Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The FNE must investigate all valid complaints. It may initiate an investigation ex officio, and undertake sectoral investigations of particular markets. No special regulations govern FNE investigations. General rules for administrative processes are set out in the Administrative Procedure Act and the General Basis for Fiscal Administration Act. The FNE also applies an internal manual of procedural …

Complaints and investigations

The FNE must investigate all valid complaints. It may initiate an investigation ex officio, and undertake sectoral investigations of particular markets. No special regulations govern FNE investigations. General rules for administrative processes are set out in the Administrative Procedure Act and the General Basis for Fiscal Administration Act. The FNE also applies an internal manual of procedural guidelines.

In its investigations, the FNE has the power to compel the production of documents and the cooperation of public agencies, state-owned entities, private firms and individuals, and the power to request information from any Government agency. It can summon witnesses to testify, including the defendant's representatives, managers and advisors or anyone with potential knowledge of an infringement. It can inspect the premises of the investigated businesses on a voluntary basis. The 2009 Law now gives it stronger powers of investigation, such as dawn raids and wiretapping. These require authorization from the TDLC and an order from a judge of the Court of Appeals.

When the FNE initiates an investigation it must provide notice to the target, unless the TDLC waives this requirement. Upon notice to the Chair of the TDLC, the FNE may declare an investigation confidential. This happens generally when notice may jeopardize the investigation.

Confidentiality protection for information obtained during an FNE investigation is guaranteed in the Competition Act. The Competition Act requires that FNE's professionals keep confidential the information obtained in their official capacity (Section 42).

The results of an FNE investigation may be a filed report, which is an administrative decision, or a report to the TDLC in a proceeding (either adversarial or non-adversarial) in which the TDLC asks for the FNE's opinion, or an ex officio charge or complaint (requerimiento) seeking a fine or other remedy. All of the above are matters of public record.

An “adversarial” proceeding before the TDLC begins with a charge by the FNE or a complaint by a private party. A complaint must be answered within 15 working days; that deadline can be extended to 30 days. The TDLC will then summon the parties for conciliation. If conciliation fails, there is a 20-day “discovery” period. In the first five days of this period, interested parties may designate witnesses to testify. Other forms of evidence may be submitted throughout the period. Testimony is heard by a single judge, in sessions that are typically one half-day per week and per judge. Thus, despite the 20-day limitation, it may take several weeks to hear all the testimony. The testimony is transcribed and becomes part of the record of the case, together with the parties' documentary submissions and any evidence that the TDLC may directly request. At the end of the discovery period, the judge will convene the parties for a hearing. This hearing consists of oral argument by counsel for the parties. The TDLC then issues a decision. The target for decision is 45 days, but this time-limit may be extended.

A “consultative” or non-adversarial procedure before the TDLC is a way to determine the legality of contracts or practices. It can be initiated by private parties or by the FNE. A public notice in the Official Gazette invites participation of interested parties and others potentially interested in the competitive conditions of the relevant market. The TDLC will then hold a public hearing before reaching a decision. In a consultative proceeding, the TDLC may issue a mandatory order imposing conditions.

Proceedings before the TDLC

Pursuant to Section 25, “the Tribunal may, at any stage of the trial or prior its commencement, decree all precautionary measures needed to avoid the negative effects of the conduct subject of the complaint and to safeguard the common interest, for the time deemed necessary”.

The measures taken are of a provisional nature and may be modified or set aside at any stage in the case. In order to resolve them, the petitioner must provide background information that at least constitutes a serious presumption of the right claimed or of the facts complained of.

The resolution that grants or denies interim relief must be served by post by means of a certified letter. Where the measure is ordered pre-judicially, the prosecutor or the petitioner must file the formal complaint or the demand within a period of twenty working days from the notification of the measure; otherwise, the measure ceases to have effect.

However, the measures may be enforced without prior service on the person against whom they are directed, provided that there are serious reasons for doing so, and that the Tribunal so decrees. In this case, if five days have elapsed without the service being performed, the proceedings carried out will be void. The Tribunal may extend this time-limit for justified reasons.

Interim relief

Damages caused by a violation of the Competition Act could be recovered through a suit filed in a lower District Court, but only after a decision by the TDLC finding the violation. Since the 30 August 2016 amendments, the action must be lodged directly before the TDLC and will be carried out under the summary procedure set forth in Book III, Title XI, of the Code of Civil Procedure. The resolution adopted under this procedure will be open for appeal before the Court of Appeals. However the final decision of the TDLC finding the infringement may be appealed only before the Supreme Court. Compensation awarded will cover any damage caused during the infringement period.

Global Competition Law

894. Complaints and investigations

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Les notions juridiques connexes

894. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise