Inventory of Domestic Laws and Regulations Relating to
Competition Policy in the Western Hemisphere
Submitted by the OAS Trade Unit to the FTAA Working Group on Competition Policies
XI. Judicial Procedures
Actions to impose the penalties stated in article 42, cannot be carried out before the corresponding judicial body, without having previously conducted the administrative proceedings regulated in Chapter II, Section II. (Article 32).
The initiation of a criminal action for violation of article 41 and for the cases stated in articles 28 and 29 is exclusively up to the Secretariat of State for Commerce and International Economic Negotiations. (Article 33).
Depending on where the crime was committed it will be the Judges for Criminal and Economic Matters from the Capital Federal or Federal Judges from the interior of the Country who will have the authority to sit in the judicial proceedings related to the crimes mentioned in article 33. (Article 34).
The administrative proceedings discontinue the term for the criminal case to fall under the statute of limitation, which will be of six (6) years. The term will start to count again, eighteen (18) months after the proceedings were initiated. (Article 35).
Once the Secretary of State for Commerce and International Economic Negotiations has referred the proceedings to the corresponding judge, the latter will proceed in accordance with the plenary procedural stated in theProcedure Code for Criminal Matters. (Article 36).
Both the Secretariat of State for Commerce and International Economic Negotiations, as well as the persons damaged, may become the complainants. (Article 37).
Once the accusation is made, the judge may impose protective custody of the defendant and adopt precautionary measures over his or her assets. (Article 38).
Both, those measures stated in the previous article, as well as the final opinions passed will be communicated to the National Commission for the Defense of Competition for the purposes stated in article 15. (Article 39).
No matter what decisions are adopted in the judicial level stated in this chapter, they shall not affect the firm resolutions adopted at the earlier administrative level. (Article 40).
Those established in the common system.
Judicial Proceedings may be civil or criminal.
The decisions of the CADE, while not subject to review in the Executive branch, may be reviewed by the Judiciary.
- Decisions of the plenary of the CADE imposing fines or imposing an obligation to do or not to do a given act, constitute prima facie evidence.
Where the sole purpose of execution is to collect a monetary fine, it shall proceed pursuant to the provisions of Law 6,830 of September 22, 1980.
Where the purpose of the execution is not only collecting fines, but also entailing an obligation to act or not act, the Judge shall grant the specific oversight of the obligation, or shall determine measures that assure the practical result equivalent to that of payment.
Execution shall be by all means, including by intervention in the firm, when necessary.
The execution of the decisions of the CADE shall be sought in the Federal Courts in the domicile of the person against whom they are executed.
In view of the gravity of the infraction of the economic order, and having set forth the grounds of irreparable damage, or damage for which reparation is difficult, even if there has been a deposit of the fines and a bond has been put up, the Judge may immediately adopt, in full or in part, the measures stemming from the decision of the plenary.
The process of executing the decisions of the CADE will have preference over all other types of action, except habeas corpus and the mandato de segurança.
- In addition to the review of the decisions of the CADE, and to judicial execution of these decisions, actions may be brought for civil liability for damages caused to the economic order, regulated by Law No. 7,347 of July 24, 1985, as amended by the single paragraph of article 88 of Law 8,884 of June 11, 1994. The law includes a provision whereby the persons damaged may sue for compensation for losses and damages, in civil court. Said compensation, in addition to the fines paid administratively in the ambit of defending the economic order, also includes resources to be collected by the Fund for the Defense of Diffuse Rights (FDD), whose Managing Council is situated in the SDE/MJ; it is presided over the by secretary and vice-chairman or chairman of the CADE.
In the criminal sphere, the definition and prosecution of crimes against the economic order is regulated by Law 8,137 of December 27, 1990, which is under the competence of the Attorney General's Office.
After the appeal to the Superintendent or Deputy Superintendent has been exhausted, there is recourse to the Administrative Court, by filing an appeal to nullify the action and re-establish the right (Articles 84 and 85 of the Administrative Code)
Suit for nullification and re-establishment of right. Any person who considers that a right under law has been infringed upon may request that the administrative act be nullified and his or her right re-established, and may also request damages. (Article 85 ibid).
After exhaustion of the administrative procedures, the final decisions can be appealed on grounds of illegality with the Administrative Tribunal, by means of an abbreviated administrative procedure. (Article 61).
The Law establishes the following procedure:
a. The Superior Administrative Tribunal, second section, shall be the body competent to hear the complaint;
b. Action must be brought within one month, from the date of notification of the final decision;
c. The submission to the Tribunal must be accompanied by a certified copy of the final decision that is being appealed;
d. The administrative inquiry report must be submitted within five days, under penalty of judicial sanction;
e. A period of ten days shall be allowed for formalizing complaints and answers thereto;
f. Prior defences may be invoked in the statement of answer to the complaint;
g. A period of ten days shall be allowed for the consideration of evidence, which must be submitted with the statement of answer to complaint;
h. Decisions of the Administrative Tribunal, Second Section, may be appealed to the Third Section of the Superior Administrative Tribunal, (Article 62 of the Law).
The Law establishes the following rules to be observed in the execution of rulings:
a. If the legal judgment requires the State to pay injury or damages, it shall be executed in accordance with Articles 76 ff. of the Regulatory Law.
b. If the legal judgment requires injury or damages to be paid by private parties, it shall be executed in accordance with the Code of Civil Procedure, and in particular, with the provisions of Articles 692 ff of that Code.
(Article 63 of the Law).
Before the Preventive Commissions. Issues within their purview could be queries from private parties concerning acts or contracts, such as complaints of acts or abuses that restrict trade.
There is no predetermined procedure in law for matters before these commissions, because their preventive nature and lack of punitive authority make it unnecessary to have guarantees of a rigid procedure. In any case, the parties involved in the investigation may be heard by the commissions and present written observations. (Article 8).
Resolutory Commission (Article 18 of Decree Law 211). As a jurisdictional organ, it must ensure the proper application of Decree Law No. 211, correcting and punishing acts and abuses in restraint of competition that come to its attention. In the exercise of this authority, contained in Article 17.a, the following procedure applies:
Cases may be filed on its own initiative or at the request of the prosecutor, and the Resolutory Commission notifies the parties of the case or suit.
After the period for discussion, the Commission opens an evidentiary period of 10 days, in which all evidence admitted by the law may be introduced. If witnesses are to be presented, the list of their names must be filed by the second day of the evidentiary period. Each party may present only four witnesses. If a personal visit is appropriate, it shall be carried out by the member designated for that purpose by the Commission. Evidence submitted during the evidentiary period shall be weighed from the standpoint of reasonableness or veracity; the legislator lists the evidence, and the judge weighs it in accordance with logic, common sense, and the standards of experience.
The report of the case consists of the summary and the pleas of the parties. The summary consists of the annotated, methodical analysis presented by the rapporteur to the Commission members concerning the case, without prejudice to any examination that the members may deem necessary to conduct by themselves. The pleas are the oral arguments of the lawyers. When the report is finished, the Commission shall issue its decision. The decision, based on its own judgment, must be rendered within 45 days of the start of the proceeding. (Article 18).
Before the regular courts. Criminal cases arising from application of Decree Law No. 211 start with a complaint or suit from the National Economic Prosecutor, upon recommendation of the Resolutory Commission.
The proceeding shall begin before a Minister of the respective Court of Appeals, who shall act as a one-person court and rule on the basis of his own judgment.
The case shall not last longer than 60 days (extendable for another 30), and the National Prosecutor has the right to be aware of actions taken in its course.
Criminal proceedings for crimes punishable under Decree Law No. 211 are subject to ordinary procedures for crimes or misdemeanors as established in the Criminal Procedure Code (Articles 31 to 37).
The usual court criminal procedures.
In civil cases, proceedings are initiated at the request of the interested party, which must provide the corresponding evidence to substantiate the proceedings in accordance with Guatemalan civil procedures
In criminal cases, proceedings are initiated by formal complaint or charge, and the Public Prosecutor is responsible for providing evidence, in accordance with Guatemala=s criminal procedures.
The Fair Trading Commission is a law enforcement agency, in practical terms, this means that the Commission is not the adjudicator of individual disputes but rather it seeks to address matters of national interest.
A complaint is received by the Commission and is investigated or an investigation may be initiated internally. If the investigation reveals to the Commission's staff that a breach of the Fair Competition Act has occurred, then the staff will usually recommend certain remedial action to the Company in an effort to resolve the matter in a non-adversarial manner. If, however, the company is reluctant to cooperate with the Commission's staff, it is served with a Notice of Examination to appear before the Commissioners. Acting in their quasi-judicial capacity, the Commissioners will meet with the company to determine the cause of the lack of cooperation and inform the company of the Commission's expectations with a view to settling the matter. If settlement seems unlikely the Commission's staff requests the Commissioners' approval to take the matter to Court so that the matter may be adjudicated.
Not all matters are handled in the first instance by the court. Breaches of section 20 (abuse of dominance) and section 33 (market restriction, tied selling and exclusive dealing) of the Act are determined firstly by the Commissioners who sit as judges at a public hearing and make findings based on the evidence presented by both sides. Should the Commissioners find in the Commission's staff's favor, they may issue any directions to the company they deem appropriate to correct the breach.
Proceedings before the Commission may be started on its own initiative or as a result of a complaint from an interested party. (Article 30).
In performing its duties, the Commission may request information and relevant documents needed for its investigations, and shall have the power to summon the parties involved to give evidence before it.
All information and documents obtained by the Commission in the course of its investigations or provided to it by outside sources shall be held in strictest confidence. Civil servants who disclose such information shall be held accountable except where responding to an order from a competent higher authority. (Article 31).
A written complaint alleging a violation of this Act may be submitted to the Commission by any person, in the case of per se anticompetitive practices, or by adversely affected parties, in the case of "relative" anticompetitive practices or concentrations. The complaint must specify the alleged violator and the nature of the practice or concentration complained of.
With respect to "relative" anticompetitive practices and concentrations, the complainant must include the relevant details of the practice or concentration and evidence of substantial past or potential harm from the practice or concentration.
The Commission may reject any complaint that is clearly legally insufficient. (Article 32).
Proceedings before the Commission shall be conducted as follows:
I. The alleged violator shall be given notice of the investigation along with a copy of the complaint, where applicable; II. The alleged violator shall have 30 calendar days thereafter to submit a response, along with relevant documents or other evidence; III. Within 30 days of submission of this evidence, oral or written arguments shall be out and presented to the Commission; IV. When these proceedings have been completed, the Commission shall issue its ruling within 60 calendar days.
All such proceedings must conform to the provisions of the regulations issued pursuant to this Act. (Article 33).
B. Judicial Proceedings
Three (3) civil division [circuit] courts are hereby created in the First Judicial District of Panama, which shall be known as the Eighth, Ninth and Tenth Courts of the First Judicial Circuit of [Panama], and one circuit court in Colón. In addition, a civil division circuit [court] is hereby established in Coclé, Chiriquí and Los Santos, [which] shall be known as the Second Court of Coclé, the Fourth Court of Chiriquí, and the Second [Court] of Los Santos, respectively, to hear these cases [in] their respective judicial districts. These courts shall take cognizance exclusively (illegible) of the following cases:
a. Individual or collective claims filed in accordance herewith;
b. Disputes which arise by virtue of the application or interpretation of this Law and involving monopolies, consumer protection, and unfair trade practices;
c. Disputes concerning intellectual property, including, among others, those involving copyrights and related rights, product or service brands and patents;
d. Disputes concerning agency, representation and distribution relationships.
e. Disputes concerning unfair trade practices;
f. Actions seeking compensation for collective damages, the return of things to their condition prior to the damage, and the monetary recovery of damages caused generally to the group concerned;
g. To authorize the Commission to collect evidence, examine the private documents of businesses, search premises and take any other measure requested during the course of an administrative investigation or for the taking of testimony;
h. To impose penalties for violations of the provisions hereof and to order the cessation of violations;
i. To order the precautionary measures requested by the Commission or Bindividual petitioners.
Proceedings instituted in the rest of the national territory in accordance herewith shall be heard by the respective circuit court responsible for civil matters.
When the goods or communications subject of the complaint have circulated in whole or in part within the district of the First Judicial Circuit of Panama, the courts created hereby shall be competent to take hear, at the election of the petitioner, together with the corresponding court, any of the above cases.
Cases exclusively assigned to the Commission are excepted.
Until the courts referred to in this article are established, the respective circuit courts shall hear the corresponding cases.
Two (2) municipal courts are hereby created in Panama City and one (1) in the city of Colón, which shall solely and exclusively hear consumer petitions involving amounts no greater than three thousand balboas (B/. 3,000.00).
For these purposes, the procedure established in the Judicial Code for regular proceedings involving small amounts shall be followed.
Until the courts referred to herein are established, the respective municipal courts of the provincial capitals shall hear the corresponding cases.
The following shall have the capacity to file a claim:
a. Any concerned person;
b. The Commission;
c. Organized consumer associations;
d. Collective management entities.
In each specific case, the judge shall rule on the admissibility of the capacity cited, considering, as a matter of priority, compliance with the following requirements:
a. That the group is made up of parties who have been specifically harmed by the act or omission prejudicial to the collective interest, in which case proof of the legal capacity of the group shall be furnished within thirty (30) days, counting from the date of the decision authorizing it to proceed;
b. That the group, pursuant to law, and as its express purposes, provides for the defense of the specific type or nature of the collective interest harmed;
c. That the group is territorially linked to the place where the situation harmful to the collective interest arose;
d. That the number of members, the length of time in their positions, their activities and the programs they have carried out and any other circumstances reflect the seriousness and responsibility of the group's actions in defending the collective interest. (Article 142)
The procedure may be initiated on its own initiative by the Technical Secretariat or at the request of a third party. Actions against infractions of Legislative Decree 701 shall prescribe after five years of the date of the infractions.
The Secretariat, if it believes there are reasonable signs of violation of Legislative Decree 701, shall notify the party presumed responsible for the investigated actions and inform it of the facts attributed to it. Replies to the charges must be submitted within 15 working days, and any evidence deemed necessary may be offered; other parties with a legitimate interest may become a party to the proceedings during this period.
Within the reply period, the accused party or parties may offer a commitment to cease or modify the investigated events. This proposal is evaluated by the Secretariat and, if deemed appropriate, submitted to the Commission with proposed relevant measures to guarantee fulfillment of the commitment. The Free Competition Commission shall approve or reject the proposal. Upon expiration of the accusation reply period, the evidentiary period begins, which consists of 30 working days. Upon expiration of the evidentiary period, the Technical Secretariat issues a report on the amount demanded in the accusation and suggesting any measures and sanctions to be adopted.
After receipt of the Secretariat's report, the Free Competition Commission shall have 5 working days to issue its ruling. The Commission=s decisions are appealable to the Competition Protection Division of the Competition and Intellectual Property Protection Tribunal.
Said Tribunal's rulings may be challenged judicially (administrative law) before the Civil Division of the Supreme Court of Justice. This Division=s decision may in turn be appealed to the Constitutional and Social Law Division of the Supreme Court.
The antitrust laws are enforced principally through proceedings brought in the federal courts. The FTC conducts its own administrative proceedings to adjudicate violations of the antitrust laws; but in those cases as well, the FTC must go before the courts to obtain preliminary injunctive relief or to enforce violations of its remedial orders.
For federal criminal prosecutions, standard criminal procedures -- including the grand jury and use of immunized testimony -- are used by the DOJ. In DOJ criminal prosecutions, defendants may request a jury trial; in DOJ civil proceedings, ordinary rules of civil procedure apply, but defendants are not entitled to a jury trial.
Proceedings shall be initiated at the request of a concerned party or at the initiative of the Office.
The initiation of proceedings may be ordered only by the Superintendent.
Whenever it appears that the rules provided for in this Law may have been violated, the Superintendent will order the opening of the corresponding proceeding, and shall initiate through the Tribunal the investigation of the case when appropriate. (Article 32).
In granting the authorizations provided for in this Law, and for the resolution of other matters for which a special procedure has not been established, the regular procedure provided for in the Organic Law on Administrative Proceedings shall be followed. (Article 42).
The Tribunal shall perform the necessary investigation to clarify the facts and determine responsibility.
In the exercise of its powers, the Tribunal shall have the broadest investigative and supervisory powers, and in particular the following powers: 1. To summon any person to appear to testify on pertinent matters related to the alleged violation; 2. To require any person to present any documents or information that may be related to the alleged violation; 3. During the investigation, to examine ledgers and documents; and 4. To subpoena any person, through the national press, to appear who may be able to furnish information with respect to the alleged violation. (Article 34).
During the hearing of the case file, and before its decision is handed down, the office of the Superintendent may adopt the following preventive measures: 1. It may order the alleged prohibited practice to cease; and 2. Dictate measures to avoid damages that may result from the alleged prohibited practice. (Article 35).