Argentina: Competition Authority

Antitrust in Argentina is currently undergoing a significant transformation. Since the inauguration of President Macri's administration, competition law enforcement has become a political priority, as President Macri himself announced on 1 March 2016, when opening the 2016 congressional sessions.

In February 2016, the current President of Argentina's antitrust agency was appointed. The oath-taking ceremony took place at the main saloon of the Presidential Palace before President Macri and was witnessed by the entire Cabinet of Ministers and the heads of the Senate and of the Supreme Court. This was another symbolic gesture of the importance that the government has decided to give to competition issues in Argentina.

By mid-2016, competition was presented by the government as one of the eight most important pillars of the National Productive Plan, and in December, it was included as number eight among the 100 political priorities for 2017.

Since the appointment of its new authorities, Argentina's antitrust agency, the National Commission for the Defence of Competition (CNDC) has assumed the main objective of establishing competition as the primary way of interaction between companies and consumers so that companies have the chance to grow based on efficiency, innovation and quality of their products, increasing the alternatives to consumers in terms of quality, prices and commercial conditions. To reach this objective, three main challenges have emerged:

• achieving best practices in competition matters;
• promoting a competition culture; and
• proposing changes in the legal framework to improve the institutional design and develop state-of-the-art tools for competition enforcement.

The reorganisation of the internal structure of the CNDC, the improvement of the agency's performance, the issuance of significant reports and decisions, the introduction of competition issues to the public debate, the return of Argentina's CNDC to the international arena and the process for the enactment of a new competition law were some of the milestones reached during 2016.

This article navigates Argentina's antitrust history with initial regulations since the beginning of the twentieth century, institutional issues, and the future trends towards the achievement of its objectives.

Historical background of Argentine antitrust law

Argentina's first antitrust legislation was Act 11,210, enacted in 1923, which restrained ‘speculation and trusts' and was passed with the intention of restraining banks from making transactions with ‘colluded corporations or businessmen'.

Act 11,201 was replaced by Act 12,906, on December 1946, establishing that ‘every settlement, arrangement, combination or capital merger aimed at establishing […] monopolies and turning them profitable in one or more forms […] in one or more locations or in the whole national territory' would be a criminal offence.

None of these pieces of legislation established the creation of a special competition authority to enforce antitrust rules in the country. Enforcement was, therefore, left to the judiciary itself.

Act 22,262, passed in 1980, created the CNDC as the administrative body in charge of the enforcement of Argentina's antitrust law, under the scope of the then Secretary of State for Trade and International Economic Negotiations. The CNDC lacked autonomy to perform its functions as an independent body. Its role was thus restricted to the issuance of non-binding opinions of the cases under study, the issuing of binding decisions being left to the above-mentioned Secretary.

In 1999, Act 22,262 was replaced by Act 25,156 (the Law for the Defence of Competition (LDC)), which became the main antitrust regulation in Argentina, after the 1994 amendment of the Argentine Constitution.¹

The LDC created a new administrative agency, the National Tribunal for the Defence of Competition (TNDC), which was supposed to be the independent national competition authority in charge of the enforcement of the LDC. However, since the enactment of the LDC, and in spite of the various recommendations and orders issued by the Supreme Court of Justice during the past years, the TNDC was never put in place. Since then, antitrust matters have been handled by the CNDC.

A merger control system was introduced by the LDC, in compliance with the antitrust legislation in force in most countries around the world, and criminal charges were eliminated as possible sanctions for antitrust violations.

In September 2014, Act 26,993 introduced certain amendments to the LDC. In particular, it gave the Executive Power the ability to designate the antitrust enforcement authority, eliminating the TNDC as created by Act 25,156 and, thereby, putting an end to any prospects of an independent body in charge of the enforcement of antitrust law in Argentina.

Recent developments and challenges in competition law enforcement

Since the beginning of 2016, as one of the first steps taken under the current administration, new rules have been put in place in order to normalise the enforcement of competition law in Argentina.

In May 2016, Decree 718/2016 established the Secretary of Commerce of the Ministry of Production as the enforcement authority of the LDC, acting under the powers conferred by Law 26,993. Said Decree also stipulated that the CNDC shall act under the purview of the Secretary of Commerce of the Ministry of Production.²

In July 2016, the Chief of the Cabinet of Ministers issued Administrative Decision 756/2016, by means of which the organisational structure of the first operational level of the CNDC was approved, incorporating four National Directorates, in charge of Anticompetitive Conducts, Economic Concentrations, Economic and Legal Studies and Competition Advocacy, and a Directorate of Registry. For the first time in its history, the Argentine competition authority has special task forces to provide specific studies and perform competition advocacy activities. In October 2016, the Ministry of Production issued Resolution 614-E/2016, approving the creation of the organisational structure of the second operational level of the CNDC, incorporating eight Directorates.³

Under this framework, the Secretary of Commerce delegated its investigative and prosecutorial functions to the CNDC, by means of Resolution 190-E/2016, empowering the agency to conduct the investigation stage and the committal proceedings in progress or to be filed pursuant to the LDC, while the final and binding ruling still rests with the Secretary of Commerce.⁴ Resolution 190-E/2016 also empowered the CNDC to undertake market studies and investigations, maintaining the Secretary of Commerce the power to request to the CNDC the investigation of sectors it considers of relevance.

Improving practices and performance

2016 was a year full of challenges for Argentina's antitrust authorities. Although the aims set at the beginning of the term of the current authorities were reached last year, it is still necessary to keep working towards better competition enforcement in Argentina. Among others, Argentina's antitrust agency took the following steps in 2016:

Training and capacity-building activities

The CNDC's staff received training on best antitrust practices from other antitrust agencies, scholars and international bodies, such as, the US Federal Trade Commission, the US Department of Justice, the Inter-American Development Bank, the World Bank, the Organisation for Economic Co-operation and Development (OECD), the Inter American School of Competition (headed by the CNMC, Spain's antitrust agency) and INDECOPI-UNCTAD/COMPAL School.

Heads of antitrust agencies of the region participated in the ‘Competition Week' organised by the CNDC for the first time in history in order to foster the creation of a culture of competition in the country.

Returning to the international arena

One of the main goals set by the current authorities was to put Argentina back in the international arena. Among others, during 2016, Argentina was invited to participate in the December meetings of the OECD Competition Committee and participated in the OECD Global Forum on Competition, submitting written contributions to both events. The CNDC chaired UNCTAD's 15th session of the Intergovernmental Group of Experts on Competition Law and Policy, and rejoined the International Competition Network, participating actively in the Advocacy Working Group and in other events hosted by the network during 2016. It also participated on the 64th ABA Antitrust Spring Meeting, in the third COMPAL Annual Conference held in March in Colombia, and in several workshops organised by Chile's National Economic Prosecutor's Office (FNE).

Competition advocacy: market studies

During 2016, the CNDC commissioned several market studies in order to diagnose the competition conditions in different markets, such as aluminium, steel and petrochemicals, bovine meat, dairy products, laundry detergents, edible oil, credit cards and electronic payment systems, mobile telecommunications and inter-city passenger land transport. The objective of these studies was to define the priorities for 2017, identifying those markets with weak competition conditions and in need of certain adjustments and, if needed, issuing pro-competitive recommendations.

In August 2016, the CNDC issued Resolution 17/2016, by means of which it made public the results of the study on credit cards, debit cards and electronic means of payment market and recommended changes to enhance competition. The pro-competitive recommendations were directed to Argentina's Central Bank (BCRA) and to the Secretary of Commerce,⁵ and established the following: to review the electronic payment system framework in order to promote a more competitive market; to promote a mechanism to reduce entry barriers in alternative means of payment; to regulate the interchange fee following international best practices; and to establish a mechanism to guarantee transparency of the financial costs in credit card transactions.

The recommendations had a major impact, not only on the news but also on the market structure, and on Argentina's financing policies. Most of the CNDC's recommendations were taken into account by the Secretary of Commerce and the BCRA, and resulted in the opening of an ex officio investigation to analyse the possible existence of anticompetitive practices.

The report issued by the CNDC won first prize in the Advocacy Contest organised by the World Bank and the International Competition Network, in the category of electronic commerce of goods and services.

Performance improvements

The creation of a new organisational structure and the improvement in the CNDC's practices has made it possible for the CNDC to increase its productivity. During 2016, the agency issued 246 opinions, 3.2 times the average of opinions issued during the previous nine years. This improvement helped to reduce the delay in the analysis of merger cases, taking into account that by the end of 2015 the average time of analysis for mergers and acquisitions was 3.2 years, which was further reduced to 1.8 years by the end of 2016. At present, the average period for the analysis of new merger and acquisition files is six months.

In addition to the changes in procedures that have allowed for a greater number of decisions and shorter processing times, efforts have also been made to improve the quality of the analysis, through the incorporation of quantitative techniques that help to give greater economic foundations to the CNDC's decisions. These techniques have not been taken by the CNDC as the only elements to be taken into account, but have been additional elements that helped to reach conclusions that were consistent with the information provided by other elements of the judgment.

These analytical tools have been used in three horizontal merger cases whose opinions were issued in November 2016. In all three cases, the tools that were applied focused on three main points: the analysis of the potential existence of a dominant position through the observation of the dominance threshold, the analysis of the intensity of competition through upward pricing pressure indices, and the definition of relevant markets through the critical elasticity.

The CNDC is currently working on updating its guidelines for merger review. The new guidelines will include the use of said analytical tools as part of the routine analysis of economic concentrations.

Changes in the regulatory framework

Introduction of a new antitrust law

The major challenge regarding antitrust issues in Argentina is to update the regulatory framework in order to achieve best international practices, aiming at increasing deterrence and pursuing independence, transparency, efficiency and predictability of agency decisions.

With this in mind, the CNDC, jointly with legislators of the official party, drafted a new competition bill (the Draft Bill) during the second half of 2016. The CNDC also opened a public consultation process to receive comments and proposals from the antitrust community worldwide. In September 2016, the Draft Bill was submitted to the Congress.

The Draft Bill was designed following both Argentine reality and experience as well as antitrust international trends and best practices. One of the main objectives of the Draft Bill is the creation of an independent authority, the National Competition Authority (ANC), with sufficient powers to adopt its own decisions, control its own budget and function without political interference.⁶

The Draft Bill also sets forth the creation of a Secretary of Investigation of Anticompetitive Conducts and a Secretary of Economic Concentrations, who shall be in charge of the prosecutorial phase of conducts and merger control proceedings, respectively, acting within the scope of the ANC.⁷ Hence, within the new competition authority, guarantees to due process will be enhanced through the separation between the prosecution and investigation functions, on the one hand, and the decision function, on the other hand.

The Draft Bill also creates the Competition Advocacy Under-Secretary, under the purview of the Secretary of Commerce. Among other tasks, this Under-Secretary will be the formal channel through which the central administration would be able to propose specific market investigations and political initiatives related to competition law. This shall prevent the ANC from any informal pressures from the Executive Power, contributing at the same time to fostering the independence of the competition authority.

Regarding mergers and acquisitions, the Draft Bill includes an ex ante control, which would replace the current ex post regime. This change aims to solve a current problem of mergers and acquisitions that are submitted for evaluation after the deal is closed and creates new challenges for the competition authority in terms of timing for decision making. In order to help with this issue, the Draft Bill regulates a fast-track procedure for those mergers and acquisitions that fall into a specific scope of low potential impact on competition. This change serves the purpose of speeding up the procedure in those cases, as well as devoting greater resources to more complex cases.

Another major change in this area is the updated and adjustable thresholds for notification of mergers and acquisitions. The thresholds have been frozen over the past 15 years in the local currency (pesos). In a high inflation economy, this meant that an increasingly high number of operations became notifiable. As this was not the object and purpose of the LDC, the thresholds not only need to be updated, but also need an automatic adjustment system to avoid this same problem arising in the future. The Draft Bill addresses this issue by providing that the threshold would be indexed following the evolution of the Argentine Consumer Price Index.

On the other hand, following international best practices, the Draft Bill includes in the Argentine antitrust regime a leniency programme, which does not currently exist, with the purpose of facilitating proper detection, prosecution and sanctioning of cartels. Indeed, Argentina has a poor record of cartel sanctioning when compared to other countries in Latin America. The design of this leniency programme brings some of the world's current trends that have proved to be successful in dealing with the problem of cartels. Specifically, the programme offers several options for those firms that reveal their participation in a cartel: full immunity to the first firm that reveals having participated in a cartel (with an obligation to cease the wrongful conduct and to cooperate by providing proof of the existence of the cartel); a reduction of between 20 and 50 per cent of the maximum fine for the second firm that does so; and a supplementary benefit for the firm that, even without cooperating in the prosecution of the cartel under investigation, discloses or recognises another different coordinated antitrust activity.

The Draft Bill also brings new guidelines for the application of fines, so as to improve deterrence. The current cap to fines for anticompetitive behaviour was set in 1999 at 150 million pesos, which at the time was equal to US$150 million. Today, however, this cap represents less than US$10 million and has, therefore, lost its deterrence effect. The Draft Bill sets maximum fines related to the profits that the sanctioned firm has obtained as a result of the antitrust violation. Fines can be (i) up to 30 per cent of the relevant market turnover, multiplied by the number of years of the practice, which may not exceed 30 per cent of the consolidated national turnover; (ii) up to double the illicit gains; or (iii) up to 200 million adjustable units (approximately US$200 million).

Moreover, the Draft Bill also updates the daily fines for firms that do not comply with the obligation of notifying economic concentrations according to section 10, or that do not comply with the remedies set by the CNDC in order to approve certain mergers; also including other sanctions such us divesture, cease orders, conditionings, disqualification from exercising trade activities from one to 10 years, and exclusion from the Registry of Government Suppliers.

Regarding damages, the Draft Bill provides those who have been injured as a consequence of the activities sanctioned by antitrust laws with the possibility of filing a claim for damages, stipulating that the resolution of the ANC in relation to a violation of the law, shall have force of res judicata once it becomes final. This claim shall be filed through expedited summary proceedings as stipulated by Argentina's Code of Civil and Commercial Procedure.

Finally, the Draft Bill also proposes the creation of a specialised court - the Court of Appeals in Antitrust Matters - to deal with competition matters, in order to improve the judicial review of competition authority decisions. This specialised court shall act under the scope of the Federal Courts of Appeals in Civil and Commercial Matters.

Conclusions

Argentina is currently trying to introduce and implement state-of-the-art practices to promote more efficient ways to deal with cartels and mergers and acquisitions.

2016 was a year full of challenges for the CNDC. 2017 presents as an exceptional opportunity to consolidate the work done during 2016 and to continue to strengthen antitrust institutions in Argentina. Although many things can be done, and have been done, within the current institutional framework, the update of the current competition law is fundamental to achieve independence of the competition authorities, update notification thresholds for mergers and acquisitions, and increase the deterrence effect of sanctions.

Notes

1. The 1994 Constitutional reform was one of the main aspects that influenced the enactment of the LDC. Article 42 of the 1994 Argentine Constitution establishes the right to effective competition that was incorporated by the LDC in 1999: ‘The Federal Authorities shall provide for the defence of competition against any kind of market distortions, the control of natural and legal monopolies, the control of quantity and efficiency of public services and the creation of consumer and user associations. The legislation shall set forth efficient procedures to prevent and resolve conflicts.'
2. Previously, the CNDC acted in the area of the Under-Secretary of Domestic Commerce.
3. The resulting internal structure of the CNDC can be found at www.argentina.gob.ar/sites/default/files/organigrama_actualizado_defensa_de_la_competencia.pdf.
4. The criteria under Resolution 190-E/2016 follows the National Supreme Court's criteria established under various recent leading cases.
5. To the BCRA as the market regulator; to the Secretary of Commerce as the enforcement authority of the LDC, and to both of them jointly as enforcement authorities of the credit cards law.
6. Pursuant to the Draft Bill, the NCA shall be composed of five members that will be designated by the Executive Power, from a shortlist that shall be the result of a public contest decided by an independent jury of six people (two from the Executive, two from the Congress, and two from the legal and economic academia). Every candidate shall have a suitable technical record, sufficient experience in competition issues, as well as a well-known moral character.
7. Besides this, the ANC will have the right to design its internal structure, including a studies unit and an advocacy unit, just like the current CNDC.