COMPETITION LAW IN LATIN AMERICA Main Feautures and Trends Alfonso Miranda Londoño April, 2012
Introduction to the Competition Law in Latin America. • Main features and trends of Competition Laws in Latin America. • Recent Developments • Recent and Important cases. • Conclusions drawn from the application of Competition Laws in Latin America. Contents
Introduction | A. First tear of Competition Legislations • During the first half of the 20th Century, some Latin American countries issued competition laws, as a result of the influence of the developments in that area in the U.S. and Europe. • The most representative legislations of that era are: • México -1934 • Argentina – 1947 • Colombia – 1959 • Chile – 1959 • Brasil – 1962 • However, Competition laws and policy were in general not applied in these countries, because of the protectionist development model defined for Latin America under the influence of The Economic Commission for Latin America (ECLA) did not help to create a proper environment for the application of competition laws..
Introduction | B. Second tear of Competition Legislations • After the Washington Consensus (1990), the Latin American countries decided to change the protectionist model for a development model based in markets open to international competition. • All Latin American Countries introduced a free competition principle in their Constitutions and During the first half of the 20th Century, some Latin American countries issued competition laws and created competition authorities.
Introduction | C. The Competition Landscape As a result, 19 countries in Latin America and the Caribbean have issued now Competition Laws: Argentina, Barbados, Brasil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras, Jamaica, México, Nicaragua, Panamá, Perú, República Dominicana, Saint Vincent & Grenadines, Uruguay, Trinidad & Tobago and Venezuela. The countries that do not have a general competition Law are Guatemala, Bolivia and Paraguay • The laws prohibit both anticompetitive agreements and the abuse of a dominant position. • They also provide for merger control with the exception of the Peruvin law.
I. Introduction| D. Recent Laws and Amendments • Competition laws enacted recently for the first time in the following countries/jurisdictions: • CARICOM’s VIII Protocol (2000) • Barbados (2000) • St. Vincent and Grenadines (2004) • Honduras (2005) • El Salvador (2004) • Trinidad & Tobago (2006) • Nicaragua (2006) • Uruguay (2007) • Dominican Republic (2008) • Ecuador (2011) • Competition laws recently amended in the following countries/jurisdictions: • Brazil (2000 and 2011) • Argentina (2001) • Andean Community (2005) • Mexico (2006) • Panama (2006 and 2007) • El Salvador (2007) • Peru (2008) • Chile (2002, 2003 and 2009) • Colombia (2009) • Costa Rica (2010) • Mexico (2011) • New competition laws or their amendments are currently discussed in the following countries: Argentina, Guatemala and Paraguay.
II. Main features and Trends | A. In General • Public enforcement of the laws prevails over private enforcement. • Proceedings have an administrative and/or civil nature, not a criminal nature with the exception of Argentina and Brazil. (In Colombia there is a recent statute that makes bid ridging in public contracting a criminal offense) • Thus, sanctions are in general pecuniary not penal • Competition authorities are part of the Executive Branch of power and have a dual role: investigation and decision (Chile and Panama are an exceptions) • Although the authorities are independent, they are influenced by the incumbent Government.
II. Main features and Trends | B. Recent Modifications • The common features of the amendments introduced in the last decade and the projects currently being discussed are the following: • Introduction of leniency programs (Brazil, Mexico, Panama, El Salvador, Peru, Chile, Colombia, Ecuador) • Increase in the economic sanctions (Andean Community, Panama, Mexico, EL Salvador, Peru, Chile, Colombia) • More investigative powers for competition authorities, e.g. dawn raids and communication interception (Brazil, El Salvador, Chile, Costa Rica) • Amplification of the agents/markets subject to the law (Panama, Peru, Colombia, Costa Rica) • Modification of merger notification thresholds (Argentina, Mexico, Colombia)
II. Main features and Trends | B. Recent Modifications • Inclusion of new exceptions and exclusions (Andean Community, Panama, Colombia,) • Introduction of settlements (Andean Community, Panama, Ecuador) • Participation of third parties in the proceedings, e.g. competitors and consumers (Panama, Colombia) • Introduction of ex ante merger control (Ecuador, Costa Rica) • More autonomy (political) for competition authority (Chile)
II. Main features and Trends | C. Enforcement Figures Fines imposed by competition authorities (2000-2003) Source: Competition authorities
II. Main features and Trends | C. Enforcement Figures Fines imposed by competition authorities (2004-2007) Source: Competition authorities
II. Main features and Trends | E. Enforcement Strategy • At the beginning, Latin American competition authorities focused on anticompetitive agreements (mainly price-fixing). • Nowadays, they are also interested on the prosecution of exclusionary conducts (with foreclosure effects): • Abuse of dominance (i.e. discrimination and exclusivity cases) • Vertical anticompetitive conducts (i.e. vertical price fixing cases). • LA Competition authorities have focused a lot of energy investigating agricultural cases. In many events investigating the side of the industry in protection of the producers.
III. Recent Developments | ECUADOR • Ecuador was one of the only countries in LA that did not have a competition law. • By means of Decision 616 (2005) of the Andean Community, it was decided that meanwhile Ecuador and Bolivia issued their own laws, they would apply Andean Decision 608 as the internal Competition Law. • President Correa issued Decree 1614, 2009, appointing a Competition Director and ordering the application of Decision 608, while Congress was engaged in the discussion of the law. • During this time no fines were impossed, nevertheless several market studies were conducted by the Subsecretary for competition. • Last month President Correa sanctioned the new Competition Law
III. Recent Developments | ECUADOR • The Law is titled ORGANIC LAW FOR THE REGULATION AND CONTROL OF MARKET POWER. • The Law presents a general prohibition and a list of prohibited conducts, which should allow for the application of the rule of reason in the application of the general prohibition, and the per se rule in the case of the specifically prohibited conducts. • The Law prohibits anti competitive agreements and the abuse of market power. • It provides for ex ante merger control. • It also prohibits unfair competition. • The Law creates block exemptions and specific exemptions for agreements that create efficiencies and promote progress, provided that they can be transferred to the consumers. • The law Creates a Competition Superintendence with ample powers.
III. Recent Developments | ECUADOR • The new Law punishes among others the following conducts (i) The creation of any barrier to entry or exit in a relevant market (ii) Conditioning the sale to the establishment of exclusivity clauses in the purchase(iii) Any conduct that prevents or difficult the access or permanence of a current or potential competitor in the market (iv) Concerted and vertically suspend the provision of a market monopoly services to a provider of goods or services, public or private (v) The imposition of trade conditions tend to have exclusionary effects • This is the first Antitrust Bill approved in Ecuador.
III. Recent Developments | BRAZIL • Afte two months of discussions the new law 12.529 was enacted on November 30th, 2011 • The law modifies the structure of Brazilian Competition Law. • The antitrust authorities are CADE and the Secretary of Economy at the Ministry of Finance • Cade is composed by the Competition Tribunal, the Competition Superintendence and the department of Economic Studies • The Law creates an administrative positive silence in case that mergers are studied for more than 11 months.
IV. Recent and important cases | ARGENTINA • Relevant Cases: • The National Commission for the Defense of Competition: • Fined Glaxosmithkline and Stiefel Laboratories for Gun Jumping . • Fined The Bahia Blanca Medical Association for exclusivity clauses in the Association's Statutes. • Fined Fox Sports America Network, for tying the acquisition right for one channel to the additional purchase of the right of another.
IV. Recent and important cases | BRAZIL Since 2003, Brazil's antitrust authorities have intensified their efforts to identify and impose severe sanctions for cartel conduct. Since then, 27 Cartels were condemned by CADE, and 34 executives were sentenced to imprisonment or to the payment of criminal fines, and a hundred of other executives are facing criminal charges on the suspicion of cartel. Some items are indicative of this fact, 15 clemency agreements were signed since 2003. On February 2009, CADE performed the first operation in an international cartel case, involving Brazilian, American and European Antitrust Authorities.
IV. Recent and important cases | BRAZIL • AMBEV’s case in Brazil: • Facts according to CADE’s decision: • AMBEV, a firm with dominant position in beer market of Brazil, implemented a fidelity program (“Tô Contigo”) • The program offered (non-linear) discounts to certain retailers in exchange to exclusivity of purchase from AMBEV. • Alleged conducts according to CADE’s decision: • The conduct diminished competition, foreclosed the market and artificially elevated competitors’ costs. • Infringed articles: Law 8.884/94: art. 20, I y IV y art. 21, IV, V y VI. • Decision / Sanctions: • USD $ 191.5 MM (2% of AMBEV’s sales in the year 2003) • Immediate termination of the conduct • Publication of decision’s extract in major newspaper
IV. Recent and important cases | BRAZIL • Othet cases ruled by CADE: • Frigelar Moto, Intercorp Comercio, Asociacion brasileira de productores de refrigeracao.CADE considered that the exclusivity agreements in the distribution contracts, didn´t break competition laws as long as the distributors were able to unilaterally terminate the contract. • IndustriasDyno, Brasil S.A. CADE considered that exclusivity clauses that allowed the buyer to demand an audit in order to find out whether the price given by the seller was according to what was agreed, was not a clause that breached competition law.
IV. Recent and important cases | BRAZIL • Relevant Cases: • The Vitamins Cartel Between 1990 and 1999, the nine greatest worldwide vitamin producers (AG, F. Hoffman-La Roche AG, Aventis S.A., Merck KgaA and Solvay Pharmaceuticals) divided the market in separate regions that were allocated to each of them. As a consequence, competition was eliminated and consumers paid artificially higher prices for vitamins. The cartel was detected because one of its participants, Rhone-Poulenc (currently Aventis), reported its conduct to the U.S. and the European antitrust authorities and cooperated with the investigation in exchange for immunity. As a result of the investigation, F. Hoffman-La Roche and BASF, also part to the cartel, plead guilty and the U.S. Department of Justice imposed fines of, respectively, US 500 million and US 225 million. CADE imposed fines in excess of R$15 million against BASF, F. Hoffman-La Roche and Aventis for having taken part in a cartel that affected the Brazilian market. According to CADE, these firms had restricted the output and raised the prices of vitamins in Brazil.
IV. Recent and important cases | COLOMBIA • Cement case in Colombia: • Facts according to SIC: • Consciously parallel conduct regarding prices of three cement producers (Holcim, Argos and Cemex) in the period June – December 2005 • Supposed information exchange and meetings between the firms’ executives • SIC didn’t accept the firms’ explanations for their pricing decisions • Alleged conducts according to SIC: • Price-fixing, market sharing and quotas • Fines: • SIC fined each firm with USD $ 460,578
IV. Recent and important cases | COLOMBIA • SetasColombianas. The mushrooms producers were accused of Abuse of the Dominant Position through predatory pricing. SIC determined that although the firm did had a dominant position in the market, and that in some periods the prices were set below the costs, SetasColombianas didn´t do it with the exclusory purposes. No sanction was imposed. • Terpel. The claim was brought to the Constitutional Court by a paraffin dealer. The paraffin dealer had claimed against government entities that there was a inconsistency between the agreed conditions of the product and the actual product delivered. In retaliation Terpel cut off the paraffin supply to the dealer. He brought an action of fundamental rights protection against the Constitutional Court. The Court dismissed the case based on the fact that free competition wasn´t a fundamental right, and it was out of its jurisdiction to rule such matter.
IV. Recent and important cases | COLOMBIA • Sugar Producers. Fined for price fixing in the purchase of sugar cane. Acquitted for distribution of the lands dedicated to production of sugar cane. • Chocolate Companies. Fined for price fixing in the purchase of cacao to the growers. Acquitted for price fixing of chocolate. • Rice Grinders. Fined for price fixing in the purchase of rice. • SABMiller. Acquitted for abuse of dominant position in the launching campaign of the Peroni beer brand. The authority found that even though SABMiller had dominant position, the fact that the company entered into promotion contracts with exclusivity of advertisement with selected bars and restaurants, did not produce a barrier to entry in the market.
IV. Recent and important cases | COLOMBIA • This case is similar to the investigations carried out in Brazil, El Salvador and Peru among others. • The SIC preliminaryreportsuggestedthatinvestigatedcompanyshould be fined, neverthelesstheSuperintendentconsideerdonhisdecissionthatargumentspresentedduringtheinvestigationweresuffiicient and giventhelack of evidenciarysupportduringtheinvestigationithadnotbeenprovedbeyondanyreasonabledoubttahSABMillerhadincurred in theallegedconducts.
IV. Recent and important cases | CHILE • FNE’s accusation against Drugstores in Chile: • Facts according to FNE: • The accused firms had 90% market share of the drug retail business in Chile • After a price-war (during the year 2007) the three investigated drugstores supposedly coordinated price increases regarding 222 different products. • The drugstores were supposedly aided by laboratories’ suggested prices and by their public (and anticipated) announcements of prices increases • Alleged conducts according to FNE: • Price-fixing: • The accusation was based on circumstantial evidence • No alternative and reasonable explanation for the firms’ conduct besides collusion.
IV. Recent and important cases | CHILE • FNE’s accusation against Drugstores in Chile: • Settlement/Proceedings: • FASA, one of the accused drugstores, signed a Leniency settlement with FNE in March 2009, which was approved by the TDLC on April 2009: • FASA accepted contacts between firms’ executives with the objective to increase prices of certain products. • FASA accepted that price lists were elaborated with its competitors • FASA delivered evidence of the mechanism used to increase prices and accepted to collaborate in the elucidation of the facts. • FASA accepted a reduced fine of approximately USA 1.08 MM • FNE retired the charges against FASA and its directives • The procedure before the TDLC against the other two accused drugstores is ongoing. FNE to impose fines around USD $100MM to each one.
IV. Recent and important cases | ECUADOR • The subsecretary for competition of Ecuador, is leading the following economic studies: • Prices for vehicles spare parts. • PVC price levels. • Milk Industry analysis • Iodide Salt market analysis • Bread price analysis • Mass urban transport vehicles spare parts. • Sugarcane mill ECUDOS market situation. • Meat production market analysis.
IV. Recent and important cases | ELSALVADOR • Travel agencies case in El Salvador • Facts according to the Competition Superintendence: • Four travel agencies presented offers that contained identical prices (value of commissions) in two different public bids organized by the Ministry of Economy and CORSATUR • The travel agencies had different cost structures: identical prices could not be justified with the argument that each agency had fixed individually the commissions according to its costs • Alleged conducts • Bid rigging (price agreements) • Sanctions • A total of US$3,046.50 for each travel agency for each bid in which they participated) • Ordered the communication of the decision to the Ministry of Economy, to initiate a proceeding to disqualify the agencies for future bids
IV. Recent and important cases | EL SALVADOR • Relevant Cases: • Agricultural products brokers: • The main 6 agricultural product brokers published a note on the local newspapers, informing the public that they were about to increase their commission rates. After the investigation opened, they pleaded that the agreement was never performed, and that the rate was raised due to economical reason, as their level was very low. Each broker was fined with 5000 USD. • Flour Producers: • The investigation started based on leads of market allocation between the two flour producers of El Salvador, in a ratio of 55-45% . The agreement was effectively proved based on sales information exchange, market share and a quotas compensation system. The fined imposed was 3% of gross annual. This case was very publicized due to the fact that it affected consumers basic goods.
IV. Recent and important cases | EL SALVADOR • Cases under investigation. • Sugarcane industry for the abuse of dominant position and vertical price fixing. • Telecommunications industry for price fixing. • Naval Services Firms for collusion in public bids.
IV. Recent and important cases | HONDURAS • Relevant Cases. • Pharmaceutical Companies . The pharmacy and drug store association summoned an appointment to establish the maximum discount that could be given to customers. The investigation opened due to a complain regarding predatory prices, but the authority fined the firms for price fixing with 200,000 USD aprox. • Cement Companies. Price fixing and market allocation. The authority emphasized on how reprehensible was the fact of sharing information through the non-profit organization called the Cement Institute. 87 mm Lempires • TV Cable Companies. Abuse of the dominant position, through exclusory practices against its competitors. 180,000 USD aprox. • Cerveceria Hondureña: The investigation opened because of a complain brought to the Competition Commission, regarding an abuse of the dominant position through exclusivity clauses.
IV. Recent and important cases | MEXICO • Record one billion dollars fine to Slim – America Movil: • In april the CFC imposed a record fine to Slim’s America Movil for foreclosing competition to other telecommunications companies by raising the access fees to its network. • The decision has been challenged by America Movil and it is possible that the company prevails again .
IV. Recent and important cases | MEXICO Relevant Cases: The CFC issued two resolution in which it has developed mainly, two topics regarding violations of the Competition Law: The first one refers to fine imposed to the shipping companies and their legal representatives, for making price fixing in the cost of transport from Cozumel to Isla mujer. To impose the Fine, the authority took o account the following hints: (i) The announcement of the new tarrifs was done on the same day (ii) The rates varied on the same categories (iii) The announcements were made jointly in the same format that contained the logo of the two companies. In addition, in the route Playa del Carmen-Cozumel the CFC found a market allocation agreement to divide the time in which they operated- The amount of the fine imposed in this case goes over 2,062,529.96 USD .
IV. Recent and important cases | PANAMA • Relevant Cases. • Flour Producers. Commission accused the flour producers of price fixing, this was tacit collusion case, and the Commission fined the firms as there was no reasonable economical explanation for the price identity. • Panamas Credit Firms Association. The consumer league sued a claim against the association, as non of its members gave credit to the bad credit listed people. Commission considered that there was no competition law breach as there was a reasonable economic motive for this behavior. • Meat Producers. 4 Meat producers agreed to follow the published prices on the local newspapers The effects of the agreement took place on the retail market, as the meat stores were owned by the meat producers. The commission fined the investigated firms.
IV. Recent and important cases | PERU • Relevant Cases: • AFP (Pension Funds) Abuse of the Dominant Position. Local workers association filed a claim against AFPs for price fixing, regarding the commission rates for factoring. The court determined that there was a dominant position on behalf of the investigated firms, but that these was a matter subject to state regulation, and antitrust laws could not be enforced. 2003. • Transandean Railway . INDECOPI opened an investigation, against PeruRail, FerrocarrilTransandino (Fetransa) and Peruval Corp, for not allowing access to the passenger transport markets. The second charge was the abuse of legal actions with anticompetitive goals, generating costs and delays to their competitors. The fine imposed was 800,000 USD.
IV. Recent and important cases | PERU • Relevant Cases: • Petro-Peru. Abuse of dominant position related to exclusive dealing and refusals to deal. Petro-Peru claimed that it did not had dominant position as its market share was only 37 % , and that its legal obligations did no involved allowing its competitors to use its storage facilities. • INDECOPI considered that in this case Vopak, a subsidiary of Petro-Peru, didn`t compete with the claimants as it didn´t distribute GLP, it only served as a storage firm. And that in light of this it could control the downstream market to which the claimants belong, consequently it did had dominant position.
IV. Recent and important cases | PERU • Relevant Cases: • Grupo Backus. Bottle Exchange System. • This system allowed consumers to exchange bottles of one brand of beer for another with no additional cost. This allowed consumers to access a wider number of beer brands, without having to buy new bottles, or to keep large inventories of such. • This system is managed by a committee, whose members are the Grupo Backus firms. This committee denied several requests from Ambev Peru to become a member, based on the conditions established in their statutes. • INDECOPI considered that in this case, the denial of membership to Ambev Peru had the only exclusory purpose to close the Peruvian beer market for this firm, as it consequentially denied access to the bottle exchange system, and some of the brands that the committee managed. • On 2009 Ambevwithdrew its claim, closing the investigation against Grupo Backus.
V. Conclusions drawn from the application of Competition Laws in Latin America
V. Conclusions | A. Legal Contingency • The actual trends in competition law enforcement in Latin America can generate legal contingencies: • National competition laws are present in 19 countries • Higher fines and sanctions • More prosecution powers for competition authorities • Broader scope of investigations: not only cases of horizontal agreements but also cases over other conducts that have foreclosure effects over the market
V. Conclusions | A. Legal Contingency • Fines are nothing but the tip of the iceberg , fines imposed to a firm with a small operation in one country can have negative consequences for the whole organization . An antitrust investigation generates the following consequences. • Lawsuit. • Compensation of damages. • Reputational damage. • Stock value in international and local markets. • Administration distraction – inefficient resource allocation
V. Conclusions | B. International perspective of the application of Competition Laws • A globalized economy has lead Companies to establish their business around the globe in different jurisdictions. • Nowadays most countries have Competition Law legislations. On 2010, 115 jurisdictions in 110 countries will have merger review legislations. • Competition authorities have signed bilateral and multilateral cooperation and positive comity agreements, and International treaties in the E.U, CAN and Mercosur including antitrust legislation. • The coordination and fellowship between competition agencies has reached a level, in which they can coordinate simultaneous international dawn raids, to firms.
V. Conclusions | B. International perspective of the application of Competition Laws • Competition authorities often meet in forums and organizations such as OCDE and ICN, in order to exchange information, review their proceedings and homologate their methods. • Competition law legislations around the world are quite similar, and so is the economic basis for its interpretation and enforcement by agencies. • Due to globalization, firms involved in certain industries have their business in several countries, with similar business practices, which can lead to multijurisdictional investigations. • Leniency programs increase the risk of antitrust investigations, and the risk of a fine eventually being imposed.
V. Conclusions | B. International perspective of the application of Competition Laws • The globalized world and the trend for international competition law enforcement, make the establishment of an absolute competition law observance policy and zero tolerance for anticompetitive practices, necessary for national and international firms. • Latin American Competition Authorities show increased progress and development of their own doctrines and case lines. There are important cases and higher fines. • Competition policy is now well positioned as an important value for society and companies are more aware of the importance of being compliant.
V. Conclusions | B. International perspective of the application of Competition Laws LATIN AMERICAN COMPETITION LAW AND ENFORCEMENT HAVE EARNED RESPECT AND IMPORTANCE. COMPETITION IS NOW AN IMPORTANT VALUE FOR LATIN AMERICAN ECONOMIES