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 2003 Competition Act eliminated criminal prosecution while increasing the maximum administrative fine substantially. The 30 August 2016 amendments brought back criminal sanctions for violations of the cartel prohibition set forth in Section 3(a) of the Act and especially prison time, from three to ten years (Section 62). Under Section 62(4), in the event alternative penalties are imposed, the  …

Fines

In adversarial cases, the TDLC can impose behavioral or structural orders. Orders can amend or eliminate anticompetitive acts, contracts, agreements, schemes or arrangements in violation of the Competition Act. The TDLC can also order divestiture or dissolution of partnerships, corporations or business companies whose existence rests on the implementation of anticompetitive arrangements.

Cease and desist orders

The 2003 Competition Act eliminated criminal prosecution while increasing the maximum administrative fine substantially. The 30 August 2016 amendments brought back criminal sanctions for violations of the cartel prohibition set forth in Section 3(a) of the Act and especially prison time, from three to ten years (Section 62). Under Section 62(4), in the event alternative penalties are imposed, the offender will nonetheless have to serve a minimum one year imprisonment.

The amendments also significantly raised the level of the administrative fines incurred. Under Section 26(c), the amount of the fine may reach 30% of the turnover acquired through the sale of products or services related to the infringement during the  period concerned or twice the profit made due to the infringement. In the event that the above-mentioned turnover or profit are unable to be determined, the Tribunal can impose a fine of up to 60,000 tax units (approximately US$ 50 million), which doubles the US$ 25 million cap previously applicable. For the assessment of the level of the fine, the Tribunal will take into account the economic benefit obtained through the infringement, the seriousness of the behavior at issue, the deterrent effect of the fine, the existence of a repeat infringement within ten years of a previous conviction, the ability to pay the fine and the cooperation with the FNE before or during the investigation. 

In August 2019, the FNE published its Internal Fining Guidelines which outline its approach to the determination of the amount of the fines it requests from the Tribunal as a representative of the general interest in competition proceedings. 

Furthermore, the Tribunal may also impose on undertakings in breach of Section 3(a) of the Act a prohibition on contracting with organs of centralized or decentralized administration of the State, with autonomous agencies or with institutions, agencies, companies or services in which the State makes contributions, with the National Congress and the Judiciary, as well as on the award of any concession granted by the State, for a period of five years from the time of the final judgment. The Tribunal may also impose on the infringing individual an absolute seven-year disqualification from holding a position of director or manager of a public limited company or of director or manager of companies of the State or in which he has a participation or the position of director or manager of a trade union or professional association (Section 62).

Law No. 21,595 regarding Economic Crimes was enacted in August 2023. It enables tougher prosecution of white-collar crimes.  According to this law, individuals and corporate entities engaged in collusion, insider trading, or corruption face harsher penalties.

The Competition Act provides for an anticipated reduction of administrative fines or full immunity from antitrust prosecution in exchange for collaboration in cartel investigation and detection.

Under the legislation adopted in 2009, the first party in a cartel to come forward with information about it may obtain total immunity, provided that the information is precise and truthful, subject to verification and sufficient to back FNE's claim or requerimiento. In addition, the party must refrain from disclosing any information until the FNE files its claim before the TDLC or dismisses the case altogether, and it must refrain from engaging in the agreement any further, unless the FNE deems such involvement is necessary for attaining the objectives of the investigation. Other members of the cartel may receive a reduction of up to 50% of the fine if they cooperate with the FNE by providing new information useful for the prosecution. Sections 39bis and 63 introduced by the 30 August 2016 amendments extend the benefit of leniency to the criminal conduct under Section 3(a). The applicant will have to comply with the aforementioned requirements. Only the second member of the cartel to provide futher information bringing added-value will qualify for a fine reduction of up to 50% of the amount incurred. In addition, that person will not have to comply with the requirement set forth in Section 62(4) of a mandatory one-year prison sentence.

The FNE updated its Guidelines on Leniency in Cartel Cases taking account of the 2016 amendments in March 2017. The Leniency Plus scheme introduced by the 2017 Guidelines grants persons other than the first two applicants leniency where they report the existence of a second act of collusion to the FNE, which is different from the one under investigation. In this case, if the applicant fulfills the requirements to obtain a reduction with respect to the first conduct, and the requirements to obtain the exemption benefit with respect to the second conduct, the FNE will grant the maximum permitted reduction with respect to the first collusive conduct and the exemption benefit with respect to the second conduct.

Global Competition Law

899. Fines

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Les notions juridiques connexes

899. Fines

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