the relevant penalties shall be imposed. Such decision may last as long as required for remedying such shortage situation.
11. The possibility to close down the business, as a preventive measure, for up to three (3) days during the inspection procedures is maintained. This decision may be extended to up to thirty (30) days, even though such extension requires prior court approval.
12. The terms to assert defenses before the administrative authorities and to file a direct appeal against the resolutions imposing such penalties are extended, in both cases, from five (5) to ten (10) business days.
13. The jurisdiction of the Criminal Courts of Original Jurisdiction is removed and jurisdiction is granted to the Federal Court of Appeals in Administrative Matters and to the Federal Courts of Appeals of the Argentine provinces, depending upon the location of the administrative authority involved, for reviewing the resolutions imposing penalties.
14. As a requirement to appeal the imposition of a penalty, the amount of the fine must be previously deposited, unless such deposit may cause irreparable harm to the appellant. Thus, the possibility of replacing the amount of the fine with a bond or a security over the goodwill, as provided for under the previous Supply Act, is also removed.
15. The Administrative Proceedings Act No. 19549 shall be subsidiarily applied, instead of the Code of Criminal Proceedings.

CONSUMER PROTECTION:

Significant changes are introduced with respect to the dispute resolution system on consumer protection matters, which will now consist of three stages:

1. Preliminary Settlement Service in Consumer Relations (“COPREC”, for its Spanish acronym)

The first stage of this proposal creates COPREC, which shall be involved in all individual right claims concerning consumer relations (resulting from the Consumer Protection Act) up to a maximum amount of 55 minimum salaries (currently, AR$ 198,000) and shall be the mandatory step prior to bringing a lawsuit before the Federal Courts in Consumer Relations -to be created-. COPREC shall depend upon the Secretariat of Trade, which shall be the enforcement authority and act at national level.

COPREC shall coexist with the consumer protection agencies of the City of Buenos Aires in the Management and Participation Centers.

The procedure shall be free of charge and shall serve to bring the parties closer to reach an agreement.

2. Audit in Consumer Relations

The procedure is commenced once the requirement in 1 above has been met without having reached an agreement or due to the reported company’s failure to appear. The parties may be represented by legal counsel and the consumer may be assisted by such representatives as specifically listed under the Consumer Protection Act.

This Auditor in Consumer Relations must be an attorney, pursuant to the requirements contained in the regulations in force, and shall participate in the dispute concerning the liability for the damages caused to the consumer as a result of the risk or defect of the item and for direct damages (Sections 40 & 40 bis of the Consumer Protection Act) for up to an amount equivalent to 15 minimum salaries (currently, AR$ 54,000).

This system shall depend upon the Argentine Ministry of Economy and Public Finance, which is an independent authority, and the procedure shall be of an administrative nature.

Upon receipt of the consumer’s claim, the parties shall be summoned to a hearing, where the evidence offered shall be produced. The Auditor shall verify, on an ex officio basis, the material truth of the facts in order to subsequently render a resolution within not more than 5 days following the hearing.

If the disputed facts are outside the Auditor’s scope of expertise due to their complexity, more comprehensive proceedings may be undertaken to decide the legal issue, with the possibility of bringing an action before the Federal Courts in Consumer Relations.

The resolution shall be subject to appeal, with representation by legal counsel, before the Federal Court of Appeals in Consumer Relations or before the appropriate Federal Court of Appeals in the Argentine provinces.

3. Federal Courts in Consumer Relations

A new venue is created that will have jurisdiction to hear cases related to consumer relations under the Consumer Protection Act and any other rule governing this type of relations. This venue shall have jurisdiction as long as the claim does not exceed an amount equivalent to 55 times a minimum salary. If such ceiling is exceeded, an action may be filed before the ordinary courts (lower courts in Civil or Commercial matters).

In this respect, eight courts of original jurisdiction and two divisions of a Court of Appeals in Consumer Relations are created, all of them located in Capital Federal.

The procedure may not exceed sixty days and shall observe the following procedural rules: (i) jointly with the complaint and answer to the complaint, all evidence shall be offered (there will be no written interrogatories and only three witness per party shall be admitted); (ii) no motions that must be previously decided, peremptory challenges or counterclaims may be filed; (iii) the terms to answer the complaint, file grounded appeals and answer the appellate brief shall be five days and all other terms shall be three days; (iv) the hearings shall be public and the judge will attempt to settle the case and, if no agreement is reached, all evidence shall be produced and a decision shall be rendered; (v) only such resolutions as granting or dismissing injunctive relief, and final court decisions, shall be appealable (as long as not exceeding five minimum salaries – currently, AR$ 18,000); and (vi) all payments to be made to the consumer shall be made by payment into court under the penalty of invalidity ab initio.

It should be noted that within this stage the judge may grant punitive damages disregarding the limit set for claims, i.e. 55 times the minimum salary.

If the amount of the penalty exceeds the five salaries minimum, the parties may appeal the decision before the Federal Court of Appeals in Consumer Relations.

ANTITRUST

The set of laws contained in Bill No. 1250 includes an amendment to Law No. 25156. The amendments in the field of Antitrust are solely related to behaviors, with business combinations remaining unchanged, except with respect to the courts having jurisdiction over appeals.

The major modifications are as follows:

1. No Independent Court:

The Antitrust Court was intended to be an independent authority on the matter, as provided for under Law No. 25156. In practice, it was never created, which was described by the Supreme Court of Justice of the Republic of Argentina as a legal scandal. During the past few years, the duties of the Antitrust Court were fulfilled by the Argentine Competition Commission (CNDC, for its Spanish acronym) and the Secretariat of Trade, who ruled and decided, respectively, on all antitrust matters. Now, under the new law, the Secretary of Trade is officially replacing the Antitrust Court and undertaking the duties that had been assigned to the latter. CNDC will continue to exist as a technical body dependant upon the Secretariat of Trade.

2. New venue designated for appeals:

Another important modification is the participation of the Federal Court in Consumer Relations in these matters. This new venue will be in charge of solving disputes arising in connection with consumer protection, fair trade and antitrust issues.

3. Solve et repete:

The effect resulting from sustaining appeals is modified. Till now, Section 52 of Law No. 25156 provided that, in the event of a penalty, appeals were granted with staying effects. The new system provides that, in the event of a penalty, the appellant shall deposit the amount of the fine prior to filing the appeal and, upon failure to do so, the appeal will be dismissed, unless doing so may cause irreparable harm to the appellant.

4. New applicable regulations

The new regulations provide that the criminal rules (the Criminal Code and the Code of Criminal Proceedings) shall be replaced by the Administrative Proceedings Act No. 19549, for any cases not provided by law.