Decree with the Status, Value, and Force of Antitrust Law
The Decree with the Status, Value, and Force of Antitrust Law, issued by the Presidency of the Republic, was published in Official Gazette Extraordinary No. 6,151 of November 18, 2014 (the “Decree-Law”). The purpose of said Decree-Law is to promote, protect and regulate the exercise of fair economic competition, in order to prohibit and penalize monopolistic and oligopolistic practices, abuse of dominant position, concerted demand, economic concentrations, and any anticompetitive or fraudulent economic practice. Afterwards, due to faults in the originals, the Decree-Law was published again in Official Gazette No. 40,549 of November 26, 2014.
The Decree-Law is applicable to national or foreign natural or legal persons, of public or private nature, for profit or not for profit, that perform economic activities in the national territory or group those performing such activities, excluding from the application of the Decree-Law the community-based organizations of the popular power governed by the Organic Law of the Economic Communal System, the public or mixed companies with a strategic character, and the State-owned companies that provide public services.
The Decree-Law establishes general prohibitions against the conduct, practices, covenants, agreements, contracts, or decisions that prevent, restrict, falsify or limit economic competition. Also, the Decree-Law specifically prohibits (i) the acts or conduct that seek to prevent or obstruct the entry or permanency of companies, products, or services; (ii) the exercise of actions that restrict economic competition and urge not to accept the delivery of goods or the provision of services, impede their acquisition or provision; (iii) the conduct that manipulates the factors of production, distribution, commercialization, technological development, or investments; (iv) the agreements that restrict or prevent economic competition among its members, as well as the collective agreements and concerted practices for directly or indirectly fixing the prices and commercialization or service conditions; limiting the production, distribution, commercialization, and technological development; restricting investments for innovation, research and development; distributing the markets among competitors; applying, in commercial relationships, unequal conditions to equivalent goods/services and subjecting the execution of agreements to, or conditioning such execution on, the acceptance of supplementary good/services not related to the subject matter of the agreement; (v) the economic concentrations; (vi) the contracts that establish prices and contracting conditions that may have the effect of preventing, restricting, falsifying or limiting economic competition; (vii) the abuse of dominant position, and (viii) unfair competition and practices.
Likewise, the Decree-Law creates the Antitrust Superintendence, which has the same powers as those granted to the Superintendent for Promotion and Protection of Free Competition by the Law for Promotion and Protection of Free Competition, published in Official Gazette No. 34,880 of January 13, 1992.
The Decree-Law prescribes a statute of limitations of 3 years for infractions applicable to unfair competition, and a statute of limitations of 5 years for the rest of the infractions provided in the Decree-Law.
The Decree-Law establishes that the persons/entities that are liable for the prohibited practices or conduct may be penalized with a fine of up to 10% of the value of the annual gross income of the infringer. The fine may be increased up to 20% if aggravating circumstances are present. In the event of repetition of the infringement, the fine will be increased by 44%. The annual gross income to be calculated will be that of the economic year preceding the resolution imposing the fine.
Also, the Decree-Law provides that the administrative acts issued by the Antitrust Superintendence are to be obligatorily complied with by the persons/entities subject to its authority and no precautionary or suspensory measures against them may be requested from or approved by the administrative authorities. In addition, the Decree-Law establishes that the Antitrust Superintendence may impose additional fines ranging between 1% and 20% of the value of the equity/patrimony of the infringer on the persons who fail to comply with the orders contained in the resolutions issued by said Superintendence. These fines may be successively increased by 50% of the original amount if they are not paid by the infringer within the period of time prescribed.
The Decree-Law repeals the Law for Promotion and Protection of Free Competition, published in Official Gazette No. 34,880 of January 13, 1992.
The Decree-Law became effective as from its publication in the Official Gazette.
In order to Access the Decree-Law, please click here.