On July 30, 2007, Act N° 18.159 (hereinafter the "Antitrust Act" or "Act") which establishes the applicable regulation on Antitrust Law was published in the Official Gazzette.
In this article we will analyze the provisions therein contained as well as the practical consequences the application of this Act may have.
- Current Regime
- Public Policy Status
- General Principle
- Scope of Application
- Forbidden practices
- The Act expressly includes the prohibition of conducts which have the "purpose of restricting, limiting…". This means that all conducts performed with the aim of causing a restriction of competition are forbidden. In the understanding that what is taken into account is the intention with which the conduct is performed, a certain conduct would be forbidden even if it is not adequate to achieve the desired anti-competitive result provided that it has been performed with the intention of causing such negative result.
- The requirement that the distortion of the market causes a relevant damage to the general interest as a condition for conducts to be forbidden is now eliminated. With this elimination, any forbidden act or conduct which affects the relevant market will be punishable, without it being necessary that a special damage is caused or could be caused.
- Abuse of Dominant Position
- Criteria for the analysis of forbidden conducts
- Examples of Forbidden Practices
- Relevant Market
- Acts of Economic Concentration – Notification
- When as a consequence of the operation participation equal or above to 50% of the relevant market is obtained.
- When the gross annual invoicing in Uruguayan territory of the participants in the operation is equal or above to approximately USD 55.000.000, in any of the last three financial years.
- The acquisition of companies in which the buyer already had at least 50% of its shares.
- The acquisition of bonds, debentures, obligations, any other title of debt of the company, or shares with no voting rights.
- The acquisition of only one company by only one foreign company which previously did not possess assets or shares of other companies in the country.
- Acquisitions of companies, which have or have not declared bankruptcy, which have not registered any activity within the country in the last year.
- Authorization of Monopolist Concentration
- Procedures for investigation
- Statute of Limitations
- Extension of Responsibility
Until the approval of this Act, in Uruguay there were two acts which contained certain specific regulations regarding Antitrust Law. These acts established the principle that all companies are subject to competition rules, and stated the forbidden conducts, enumerating, without limitation, specific hypotheses. Also they established the powers of the authority in charge of controlling forbidden acts and conducts, as well as the applicable sanctions.
These provisions have been revoked by the new Act and are therefore no longer in force.
As the Act establishes in its Section 1, its purpose is to promote the well-being of consumers and users "by means of the promotion and defense of competition, the stimulation of economic efficiency and freedom and equal access conditions of companies and products to markets".
The reference to "consumers and users" as the Act’s final beneficiaries, although it would seem to be a mere declaration, could have important effects since it could serve as basis to argue that certain practices and conducts could not be considered to be anti-competitive if they finally benefit such class.
It must be specially taken into account that the Act’s purpose is to regulate the development of competition itself, and not particular situations of conflict between economic agents. And this, in the understanding that an adequate development of competition improves the efficiency of economic agents which consequently causes better conditions for consumers.
Therefore, two of the Act’s main concerns are: i) that competition effectively takes place, and, ii) that it occurs in an adequate manner, since only when this happens is that economic efficiency improves and that consumers have better conditions.
Antitrust law is usually confused with other subjects such as the good or bad faith evidenced by certain economic agents as they attempt to conquer positions in the market.
These attitudes, even if they are relevant from a legal perspective and could be "disloyal competition", and even authorize judicial claims, they are not in principle part of what is denominated Antitrust Law for the purpose of this Act. They would only be of importance for Antitrust Law if the effects of such attitudes were of such an entity that they could cause a restriction or distortion of the market. If they do not have such effects, it does not matter how disloyal such conducts could be, they will be irrelevant from the perspective of Antitrust Law.
The Act expressly establishes its public policy status (Section 1), which implies that agreements between private parties which attempt to disregard the Act’s provisions will not be valid.
The Act establishes in its Section 2, as was established in the previous regulation on the subject, the general principle that "all markets are subject to the principles and rules of free competition" with the exception of the "limitations established by law due to reasons of general interest".
By "limitations established by law due to reasons of general interest" it must be understood those activities to which individuals cannot have access in principle, such as, legally established monopolies and activities which the law qualifies as "public services" (for example, public transportation, drinkable water supply, etc). Such activities either are forbidden to individuals or require an act of concession of the State to enable individuals to perform them.
As in the previous regulation, the Act has a wide scope of application. The general principle of free competition applies to "all individuals and legal entities, public or private, national or foreign, which perform economic activities, lucrative or not, in Uruguayan territory".
Also, the new regulation applies in identical terms to those who "perform economic activities abroad, if such activities have effects totally or partially in the Uruguayan territory".
This inclusion is an innovation which has the inconvenience of intending an application of its provisions outside Uruguayan boundaries, which could cause problems in several cases.
As a consequence of the general principle referred to in point iii), the Act forbids certain practices which could affect competition.
In this sense, the second paragraph of Section 2 considers to be forbidden practices "the abuse of a dominant position, as well as all practices, conducts or recommendations, either individual or co-ordinated, which have as effect or purpose to restrict, limit, hinder, distort or obstruct the current or future competition in the relevant market".
With the exception of some changes in the wording, in principle, the solution previously adopted is maintained by the Act.
Two important differences which may be found with respect to the previous system are as follows:
In Section 6, the Act expressly defines what is understood as "abuse of dominant position" for the purpose of Section 2 dividing the concept into two parts.
In this sense, on one hand it establishes that "one or various agents have a dominant position in the market when they can substantially affect its relevant variables independently of the conduct of its competitors, buyers or suppliers".
On the other hand, the Act defines when there is abuse of such position by establishing that there is abuse when the agent/s which are in a dominant position act "in a wrongful manner with the purpose of obtaining advantages or causing damages to others, which they could not have obtained or caused if they did not have a dominant position".
The Act provides three guidelines for the authority in charge of enforcing the Act (which will be the Commission of Promotion and Defence of Competition within the Ministry of Economy and Finance, hereinafter the "Commission") to follow when evaluating these conducts.
These guidelines are explained by the fact that in some occasions it is not logical to demand a strict application of the rules of competition since they could cause an economic inefficiency that could end up harming consumers’ interests. For example, that could occur in the case of distribution of a consumer product. In places with many consumers, each company could have its own distributor; however, in small locations due to reasons of costs it usually occurs that a sole distributor offers similar products.
The guidelines which should be taken into consideration by the Commission are: i) if with such practices an increase in economic efficiency is obtained or not; ii) if they can be substituted by others, and iii) if the benefit is transferred to consumers.
Furthermore, the Act clarifies that they will not be considered to be anti-competitive conducts neither "the conquest of the market resulting from a natural process based on an economic agent’s greater efficiency with respect to its competitors", nor "the exercise of a right, power or exceptional prerogative granted or recognized by the law".
Continuing the tendency established by previous Act 17.243, section 4 of the Act mentions, only as examples, certain practices which are forbidden provided that one of the situations mentioned in Section 2 and referred to hereinabove occurs.
Some of the practices foreseen in Section 4 are: i) Co-ordinating or imposing directly or indirectly purchase or sale prices or other transaction conditions in an abusive manner, ii) Unjustifiably applying to third parties unequal conditions for equal obligations, thus placing them in situations of great disadvantage before competitors, iii)Unjustifiably preventing market access to potential participants, iv) Co-ordinating the presentation or abstention to public or private bids or price contests, etc.
It is important to bear in mind that these practices are not considered to be anti-competitive per se, but as was above mentioned, they will be considered to be so provided that one of the situations referred to in Section 2 occurs, and, as we will see, if they affect the relevant market.
It must be also noted that, the majority of the practices are conditioned to the fact that they be executed in an abusive manner or unjustifiably. The formula is adequate because a practice which could prove to be anti-competitive in a sector of the economy could however be fully justified in another case due to the particulars of each situation. On the other hand, the lack of precision of what are considered to be forbidden conducts has as consequence a lack of certainty for companies since the range of conclusions is very wide and will depend on the particular case.
The Act correctly introduces into our legal system the concept of "Relevant Market". This concept in Antitrust Law refers to the "scope" of competitive activity which should be considered, for example, when determining if an agent has a relevant position, if its conduct could be considered to be anti-competitive, etc.
In this sense, Section 5 foresees that with the purpose of evaluating if a practice is or is not competitive, the relevant market in which such activity is performed should be determined in the first place. This means that a practice cannot be considered to be anti-competitive in itself but with respect to a certain market.
Thus, it could not be said that the "beverages market" has been affected without further specification since that would be poor from a technical perspective. It should be noted that soda beverages do not compete with alcoholic beverages; and even, that not all alcoholic beverage compete with each other, etc, it must be defined in each case which products compose each class.
The Act indicates certain factors which should be analyzed when determining the relevant market. This enumeration is not limited to the factors mentioned therein since it clearly states that "among others", said factors are: i) the existence of substitute goods or services, and ii) the geographical area comprised by the market.
The reference to the "existence of substitute goods or services" is related to the concept of "cross elasticity of the demand" which is the high or low disposition consumers may have of consuming one product as a substitute of another one, for example due to small price variations. When such elasticity is high it can be concluded that both products are part of the same relevant market.
With respect to the "geographical area comprised by the market", the Act clarifies that this refers to the "scope of effective competition" of a good or service. In this sense, it is clear that a bakery in the city of Rivera does not compete with one located in Montevideo. However, this is not so clear if instead of dealing with a perishable good we are referring to an electric appliance of high economic value. Also, these circumstances could vary with time.
Therefore, another criterion which should be considered for the determination of the relevant market, which was not expressly taken into account by the Act and which we understand should have been considered, is the passage of time. Markets are being constantly redefined by technological advances, the possibility of exchange and replacement of one product for another, differences in the preference of goods, etc. In this sense, continuing with the example mentioned before, let’s think about the market penetration experienced by packaged bread. Although some time ago it was unthinkable, today bakeries in Montevideo and Rivera experience competition that sometimes comes from hundreds of kilometres away. This way, the relevant market necessarily should have a defined time frame.
One of the Act’s great innovations with respect to the previous regime is the obligation of notifying the Commission acts of economic concentration ten days before such acts are executed by companies, provided that such acts fulfil certain requirements which will be stated hereunder.
The Act foresees in Section 7 that possible acts of economic concentration are "those operations which suppose a variation of the control structure of the participating companies". Such variation could be caused by: i) mergers, ii) acquisition of shares, quotas or participation in companies, iii) acquisition of commercial, industrial or civil concerns, iv) total or partial acquisition of company’s assets, and v) all other kinds of legal transactions which imply the change of control of the whole or part of economic units or companies.
Notwithstanding, not all acts of economic concentration must be notified to the Commission; such obligation only exists when at least one of the following conditions occur:
It is foreseen that the Commission will regulate the content and the way in which the notification will be performed, as well as the corresponding sanctions, and also that it may request periodic information to companies involved so as to do follow ups on the market conditions.
Exceptions – Section 8 establishes certain cases in which there is no obligation of notifying, even when some of the above referred conditions occur. They are the following:
The Act establishes in its Section 9 the requirement of obtaining a previous authorization in those cases in which the operation will imply the formation of a "monopoly in fact" in the market.
This Section states that "in those cases in which the act of economic concentration implies the formation of a monopoly in fact, such process must be authorized by the enforcement authority". This means that in this case, it is not enough to merely notify such act to the Commission but it will be necessary to obtain its authorization to be able to execute said act.
It must be noticed that if the Commission does not pronounce itself regarding the authorization in 90 days counted from the corresponding request the act will be considered to be authorized.
The Act clarifies that in case a monopoly in fact is authorized; this in no way will be understood to be the incorporation of a legal monopoly (Section 85, num. 17 of Uruguayan Constitution). Moreover, it is foreseen that the authorization of a monopoly in fact will not limit the entry of other agents into the market.
According to the Act, when analyzing these situations the Commission must consider, among other factors, the "relevant market, the external competition and the gains in efficiency".
Chapter II of the Act foresees some provisions regarding the procedures for investigation and the sanctions applied to forbidden practices.
In this respect, the following issues should be remarked upon:
Firstly, that the possibility of the Commission requesting information to any person, so as to gather information about acts or facts related to the conformation of markets and the practices carried out in them, is foreseen. The Act also establishes the consequent obligation of collaborating for every person (individual or legal entity, national or foreign, public or private) who will be compelled to provide the Commission with "all information within their knowledge and all documents in their power" within the term of ten days counted as of the day following the day in which the request was made.
In this sense, it must be noted that this is a very delicate matter, and that it would be appropriate to leave out of the obligation of informing those data and information which are comprised by bank or professional secrecy in general, the right of non-disclosure of the company’s know-how, etc. The Act rightly establishes that the obligations of collaborating do not imply the obligation of revealing "commercial secrets, maps, "how to do", inventions, formulas, patents" although it does not include in this exception for example, professional and bank privileged information.
It is important to take into account that the sanctions established for those cases in which forbidden conducts are performed and which will be explained herein below are also applicable in case of non-compliance with the obligation of collaborating with the Commission.
Furthermore, the Commission can request from the Courts the adoption of reserved measures to gather evidence, such as the exhibition and obtaining of copies of civil or commercial documents, company’s books, Company ledger and accounting data bases.
With respect to the procedure, the Act foresees that anyone can report the existence of forbidden practices, by filing a writ before the Commission which must contain certain minimum information (identification of the person filing the report, precise description of the conduct, etc). Of the report filed the reported party will be notified. Moreover, the Commission may initiate an investigation ex-officio.
The Commission may decide the provisional cessation of the conduct if it understands that such conduct may cause serious harm or if it is already causing it. And notwithstanding, the Commission may request the Courts to adopt all precautionary measures it may deem convenient.
On the other hand, the Act enables the Commission to suspend the administrative proceedings in two cases: i) with the purpose of arriving with the alleged offender to the commitment of ceasing the conduct or modifying the conduct under investigation, or ii) with the purpose of considering a possible conciliation between the reported party and the person who reported the conduct when it is a case of abuse of dominant position and the only person suffering the consequences is the one who reported the conduct.
We believe that in this last case the solution is not correct. And this, because Antitrust Law must be focused, in principle, on the market, defending a diffuse interest and not the economic agent’s concrete or individual interests.
The Act (Section 28) provides a statute of limitations of five years for actions which are originated in forbidden practices, to be counted as from the moment in which such conducts have taken place, both regarding the Commission’s powers of investigating and establishing sanctions and the rights of those who suffered damages to obtain compensation for the damages suffered. It is foreseen that the period of statute of limitations will be interrupted by the act which orders the initiation of a procedure by the Commission ex-officio or by the act which orders the notification of a report to the person allegedly responsible.
Chapter II of the Act also establishes the sanctions the Commission must apply when the administrative proceedings end with the confirmation that anti-competitive practices have taken place. Such sanctions can be: a warning, warning and publication of the corresponding resolution in two newspapers, or penalties.
It must be noted that in the case of coordinated practices between competitors, it will be a special attenuating circumstance that the person who reported the conduct was one of the participants of the coordinated practice or the collaboration in the gathering of evidences for the sanctioning of the other offenders.
Section 19, Chapter II establishes an important variation to the previous regime. This section leaves open the possibility of extending the responsibility for anti-competitive practices performed by legal entities to the members of the Board of Directors and legal Representatives as well as to the controlling legal entities and the members of their Board of Directors and legal Representatives.
In the case of the members of the Board of Directors and legal Representatives, its responsibility is conditioned to their having actively contributed in the development of the anti-competitive practice. However, this condition is not foreseen to the extension of the responsibility to the controlling legal entity.
It must be noted that when extending the responsibility to the controlling legal entity the act refers to "legal entities", but when extending it to the Board of Directors and legal Representatives, the Act instead of using the expression "legal entity" refers to "controlling company".
This would be creating a difference since both terms cannot be deemed to be indistinct. For example, Governmental Entities ("Entes Autónomos" and "Sevicios Descentralizados") of the State’s commercial or industrial domain, and also some non-governmental public entities are not "controlling companies" but are "controlling legal entities". This is not a minor issue since many of these entities own 100% of many commercial companies which compete in the market.
Consequently, it must be concluded that the responsibility for forbidden conducts of the controlled legal entity will be extended to the Board of Directors and legal Representatives of its controlling entity only in those cases in which the controlling entity is a private commercial company ("company"), but will not be extended if the controlling entity is a state entity ("legal entity" but not a "company").
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.