Pro-Competition Law
Anti-Dumping Law
Organic Law on Gaseous Hydrocarbons
Venezuelan Constitution
Conclusion
The trend in Venezuelan law in the last decade to give companies and individuals the chance to request confidential treatment for the information they give to administrative authorities could change because of a new constitutional provision.
One of the major concerns of private parties when administrative authorities require information and documents (concerning the parties activities) is the subsequent unauthorized disclosure of the information to third parties. Until the approval by referendum of the Constitution of the Bolivarian Republic of Venezuela in December 1999, Article 59 of the Organic Law on Administrative Procedures governed the confidential treatment of information handled by administrative authorities. This law left the judgement of whether or not the information was confidential in the hands of the administrative authority. The authority was required to give reasons behind conferring such treatment onto a particular piece of information.
Although several laws in the last decade have seemed to impose a new trend on the handling of information submitted by private parties, the new Venezuelan Constitution has strengthened the old principle. This is in an effort to guarantee the general right of all persons to be accurately informed by the public administration of the status of acts in which they might be interested.
With the enactment of the Law to Promote and Protect the Exercise of Free Competition (the Pro-Competition Law) in January 1992, the aforementioned concern of private parties was directly addressed for the first time in a legal instrument. The law established that the documents and information furnished by private parties will be treated as confidential, unless other laws require their publicity or registration. The agency in charge of applying this law, the Superintendence for the Promotion and Protection of Free Competition, has interpreted that confidential treatment is not to be automatically granted, rather it must be requested by the interested party. The authority will then grant it after analyzing whether or not the information or document in question is already publicly available, using a discretionary criterion.
In June 1992, shortly after the publication of the Pro-Competition Law, the Law on Unfair Practices of International Trade (the Anti-Dumping Law) further developed the provision regarding confidential treatment of information and documents submitted by private parties. Here, it dealt with parties applying to the Anti-Dumping Commission. Articles 48, 49 and 50 of this law impose on the agency the duty to refrain from disclosing information received in the course of an investigation, if the party has requested confidential treatment. However, the party must have indicated the reasons why the information or document is confidential, and must have attached a non-confidential summary of the same, or a reasoned statement of why this information may not even be summarized.
The Anti-Dumping Law does set forth a specific criterion for the commission to evaluate the confidentiality request. It must base its decision whether to grant or not on the possibility that disclosure of the information would mean (i) a significant advantage to a competitor, or (ii) unfavourable impact on the party furnishing the information or on a third party.
If the request is denied, the party may withdraw the information or document from the file kept by the agency. If the information afforded confidentiality by the commission is to be given to a judicial authority in an anti-dumping related procedure, the agency must inform the judge of the confidential nature of the information, so that appropriate measures may be adopted by the court.
Organic Law on Gaseous Hydrocarbons
The trend set by the Pro-Competition and Anti-Dumping Laws was followed by the Organic Law on Gaseous Hydrocarbons (September 1999). Article 14 requires parties performing activities governed by the law to furnish to the Ministry of Energy and Mines any information that the latter may request. However, it imposes on the ministry the obligation to keep the information submitted as confidential, when the interested party asks for confidentiality and it is legally warranted.
Article 143 of the recently approved Constitution provides that:
"all citizens [...] have access to administrative records and files, without prejudice to the limits deemed acceptable in a democratic society in matters related to domestic and foreign security, criminal investigation and private life intimacy, under the law which regulates the classification of documents considered confidential or secret."
More importantly, the article establishes that "no censorship is to be made to public officials who inform on matters under their responsibility".
Depending on how the law develops the constitutional principle, the possible change in the trend set by the various laws could have an impact on those companies that must provide information and documents to public authorities in Venezuela. This is insofar as confidential classification of the materials or information could be stricter.
Conversely, companies could also be favoured by the new constitutional principle. Access to public records and files not classified as confidential will allow them to better understand the status of administrative acts and to exert a more efficient defence of their rights as administrative subjects.
For further information on this topic please contact Olga Nass de Massiani or Isabel Marques at Travieso Evans Arria Rengel & Paz by telephone (+58 212 277 3333) or by fax (+58 212 277 3334) or by e-mail ([email protected] or [email protected]).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.