The Private Competition Enforcement Review: Argentina
Overview of recent private antitrust litigation activity
On 24 May 2018, the National Congress enacted the new Antitrust Law,2 which introduced significant changes to antitrust enforcement in Argentina.
The Antitrust Law created a new decentralised and autarchic antitrust authority within the Executive Branch: the National Competition Authority. However, the existing double-tier system comprising the Antitrust Commission and the Secretary of Domestic Trade will remain in force until the appointment of the members of the new antitrust authority, which will include three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat.3 At the time of writing, the National Competition Authority has not yet been created.
The current Antitrust Law indicates that the enforcement authority's members will be appointed by the Executive Power after a pre-selection process carried out by a qualified jury composed of the Ministry of Productive Development, the National Treasury Procurer and members of the legislative branch, a representative of the National Academy of Law and a representative of the Argentine Association of Political Economy.
The Antitrust Tribunal will be composed of five members. The roster of the new authority will include at least two economists and two attorneys. The Tribunal will be in charge of imposing the sanctions established in the Antitrust Law, resolving preliminary defences, deciding on the approval of mergers and carrying out market investigations that may be deemed pertinent.
For its part, the Merger Control Secretariat will have as its main objective the receiving and processing of advisory opinions and merger dockets that are filed before the authority. Furthermore, it will have the authority to decide on the approval of mergers that qualify for a fast-track review process, the requirements of which will be determined by the Antitrust Tribunal.
Finally, the Anticompetitive Conduct Secretariat will be created with the main purpose of receiving and processing investigations on anticompetitive conduct, to give the Antitrust Tribunal recommendations regarding the sanctions that would have to be applied. On 30 November 2020, a new bill for the amendment of certain sections of the Antitrust Law was included within the set of bills to be addressed by the Argentine National Congress in its extraordinary sessions, which are taking place at the time of writing. The proposed bill includes several relevant changes to the structure of the National Competition Authority as well as to both the merger control and anticompetitive conduct regimes.
One of the key amendments proposed by the bill is the elimination of the above-mentioned procedure for the appointment of members of the National Competition Authority. The proposal establishes that these members will be appointed by the Executive Power, with the prior recommendation of the Ministry of Productive Development. It also states that the latter will act under the scope of the Secretary of Domestic Trade instead of under the Executive Branch as provided in the current Antitrust Law.
In terms of the merger control system, the most significant change the bill proposes is to expedite the entry into force of the suspensive regime in Argentina. The new bill establishes that the pre-closing system for the notification of economic concentrations will become effective 90 days after its publication in the Official Gazette without any further requirements or conditions.
In relation to the anticompetitive conduct regime, the bill proposes to eliminate the controversial and superfluous Section 29 of the current Antitrust Law, which enables the Antitrust Tribunal to grant authorisation for the execution of agreements that may be considered as restrictive to competition if such agreements were not detrimental to the general economic interest.
Finally, regarding the leniency programme, the bill clarifies that immunity from sanctions provided in the Criminal Code, as well as imprisonment sanctions that may apply to anticompetitive conduct, will be granted as long as the criminal investigation has not been initiated before the date on which the leniency is requested.
General introduction to the legislative framework for private antitrust enforcement
Private competition enforcement in Argentina is based on the general tort law provisions of the Argentine Civil and Commercial Code in combination with the specific competition law provisions set out by the Antitrust Law.
Pursuant to Section 1 of the Antitrust Law, certain acts relating to the production and exchange of goods and services are prohibited if they restrict, falsify or distort competition, or if they constitute an abuse of dominant position, and provided that, in either case, they cause or may cause harm to the general economic interest. Such behaviour or conduct is not unlawful as such, and nor must it cause actual damage: it is sufficient that the conduct is likely to cause harm to the general economic interest. It is important to emphasise that the general economic interest need only be potentially affected for the infringement to exist. Likewise, Section 2 of the Antitrust Law sets out that certain collusive conduct is considered anticompetitive per se and harmful to the general economic interest without further analysis.
Section 3 of the Antitrust Law provides a non-exhaustive list of the practices that, provided they meet the requirements set forth under Article 1, would constitute practices forbidden by the Antitrust Law. The list provided under Section 3 of the Antitrust Law includes the following practices:
- price-fixing or resale price maintenance;
- practices that restrict or control technical development or the production of goods and services;
- practices that establish minimum quantities or the horizontal allocation of zones, markets, customers or sources of supply;
- exclusion or obstruction of one or more competitors from entering a market;
- practices that affect goods and services markets through agreements to limit or control the investigation or development of new technologies, or goods production or the provision of services; or practices that hamper investment into the production of goods or the provision of services;
- conditions that tie the sale of goods to the purchase of other goods or to the use of a service, and conditions that tie the provision of a service to the use of another service or the purchase of goods;
- conditions that tie a purchase or sale to an undertaking not to use, purchase, sell or supply goods or services produced, processed, distributed or commercially exploited by third parties;
- imposition of discriminatory conditions for the purchase or sale of goods or services not based upon existing commercial practices;
- unwarranted refusal to fulfil purchase or sale orders of goods or services submitted in existing market conditions;
- suspension of the provision of a dominant monopolistic service in the market to a provider of public services or services that are of public interest;
- predatory pricing; and
- the simultaneous participation of a person in relevant management positions in two or more companies that are competitors.
Pursuant to Section 62 of the Antitrust Law, any individual or legal entity suffering damage from any conduct or act prohibited under the Antitrust Law has the right to file a private action for damages in accordance with the civil law provisions.
Damages can be requested pursuant to the provisions set forth in Article 1716 of the Civil and Commercial Code, which states that a violation of the duty of not causing damage to another person gives rise to compensation for such damage. The basic rule derived from the provision is that whoever causes damage intentionally or due to negligence is liable to the damaged party. Those actions are ruled by the Civil and Commercial Code and must be filed before the competent courts within the jurisdiction of the defendant's domicile.
In relation to the applicable statute of limitations, the Antitrust Law put an end to the historic debate regarding which legislation applies. It sets out that the prescription term of five years applies, commencing from the generation of the harm itself. For cases of ongoing conduct, the term is deemed to commence as of the moment the anticompetitive conduct under analysis concludes.
The Antitrust Law sets out the applicable statute of limitations for damages as follows: a three-year term that commences on the date the conduct takes place or finishes, or when the victim becomes aware or could reasonably have become aware of said conduct; or a two-year term from the issuance of the antitrust authority's condemnatory resolution.
In addition, the Antitrust Law determines that the action's limitation period will be interrupted by:
- the filing of the claim;
- the performance of another action sanctioned by the Antitrust Law;
- the submission of a request for the application of the leniency programme or a reduction of the fine;
- the transfer of the claim regarding the performance of anticompetitive conduct; or
- indictment for anticompetitive conduct.
Furthermore, the action's limitation period will be suspended once the antitrust authority initiates the investigation or the procedure to determine the existence of an anticompetitive conduct, and will remain so until a final decision of the antitrust authority is confirmed by the courts.
One of the most important changes introduced by the Antitrust Law was the chapter devoted to damages.
Section 63 of the Antitrust Law sets out that once a resolution is issued by the antitrust authority, follow-on damages litigation will be carried out by means of an executive summary proceeding (namely, the most rapid of all proceedings in Argentine procedural law) and that the court will base its decision on the antitrust authority's decision. In addition to damages, Section 64 sets out that a civil fine in favour of the injured party may also be granted, depending on the gravity and circumstances of the case. Where more than one person or company has carried out the action, they will all be jointly liable for the payment of the damages or fines, as per Section 65.
Furthermore, a specific provision (Section 65) regulates the scenario posed with regard to leniency applicants, in the sense that they 'may be exempted or their liability reduced' as regards damages and fines as set out in that very specific chapter. The very same section sets out an exemption to said rule for the following cases: as regards its direct or indirect buyers or suppliers; and any other injured parties only when the full reparation of the damages of the conduct could not be obtained from the other companies involved in the same anticompetitive conduct.
Likewise, the Antitrust Commission issued Guidelines for the Analysis of Cases of Exclusionary Abuse of Dominance in 2019. These relate only to unilateral exclusionary abuses of dominance, as they are the most frequent ones, with the aim of providing guidelines for what may be considered as infringement of the Antitrust Law and to help decisions become more predictable.
In 2019, the Antitrust Commission also initiated a series of high-profile investigations involving different companies. Among these is the Notebook case, a scandal that was unveiled during 2018 and entailed an organised corruption scheme that included the delivery of bribes to several people, including politicians and many businessmen who were granted large public contracts.
An investigation was initiated against 52 construction companies and two chambers – the Argentine Construction Chamber and the Contracting Firms' Argentine Chamber – for allegedly committing anticompetitive conduct by entering into and coordinating public bids related to public works between 2005 and 2015. At the time of writing, there were no major developments in this investigation, mainly due to covid-19.
After the health emergency was declared following the coronavirus outbreak in Argentina, the Executive Power mandated the maximum prices for over 2,300 food and personal health products. In several markets in which prices were increased beyond these established maximum prices (such as the medical liquid oxygen,4 beef5 and pharmaceuticals markets6), the Secretary of Domestic Trade ordered the Antitrust Commission to initiate market investigations into whether the increases were the result of illegal practices and possible infractions of the Antitrust Law. The Antitrust Commission has not yet issued any public decisions in this regard.
Pursuant to Section 4 of the Antitrust Law, all of its provisions are applicable to all individuals and entities that carry out business activities within Argentina, and those that carry out business activities abroad to the extent that their acts, activities or agreements may affect the Argentine market (known as the effects theory). Therefore, if a company carries out business activities abroad and such activities have effects in the Argentine market, the Antitrust Law may be applied.
While there are no specific precedents regarding extraterritorial private antitrust litigation, analysis of the effects in merger control cases could be used as a guideline.
In that regard, the Antitrust Commission has established a special test to measure the effects that the parties to a foreign-to-foreign transaction have in Argentina. This test may be applied only if the parties involved in the foreign-to-foreign transaction have sales or imports into Argentina. According to this test, the effects in the local market of a foreign-to-foreign transaction must be substantial, normal and regular, but there is no precise rule to determine such matter. The Antitrust Commission has decided several cases7 based on the market participation of the products imported by the parties of a foreign-to-foreign transaction, and the regularity of the imports over a certain period of time (the immediately preceding three years). The effects have been considered substantial if the exports into Argentina represent a significant percentage of the total relevant market in Argentina of that specific product. The effects are regular and normal if the imports have been constant during the preceding three years. However, the matter must be analysed on a case-by-case basis.
Applied to anticompetitive practices, those acts carried out abroad, but with substantial, normal and regular effects in Argentina, could be investigated and punished by the Antitrust Law.
According to Argentine civil legislation, any person who has suffered damage arising from anticompetitive practices prohibited by the Antitrust Law is entitled to file a suit for damages before the competent court.
To be entitled to file a suit for damages arising from anticompetitive practices, the prior intervention of the Antitrust Commission is not necessary; the Antitrust Commission is not part of the proceedings generated by the private action unless expressly requested by the court. If, however, the Antitrust Commission has investigated the anticompetitive practice and issued an opinion, courts have relied on the findings of the regulator, and have only focused on the link between the already proven conduct and the claim for damages rather than retracing the investigation.
Pursuant to Section 43 of the Argentine Constitution, class actions may be submitted by the affected person, the ombudsman and associations authorised by law.
The process of discovery
In the current civil Argentine procedure, there is no preliminary stage. Thus, a claimant cannot request from a counterparty information related to facts that are essential to develop the purpose and characteristics of his or her claim, or to develop his or her strategy and defence. It is in the court's sole discretion to admit or reject the production of any evidence, including documents of any nature.
Sections 325 and 326 of the Argentine Civil and Commercial Procedural Code provide that, in certain cases, those who are or will be part of a discovery process, and who have reasonable grounds to believe that the production of their evidence during the evidence period may be impossible or very difficult, may request the production of the following evidence:
- witness testimonies of an old or sick person, or a person who is going to be absent from the country;
- an expert report to register the existence of documents, and the state, quality or condition of goods or places;
- reports from public entities or private individuals or companies; or
- the exhibition, protection or seizure of documentation related to the purpose of the trial.
Without reasonable justification for not doing so, evidence must be produced before the judge during a trial. Parties must produce all relevant documentary evidence upon submitting their claim or their answer, and a list of specific documents that they want to have the court order produced from the opposing party or from a third party. They must also indicate all other means of evidence they intend to rely upon.
The evidentiary stage has two well-defined phases. The first phase consists of a hearing of the parties before the judge, where the latter invites the parties to conciliate. If parties cannot settle the matters in dispute, the judge must define the questions of fact that are relevant to the adjudication of the parties' claims and on which evidence will be produced. The judge must then receive the objections of the parties to the evidence that the other party intends to rely on. The second phase consists of the production of the relevant evidence.
The Argentine Civil and Commercial Procedural Code identifies and regulates in detail the types of admissible evidence, which includes the following: documents, reports, interviews with the parties, testimonies of witnesses, experts' reports and judicial inspection. The Argentine Civil and Commercial Procedural Code also provides rules to deal with evidence appearing after the evidence period has expired.
The procedure for the discovery of documents is unfamiliar to the Argentine legal system. Parties are under no obligation to produce documents other than those upon which they wish to rely. However, a party may request from its opponent (or a third party) the submission of one or more specifically identified documents that are relevant to the resolution of the dispute.
The burden of evidence lies on the party that asserts the existence of a controverted fact that that party raises as the basis for its claim or defence. However, Section 1735 of the Argentine Civil and Commercial Code states that the court may modify this principle to impose the burden on the party in the best position to produce such evidence.
As noted above, the Antitrust Law introduced a leniency programme for the first time and provides an important disposition for leniency applicants. It sets out that the identity of applicants will remain confidential, as well as their depositions or any other information provided in the course of an ongoing investigation conducted by the antitrust authority. This confidentiality is of great importance, especially given that judges who intervene in any follow-on litigation regarding an antitrust offence will not be able to unveil the identity of the applicants or require the evidence provided by them during the course of the administrative investigation.
Use of experts
Experts' reports are among the types of admissible evidence regulated by the Argentine Civil and Commercial Procedural Code.
Parties may request that the court appoint an expert. Additionally, courts may appoint experts even when the parties have not requested the assistance of an expert. Experts must provide their opinion on the questions put to them by the courts. In practice, each party prepares a list of the questions they want the expert to answer, then the court reviews these questions and puts them to the expert. The judge may, however, decide to change the questions, eliminate some or all of them, or add further questions. Once the expert has produced his or her report, the parties are given the opportunity to question all or parts of the report. Parties may also be assisted by party-appointed experts.
Pursuant to Section 43 of the Argentine Constitution, the affected person, ombudsman and associations authorised by law are entitled to file a class action.
Considering the lack of a law regulating this kind of action, the Argentine Supreme Court, in a leading case in this matter,8 held that there are three categories of rights: individual rights, rights with a collective impact that concern collective assets, and rights with a collective impact that concern individual but homogeneous assets.
This third category – rights with a collective impact that concern individual but homogeneous assets – is constituted by personal or property damage resulting from conduct that damages the environment or competition, or the rights of users and consumers and those of discriminated persons, consisting of a single or continuous act that causes harm to all the members of the group.
The Argentine Supreme Court further identified the requirements that must be met to bring a collective action: the existence of a common factual cause that causes injury to a significant number of individual rights; the claim must be focused on the collective effects of such cause and not on what each individual might seek; and a demonstration that individual actions are not justified, which could affect access to justice.
However, even in the presence of typically individual rights, class actions will also be available when there is a strong state interest in their protection, whether this is because of their social relevance or because of the special features of the affected parties.
One of the most renowned cases regarding cartels in Argentina has been the Cement case,9 in which six major cement-producing companies were accused of agreeing to allocate markets nationwide for almost 20 years. The Antitrust Commission's investigation began in 1999, when a disgruntled employee supposedly revealed to a newspaper that the cement companies were exchanging information and agreeing to divide the market.10 While the source of the article was never revealed, it was used as a starting point for the Antitrust Commission's investigation. According to the findings of the Antitrust Commission, the alleged exchange of confidential detailed market information was performed via the Association of Portland Cement Manufacturers (APCM). After a raid on the APCM premises, the Antitrust Commission found records of real-time software that was used to exchange current commercial records of the cement companies.11
This finding, as well as evidence of meetings in hotels between representatives of four of the companies, led the Antitrust Commission to discover the existence of a cartel that exchanged confidential and sensitive information about the cement market and that fixed prices in some areas.12 The fine imposed on 25 July 2005 by the Antitrust Commission and the Secretary of Trade totalled 309,729,289 Argentine pesos and was confirmed by the Argentine Supreme Court in August 2013.
Based on this anticompetitive conduct, the Consumer Protection Association of Mercosur, a consumer association, filed a class action against the cement companies for the damage caused by the cartel. The Association claimed to represent a global class that primarily involved all the consumers, another class that involved all indirect consumers, and finally a sub-class of indirect consumers that involved all persons that had acquired new or recently built buildings, or that had requested a third party (e.g., architects, engineers or building contractors) to construct a building or structure using cement.13
The Argentine Supreme Court considered that the initiators of a collective process must provide an objective, certain and easily verifiable definition of the class they wanted to represent. The members of the class should be effectively identified so as to facilitate the Court checking the existence of the relevant class as well as determining who its members are. Furthermore, the plaintiff must present the reasons for which the denial of the class action would affect the rights of the represented class.
The Argentine Supreme Court considered these requirements were not fulfilled by the Consumer Association, and the suit was dismissed.
The affected parties of illegal conduct under the Antitrust Law may request three types of damages that are not mutually exclusive: actual damages, recovery for loss of goodwill and moral hardship.
If the injured party can prove that the damage arose from an offence against it and from conduct expressly prohibited by law, then the victim can claim for compensation for actual injuries. The injured party is entitled to claim for actual profits during a given preceding period to be taken for the calculation of the average or normal profit of the injured party. Once the court has determined the monthly or yearly average profit, this figure will be projected over a period to be determined by the court (e.g., six months or one year). The length of time will depend on the specific case and lies within the discretion of the court.
Furthermore, recovery for loss of goodwill can also be requested. Success in obtaining this type of compensation will more likely depend on whether the injured party has suffered an injury to its commercial prestige or credibility. In assessing the damages, a variety of circumstances should be considered, such as the nature of the business, the quantity and importance of the injured party's clients, its prestige and experience in the market, and the volume of gross sales.
Finally, other possible damages could be those related to moral hardship, pursuant to which the injured party can recover additional compensation on the grounds that the unlawful conduct has substantial emotional disturbance.
Although the Antitrust Law does not expressly regulate the existence of pass-on defences, the matter has been analysed by the courts. In that regard, when analysing YPF/Auto Gas (discussed in depth in Section X), the appellate court contemplated the pass-on defences invoked by the accused party and only accepted 30 per cent of the alleged damages regarding that specific matter, since it considered that the remainder had been borne by the final customers.
Even though civil claims regarding antitrust matters can be filed without a prior administrative procedure before the Antitrust Commission, in those cases where the regulator has already analysed the matter, the resolution issued by the Antitrust Commission could have res judicata effect regarding the conduct. This resolution would be used as a basis for the civil court's decision and as evidence for the parties.
The most relevant precedent for a private party seeking damage compensation results from an anticompetitive behaviour previously investigated and punished by the Antitrust Commission. Such was the situation in YPF/Auto Gas.14 The original conduct investigated by the Antitrust Commission was the practice of exporting a large amount of liquid petroleum gas (LPG) at prices that were lower than those charged for LPG in Argentina by YPF, the national gas company, which was controlled by private funds at the time of the alleged wrongful conduct. Further, YPF's export contracts prohibited the re-importing of LPG into Argentina. The Antitrust Commission concluded that this conduct was harmful to the general economic interest, and ordered YPF to cease its price discrimination between the domestic and export markets and to eliminate the prohibition on the re-importing of LPG. Additionally, it imposed a fine of 109,644 million pesos on YPF. The decision was upheld by the Argentine Supreme Court.
Based on this case, a private company claimed that it had been affected by YPF's anticompetitive conduct. Auto Gas based its claim on the abuse of dominant position of YPF having had a twofold effect: an undue increase in prices and a diminishment in the quantities of LPG that were commercialised by Auto Gas. When analysing the case, the court left in record that it would not analyse YPF's anticompetitive conduct, since that had already been analysed and sanctioned by the Antitrust Commission and ratified by the Argentine Supreme Court. Thus, it considered that the existence of the conduct had already been proved, as well as the fact that it had been performed by means of deceit. The analysis was therefore focused on whether there had been damage to Auto Gas and whether it had been caused by the already proven act performed by YPF.
Regarding the damage caused by the abuse of dominant position, Auto Gas considered that it consisted of two items.
The first was the difference in prices that Auto Gas had to pay between the LPG's local price and the price that had been set up for the exporting of the product. On this point, the court took into account what it had been informed by the Antitrust Commission regarding whether such increase in prices had been transferred to the final price paid by the consumers. Thus, the parties who would have been harmed by YPF's conduct would not have been the LPG distributors, but the final customers, who had to endure the price increase. After analysing the financial expert witness reports, the court decided to accept 30 per cent of the claim.
Second, within the abuse of dominant position was the loss of profits from the reduction in the amount of LPG that was commercialised by Auto Gas, due to YPF's practices. The court took into account the analysis performed by the financial expert witnesses regarding the financial records of the company, which showed that this loss of profit rose to 15 per cent of the requested amount due to the relationship between the cost of the product and the financial cost for its commercialisation. The court also analysed other types of damage, such as damage that stemmed from the breach of contract or that originated from the alleged supply cut performed by YPF on Auto Gas.
As a result of this analysis, Auto Gas was awarded 13,094,457 pesos.
Section 13 of Regulatory Decree No. 480/2018 provides that a party may request the confidentiality of information submitted in a proceeding when its disclosure may cause damage to that party's interest. Although this provision is primarily applicable to the merger review process, the enforcement authority may apply it within claims or investigations carried out by the Antitrust Commission to safeguard commercial secrets of the involved parties.
When a private claim is filed before the courts and the opinion of the Antitrust Commission is used, it should not contain sensitive information, and parties can request confidentiality if any trade secret or other confidential information is disclosed in the opinion. The request should provide the reasons, and a non-confidential version of the submitted information should be included. Likewise, all the dockets pending before the Antitrust Commission are secret, and only the parties can access them.
Finally, and pursuant to Section 6 of Law No. 23,187, it is a specific obligation of lawyers to preserve the attorney–client privilege unless otherwise authorised by the interested party (i.e., the client). Likewise, Section 7 provides that it is a right of the lawyers to keep confidential information protected under attorney–client privilege. Furthermore, Section 444 of the Argentine Civil and Commercial Procedural Code provides that a witness may refuse to answer a question if such answer would entail revealing information protected under a professional secret (i.e., including attorney–client privilege).
Under Argentine Law No. 26,589, prejudicial mediation proceedings are mandatory for disputes of an economic nature (unless otherwise exempted by this Law, such as criminal or family claims) as a prerequisite for having access to the courts. Mediation purports to settle disputes out of court by means of direct communication between the parties, assisted by a neutral third party (mediator), with the aim of the parties reaching a mutually beneficial settlement. A settlement in mediation has res judicata effect (claim preclusion). If no agreement is reached, the mediator will formally close the mediation proceedings and the claimant will then be able to pursue its case before the courts.
Pursuant to Section 360 of the Argentine Civil and Commercial Procedural Code, before the beginning of the evidence period the judge invites the parties to settle. The judge can order the parties to go to mediation if the circumstances of the case justify it. If the parties cannot settle the matters in dispute, the trial continues.
Furthermore, parties are able to settle the matters in dispute at any time during the procedure. That settlement must be homologated by the judge.
On 4 July 2018, the National Congress enacted the International Commercial Arbitration Law, creating for the first time a legal framework for the resolution of international commercial conflicts in Argentina by means of a specific law. The Law adopts the main principles set out in the comparative legislation that regulates this matter. Therefore, the application of the Law will be limited to international commercial arbitrations that are seated within the Argentine territory, while domestic arbitrations will continue to be regulated by the local procedural rules: the Argentine Civil and the Commercial Procedural Code, which has been in force since 2015.
However, arbitration remains a rarely used method of dispute resolution in private antitrust litigation in Argentina, and it remains to be seen how arbitrators will apply antitrust proceedings.
Indemnification and contribution
In principle, the injured party is only able to request full compensation from the party that causes the damage by means of an anticompetitive practice. The link between the damage and the anticompetitive practice must be proved for compensation to be granted.
Despite the lack of precedent regarding joint and several liability in Argentina regarding antitrust matters, pursuant to civil general principles,15 if the Antitrust Commission or the courts determine that several persons have jointly caused damage, they would be jointly and severally liable for damage to the injured party, and the latter would be enabled to assert a claim against one or all of the defendants.
However, as detailed in Section II, under the Antitrust Law, all responsible companies will be jointly liable for the payment of the damages or fines, pursuant to Section 65. Furthermore, in addition to said damages, Section 64 sets out that a civil fine in favour of the injured party may also be granted, depending on the gravity and circumstances of the case.
Specifically referring to joint responsibility, Section 65 of the Antitrust Law also regulates the scenario posed as regards leniency applicants, setting out that they 'may be exempted or their liability reduced' as regards damages and fines. The exemption or reduction would depend on the degree of the overall type of leniency or immunity granted to the company. The same Section sets out an exemption to said rule, maintaining that a company's liability to its direct or indirect buyers or suppliers, and to any other injured parties, only applies when the full reparation of the damages of the conduct could not be obtained from the other companies involved in the same anticompetitive conduct.
Future developments and outlook
It remains to be seen whether the Argentine National Congress approves the draft bill in its extraordinary sessions, which are taking place at the time of writing. If approved, the new legislation will have a significant impact on the antitrust regime in Argentina as it includes substantial changes to the structure of the National Competition Authority as well as to both the merger control and anticompetitive conduct regimes.
Furthermore, during the upcoming year, it will be interesting to see whether the above-mentioned high-profile investigations will give rise to damages claims and whether any companies apply for the leniency programme.
1 Miguel del Pino and Santiago del Rio are partners at Marval, O'Farrell & Mairal. The authors would like to thank Paloma Tacchella for her collaboration in the drafting of this chapter.
2 Law No. 27,442.
3 All references to the antitrust authority should be considered as corresponding to the double-tier structure until this authority has been set up.
4 Official press release available at http://www.argentina.gob.ar/noticias/empresa-de-oxigeno-liquido-debe-mantener-precios-y-aumentar-su-produccion.
5 Official press release available at http://www.argentina.gob.ar/noticias/los-frigorificos-deberan-informar-el-precio-de-la-carne-vacuna-y-derivados-para-evitar.
6 Resolution No. 202/2020 issued by the Secretary of Domestic Trade, available at http://www.boletinoficial.gob.ar/detalleAviso/primera/231517/20200701?busqueda=2.
7 Advisory Opinion No. 52 dated 10 July 2000, 'Thompson CDF and Racal Electronics PLC re Request for an Advisory Opinion'; Advisory Opinion No. 68 dated 8 October 2000, 'Alcan Aluminum and Alusuisse Lozna Group AG re Request for an Advisory Opinion'.
8 Case Halabi, Ernesto c/ PEN - Ley 25.873 - Dto 1563/04 s/ Amparo Ley 16.986.
9 Resolution SCI No. 124 dated 25 July 2005 'Loma Negra Cia SA; Cemento San Martín SA, Juan Minetti SA, Corcemar SA, Cementos Avellaneda SA, Cementos del Gigante SA y Petroquímica Comodoro Rivadavia SA re Infraction to Law No. 25,156 (C 506)', CNDC Opinion No. 513 dated 25 July 2005.
13 Argentine Supreme Court of Justice, 10 February 2015, Asociación Protección Consumidores del Mercado Común del Sur e/ Loma Negra Cía Industrial Argentina SA y otros.
14 Argentine Supreme Court of Justice, 11 October 2018, Auto Gas SA c/ YPF SA y otro s/ ordinario.
15 Sections 827 et seq. and 1751 of the Civil and Commercial Code.