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 new 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 new 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 new 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. 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. The basic rule derived from the provision is that whoever causes damage intentionally or due to negligence is liable to the damaged party.
In relation to the applicable statute of limitations, the new Antitrust Law puts 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 new 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 periods 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 new Antitrust Law is a new chapter devoted to damages, which includes several changes to the current system.
Section 63 of the new 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.