LEY 25156 PDF
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This Act was replaced by Act No. The enforcement of Act No. One of the key provisions of the Competition Act is the merger and acquisitions control procedure. The Antitrust Act was complemented by Decree No. The law and the named decree were complemented by regulations regarding the procedures established in them.
A proposed amendment to the antitrust law was submitted to Congress and approved by the Argentina House of Representatives on 22 November The bill has already passed to the Senate, where is expected to be approved in the next few months. Once the bill is approved, the Argentine Executive power will need to regulate the new law in the next 60 business days; see Section IV for further details regarding the amendment.
Currently, ely authority that enforces the Competition Act and its complementary regulations is the Secretariat of Trade the Secretariatled by Mr Miguel Braun, which formally depends on the Ministry of Production, led by Mr Francisco Cabrera, and is assisted in this matter by the CNDC 4 principally formed of economists and lawyers.
The agencies responsible for enforcing prohibitions on anticompetitive conduct are the CNDC and the Secretariat collectively, the antitrust authorities. The CNDC is still the agency that investigates both anticompetitive conduct and merger and acquisition procedures as a formal requirement of the Secretariat, which has full power to investigate and decide on the existence of anticompetitive conduct either at the request of a party or ex officio.
The investigation of anticompetitive conduct lfy the analysis lsy mergers and acquisitions by the CNDC results in a non-binding recommendation to the Secretariat, which will make the final decision on the case, subject to analysis this applies to both merger and acquisition reviews and investigation procedures. The decisions of the Secretariat may be appealed by parties to the judicial courts. Section 1 of the Competition Act establishes that acts or behaviours related to the production or trade of goods and services that limit, restrict or distort competition or constitute abuse of a dominant position in a market in key way that may result in potential or actual damage to the general economic interest, 6 are prohibited and shall be sanctioned pursuant to the rules of the law.
Further, Section 2 of the Competition Act provides a detailed list of anticompetitive conduct that could be considered unlawful by the competition authorities. In Argentina, all cases are analysed by the rule of reason criteria on a case-by-case basis. In particular, Section 2, subsections c to h of the Competition Act provide for different types of anticompetitive conduct that can be interpreted by the antitrust authorities as a cartel case.
To be considered a cartel case, the conduct must also 2516 with the description that is given in Section 1 of the Act.
Argentina – The Cartels and Leniency Review – Edition 6 – The Law Reviews
The types of anticompetitive conduct are:. Arenera Argentina and others in In the history of Argentine antitrust cartel investigations there are two huge cases regarding the following markets: Both cases were appealed to judicial courts and to the Supreme Court of Justice, and the sanctions imposed by the competition authority were confirmed by both.
Cartels are considered by the Argentine antitrust authorities as well as by antitrust authorities worldwide as serious infringements of the Competition Act because, as previously stated, they constitute one of the practices that are the most severely punished by the antitrust authorities.
It is important to state that there is no definition of a cartel or its equivalent in the Competition Act. Nonetheless, the CNDC has stated, in one of its last precedents, 8 that the following are the principal characteristics of collusive practices: Further, the CNDC has concluded — after several cartel investigations — that there are some factors that facilitate collusion, namely buyer power, product homogeneity, symmetry, oligopolistic markets and multimarket contacts. As regards enforcement of the Competition Act, a cartel must be proven to have an effect on the Argentine market.
Specifically, Section 3 of the Competition Act establishes that:. For the purpose of this law, in order to determine the real nature of the acts, conducts or agreements, the authorities will take into account situations and economic relations that are actually carried out, pursued or established.
Further, it is important to highlight that the Competition Act has adopted the effects doctrine, which implies, in practice, that any act or conduct performed, or any agreement signed abroad, that has an effect in Argentine territory could be challenged by the antitrust authorities. Pursuant to Section 18, subsection g of the Competition Act, the antitrust authorities have, by law, the following functions and faculties: The Antitrust Act does not contain any statement of cooperation with other jurisdictions regarding international cooperation in cartel cases.
This notwithstanding, informal international cooperation could be expected on cross-border cartel cases. Currently, Argentina has signed three documents concerning cooperation with worldwide authorities in antitrust matters:. Further, in Novemberthe Organisation for Economic Co-operation and Development reincorporated Argentina as an observer in its Competition Committee, which is in charge of monitoring the worldwide fight against, inter aliacartel cases and transparency.
It is worth mentioning that one of the objectives of the current president of the CNDC is to state international policies as regards antitrust matters so as to promote transparency and efficiency in the Argentine market.
Further, in the past few years, the staff at the Antitrust Commission have received exhaustive training from experts from other agencies.
As mentioned in Section I, the Competition Act establishes in Section 1 that acts or behaviours related to the production or trade of goods and services that limit, restrict or distort competition or constitute an abuse of a dominant position in a market in a way that may result in a potential or actual damage to the general economic interest, 9 are prohibited and shall be sanctioned pursuant to the rules of the law.
Further, Section 2 of the Act provides a list of anticompetitive conducts that could be considered unlawful by the Argentine antitrust authorities. All cases will be analysed by the rule of reason criteria. Additionally, it is important to highlight that the Competition Act has adopted the effects doctrine, which implies that any act performed or agreement signed abroad that has an effect in Argentine territory can be challenged by the Argentine antitrust authorities.
With regard to collusive practices, there does not need to be a formal and express agreement in place for the Competition Act to be applicable, only an informal understanding between the parties involved in a cartel case is necessary.
The antitrust authorities will consider cartel cases using the economic reality principle, by which they will take into consideration the true nature of the conduct regardless of its manifestation. There are no exceptions expressly included in the Competition Act regarding cartel cases. It should be noted, however, that pursuant to Section 1 of the Act, the law does not forbid conduct that involves parties that do not have sufficient market power to damage potentially or actually the general economic interest.
The current 2515 Act does not, at present, provide for leniency programmes. However, a proposed amendment to the antitrust law was submitted to Congress and approved by the Argentina House of Representatives on 22 November As has already been stated, the bill has already passed to the Senate, where it is expected to let approved in the next few months.
The proposed amendment, among other things, suggests the establishment and application of leniency programmes in Argentina. The current authorities support the application and enforcement of leniency programmes, and emphasise that this kind of programme helps to encourage efficiency 225156 transparency among markets and competition. The leniency programme proposed in the bill will grant: Further, all types of conducts will be eligible for leniency but they must be collusive.
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Enterprise and natural persons will be allowed to apply for the leniency programme employees can apply jointly with the enterprise they represent. Notwithstanding the above, the leader of the collusive conduct cannot apply for leniency. Penalties for anticompetitive conduct are detailed in Section 46 of the Competition Act, and can be imposed by the Secretariat.
Infringements of the Competition Act regarding a cartel case may result in harsh consequences both for the infringing company or companies and any employees that took part in the conduct. Under current Argentine legislation, fines for infringing the Competition Act range from 10, to million Argentine pesos.
To determine the amount of the fine, the criteria used by the authorities take into account the following:. The logic behind the pecuniary fine is that the imposition and the amount of the fine act as disincentives for those considering engaging in anticompetitive conduct. In the case of a relapse into the unlawful activity, the fine could be doubled.
Without prejudice to other penalties that may relate to the activity, when verified acts that constitute a cartel case, or where it is noted that a monopolistic or oligopolistic position in violation of the provisions of the Competition Act has been acquired lley consolidated, the authority, currently the Secretariat, may enforce conditions that have the aim of neutralising the distortional effects that the activity has had on competition, or appeal to a judge to have the offending companies dissolved, liquidated, decentralised or divided.
Further, the companies are liable for the acts of their employees even those who are not in a managerial position performed on their behalf, for their benefit or with their assistance. As a consequence of the aforementioned, directors, managers, administrators, receivers or members of the surveillance commission who contribute, encourage or permit an infringement are jointly and severally liable regarding the imposition of the fine.
Lfy addition to all the sanctions described above, the individuals or legal entities who are injured by the acts and behaviours forbidden by the Competition Act may sue for damages in a court of competent jurisdiction in accordance with the laws of Argentina. Finally, any agreements or terms and conditions that infringe the Competition Act might be declared null and void.
The antitrust authorities have very broad investigative powers to enforce the prohibition and investigation of cartel cases. In practice, the antitrust authorities request, in the first instance, either the parties involved or third parties that may have knowledge or information regarding the collusion to provide documents or information they deem necessary to pursue the investigation. Usually they request general information regarding the market and the product involved in the investigation, ely of the players involved, competitors, barriers to entry in the market, capacity, distribution channels, among other things.
The antitrust authorities usually, in the second instance, call the parties they believe are involved in the cartel case, or third parties, to le. The hearings are usually held in the antitrust commission offices and officiated by the lawyers and economists who are in charge of the case.
The antitrust authorities may also request a judicial order to inspect the companies that they believe are involved in the cartel case with the aim of obtaining evidence. As part of an inspection, the authorities may review le, diaries and documentation that they understand could have information or constitute evidence regarding the cartel case.
Ley 25156, de Defensa de la Competencia.
In addition, the antitrust authorities usually review all communications made by associated competitors. Recently, two relevant cases, which involved claims for damages and were previously sanctioned by the CNDC, were initiated as a consequence of anticompetitive conduct. One was a cartel case and the other focused on an abuse of dominant position. In the second case, Auto Gas SA v.
The forthcoming amendment bill includes new provisions regarding private enforcement; the changes are focused on establishing a more efficient and faster procedure. The parties in key case should file the claim once the administrative decision imposing a sanction is final.
That decision will be binding on the civil judge and the case will be heard under expedient procedural rules and special treatments for parties that benefited from leniency will apply. Mr Greco, as a first step, carried out internal audits. He has also released the results of internal audits regarding 225156 conduct including but not limited to cartel cases.
Mr Greco acknowledged that the antitrust authorities, in past years, have failed to comply with the terms established in the Competition Act as regards conduct cases. He stated that conduct cases initiated with an aim other than the protection of market competition will be dismissed and closed. As has already been stated, a proposed amendment to the antitrust law was submitted to Congress and approved by the House of Representatives on 22 November The bill 251556 passed to the Senate, where is expected to be approved in the next few months.
Once approved by the Senate, 52156 Act has to be regulated within the next 60 business days. Leey new Competition Ely will replace the current one and will introduce significant changes, some of which have already been referred to.
The new Competition Act will also create a new, independent national competition authority.
As regards anticompetitive practices the new Lwy Act will:. Under the new Competition Act, fines will be increased. They will no longer be determined in Argentine pesos but will be determined by the following factors: Further and in cases where the fine could not be determined by using the aforementioned factors, a fine of up to million indexable units which are 2515 by the new Competition Act can be imposed. With regard to current developments in anticompetitive cases, in Septemberthe current Antitrust Commission served notice to Prisma Medios de Pago SA Prisma and its 14 shareholder banks of an investigation by means of which it set out three main anticompetitive conducts.
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This case was initiated as a consequence of an investigation held by the Antitrust Commission — in early — that was focused on credit cards and electronic payment methods. The conclusion of this investigation was that there was a lack of competition and transparency in the market. As part of the investigation, Prisma submitted a settlement proposal to the Antitrust Commission in Marchwhich was approved by the Ministry of Production on 7 September The settlement proposal submitted by Prisma consisted of a structural and a behavioural remedy.
The Antitrust Commission stated that this settlement resolves the vertical integration issue between Prisma and the 14 banks, and concerns regarding horizontal integration.
The Antitrust Ldy is expecting that this settlement will result in an increase in competition within the market involved and the introduction of new electronic payments methods.