Antitrust: restrictive agreements and dominancei Restrictive agreements
As discussed in Section II, the Antitrust Law prohibits as a general principle any type of conduct that hinders, restricts, distorts or limits economic competition, but also prohibits the actions or conduct of those who, not holding a right protected by the Law, seek to prevent or hinder the entry or stay of companies, products or services in all or part of the market (Article 5).
Additionally, it is forbidden for parties subject to the application of the Antitrust Law to exercise actions that restrict economic competition among them, and encourage others not to accept the delivery of goods or the provision of services, to prevent their acquisition or provision, or not to sell raw materials or inputs or provide services to others. Consumers or users and their organisations will not be subject to these regulations (Article 6).
Article 7 of the Antitrust Law prohibits manipulative behaviours, considered as conduct tending to manipulate factors of production, distribution, commercialisation, technological development or investments to the detriment of economic competition.
Likewise, agreements or conventions that are held directly or through unions, associations, federations, cooperatives and other groups that are the subject of application of the Antitrust Law, and that restrict or hinder economic competition among its members, are prohibited.
Agreements or decisions taken in assemblies of the subjects of the application of the Law that restrict or hinder economic competition are null and void.
In accordance with Article 11 of the Antitrust Law, contracts between economic agents that establish prices and procurement conditions for the sale of goods and the provision of services to third parties that produce or may produce the effect of restricting, falsifying, limiting or hindering fair economic competition in the whole market or part of it are prohibited.ii Dominance
Article 12 of the Antitrust Law establishes that the abuse of a dominant position, in all or part of the domestic market, by any or several of those subject to the enforcement of the Law is prohibited, and in particular the following practices are prohibited:
- the discriminatory imposition of pricing and other commercialisation or service conditions;
- the unjustified limitation of production, distribution, or technical or technological development to the detriment of companies and consumers;
- the unjustified refusal to meet the demand on the purchase of products or provision of services;
- the application – in trade or service relations – of unequal conditions for equivalent provisions that place competitors in a disadvantaged position in comparison with others; and
- the subordination of the execution of contracts to the acceptance of additional services that, by their nature or in compliance with trade usages, are unrelated to the purpose of said contracts.
In this sense, in order to determine what a dominant position is, we must analyse Article 13 of the Antitrust Law, which indicates that there is a dominant position when a determined economic activity is performed by a single person or group of persons associated with each other, from their capacity as purchaser to their capacity as provider of services, as well as in their capacity as user thereof; or where there exists more than one person destined for the execution of a certain type of activity, there is no actual competition among them.
When there is a dominant position, the persons who are in said position shall comply with the provisions of the Antitrust Law, to the extent that there are no different conditions established by the regulatory bodies that govern them, in conformity with what is provided in Article 113 of the NC.
In the event the existence of prohibited practices is determined, the Antitrust Superintendency will be able to proceed in accordance with Articles 38 and 49 of the Antitrust Law.iii Significant cases
Since the entry into force of the Antitrust Law in November 2014, the Antitrust Superintendency has published no decisions as a result of administrative procedures or claims.iv Trends, developments and strategies
As a consequence of the general economic regulations established through the OLFP and SUNDDE's dispositions, economic agents are more focused on complying with the OLFP and SUNDDE regulations.v Outlook
Considering the economic model that the government has been developing over the past 18 years, we do not foresee significant changes in the local market in the near future.