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General introduction to the legislative framework for private antitrust enforcement

Guatemala is in the process of approving competition legislation, but there is currently no specific competition law or antitrust bill in our legal system.

Although there is no specific bill that regulates competition law, there are scattered provisions that regulate antitrust practices.

The Constitution of Guatemala establishes a general prohibition on monopolies and state privileges. It empowers the state to limit companies that may absorb, to the detriment of our national economy, production in one or more industrial, commercial or agricultural activities.

The Commerce Code also has a general provision that prohibits monopolies by imposing the obligation on all companies to supply to anyone who requests from them their products or services, observing equal treatment among the various consumer categories.

The Criminal Code regulates monopolistic behaviour, which is attributable to whoever performs acts, for illicit purposes, that are evidently to the detriment of our national economy, absorbing (or taking advantage of, with some sort of privilege) the production exclusively of one or more industrial branches, or of the same commercial activity or an activity related to the agricultural industry. In addition, the following acts are considered monopolistic:

  1. the hoarding or removal of articles of basic needs to provoke a rise in prices in the local market;
  2. all acts that hinder or seek to impede free competition in production or trade;
  3. all acts executed without government authorisation that seek to limit the production of a certain good with the purpose of establishing or sustaining privileges and profit from said privilege;
  4. selling any product at a price below its cost with the purpose of limiting free competition in the local market; and
  5. causing scarcity of a basic-need product through its export without a permit issued by a competent authority when required.

Some other specific laws regulate, through very concise provisions, matters related to free competition: the Telecommunications Law, the General Electricity Law and the Distribution of Hydrocarbons Law.

In May 2010, Guatemala adopted a commitment as part of the association agreement with the European Union to adopt antitrust legislation by the end of November 2016.

Guatemala is still in the process of approving its first Competition Law, and Congress has not finalised the approval proceedings necessary to send the bill to its final phase of approval before the executive branch of the government.

On 17 May 2016, the Bill for Antitrust Law (Bill No. 5074) was submitted before Congress for its approval.

A general outline of the Bill is as follows:

  1. purpose and general provisions;
  2. free competition defence;
  3. competition advocacy;
  4. the Superintendency of Competition;
  5. administrative procedure;
  6. infringements, sanctions, measures and prescription;
  7. reforms; and
  8. final provisions and transitory norms.

On 4 November 2016, the Congressional Commission on Economy and Foreign Trade issued a judgment on Bill No. 5074 in which it rendered a favourable resolution on the Bill being discussed in Congress. The procedure of incorporating the Bill as law is still pending the approval of Congress of the whole Bill and the final sanctioning of the Bill by the Executive Branch.

On 30 November 2016, Congress approved the Competition Law for final discussion. Although this does not provide for final approval of the law, it does obligate Congress to review the final draft of the law and sanction its approval.

On 9 March 2018, the Congressional Commission on Economy and Foreign rendered a favourable opinion on Bill No. 5074.

On 10 April 2018, Bill No. 5074 was heard for the first debate by Congress.

All references made hereafter related to Bill No. 5074 may be subject to change in light of future amendments that could be approved by Congress during final discussions of the Bill.