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
IX. Enforcement: Structure
The National Commission for the Defense of Competition will be made up by one (1) president, and four (4) members, appointed by the Minister of the Economy. The President will be one of the Under Secretaries of the Secretariat of State for Commerce and International Economic Negotiations. The members will serve for a four (4) year term, and can be reappointed. (Article 7).
Two of the members of the National Commission for the Defense of Competition will be lawyers and two professionals in Economics, with a well known expertise in matters proper of this law. They will be thirty (30) years old or more, and with four (4) years practice. They will have a compensation equal to that of national trial judges and will be subject to the provisions of the Basic Legal Regime for Public Servants, with the exceptions of that stated by this law. (Article 8).
The organizational structure of the SDE is as follows:
1.Office of the Secretary, consisting of three Coordinating Offices:
-Coordinating Office for Legal Affairs - which prepares legal opinions on matters to be submitted to the Secretary;
-Coordinating Office for Administrative Affairs - coordinates the Secretariat's financial and administrative affairs.
-Coordinating Office for Interagency Liaison - handles relations between the Secretariat and other government agencies, the Congress, and international bodies.
2. Department of Economic Protection and Defense, responsible for enforcing Law No. 8,884/94 (Law on Protection of Competition). This department consists of: a) General Coordinating Office for Legal Affairs; b) General Coordinating Office for Market Intervention; c) General Coordinating Office for Prohibited Practices.
3. The Department of Consumer Protection and Defense, responsible for enforcing Law No. 8,078/90 (Consumer Protection Code) is structured as follows: a) General Coordinating Office for Legal Affairs; b) General Coordinating Office for Inspection and Oversight; c) General Coordinating Office for Consumer Relations
4. The Office of the Inspector General, which performs the preliminary analysis of cases to be submitted to the departments of economic protection and defense and consumer protection and defense, and which has five regional inspectorates, is responsible for coordinating the affairs of the Economic Law Secretariat in the states.
The CADE is structured as follows:
A Plenary Council, composed of six councilmen and one chairperson;
An Office of the Prosecutor, chiefed by an attorney general.
The Superintendency of Industry and Commerce has the following structure for purposes of application of the rules on free competition and restrictive trade practices:
The Superintendent of Industry and Commerce is freely appointed and removed by the President.
The Advisory Council for promotion of competition, composed of five experts in business, economic, or legal matters, freely appointed and removed by the President.
The Deputy Superintendent for promotion of competition, freely appointed and removed by the President.
A Division for Promotion of Competition.
The Commission is composed of five members and five alternates, named by the President upon nomination by the Minister of Economy, Industry, and Commerce. As provided in the law, the Commission members shall be prominent persons with extensive experience in the field, recognized judgment, and independent.
Of the five members, four must be a lawyer, an economist, and two professionals with a university degree in sciences in fields related to the Commission's activities. The fifth may be freely chosen by the President.
The alternates shall serve in place of the members in the event of their temporary absence, impediment, or recusal. Both members and alternates may attend the meetings, but only the members may vote.
Members and alternates shall remain in office for four years and may be reappointed any number of times. However, during the first term, two of the five members will cease to serve after two years, chosen by lot. On that date two new persons shall be named for four years. The other three persons shall remain in their positions until the expiration of the period for which they were appointed. (Article 19).
The Chairman is elected by the members of the Commission from among them, by majority vote. He or she shall remain in that position for two years and may be re-elected. The Chairman's duties are set forth in Article 78 of the Regulations. A Secretary shall also be elected, who may be a member of the Commission or not, and whose powers shall be those established in Article 79 of the Regulations.
The Commission shall meet in closed session, but it may allow access by the general public as it sees fit. The Commission normally meets at least once every two weeks, without need for a special call. A quorum consists of four appointed members, and decisions should be taken by a vote of at least three of them. (Articles 22, 81 and 83 of the Regulations).
Except in emergency cases, a special session of the Commission must always be convened with advance notice of at least twenty-four hours, in writing, accompanied by the agenda for the meeting. Notwithstanding, the Commission shall be deemed in valid session without having fulfilled all requirements relating to advance notice and the agenda, if all of its members are present and are unanimously agreed. (Article 81 of the Regulations).
The Commission shall have a Technical Support Unit staffed by professional experts in the areas governed by the Law. The work of this body shall be devoted full-time to competition matters, and it shall conduct such studies and investigations as the Commission may request within its mandate. The Head and the Legal Advisor of the Technical Unit shall be entitled to attend sessions of the Commission, with the right to speak but not to vote. (Articles 23 and 83 of the Regulations).
The Law provides that the Commission may contract the services of advisors and consultants in the performance of its functions. (Article 23 of the Regulations).
The National Economic Prosecutor's Office is an independent public body, separate from any other administrative or government body, that reports to the Government through the Ministry of Economy, Development and Reconstruction. Its Head is the Fiscal Nacional Econůmico [National Economic Prosecutor], who is represented in the capital city of each region by an official with the title of Regional Prosecutor. The National Prosecutor is independent in the conduct of his duties from any authority or tribunal before which he must appear. He may therefore defend the interests entrusted to him in any manner he deems consistent with the law. (Articles 21, 22 and 23).
The Resolutory Commission, which has jurisdiction over the entire country, is a tribunal subject to specific procedures. This Commission is the only body that can impose the administrative and civil sanctions established by the Law, or ask the National Prosecutor to seek criminal sanctions, as appropriate. Its members are: a) One Minister of the Supreme Court, appointed by this Court, who will preside over it; b) One Head of the Service appointed by the Ministery of Economy, Development and Reconstruction; c) One Head of the Service appointed by the Minister for Treasury; d) One Dean of the Faculty of Juridical and Social Sciences of the University, Campus Santiago; and e) One Dean of a Faculty of Economic Sciences of a University, Campus Santiago. (Article 16).
The Central Preventive Commission is empowered to hear cases relating to practices or abuses of a national character, or that refer to more than one region, and acts as the Preventive Commission for the Metropolitan Region of Santiago. Its membership is the following:
a) A representative of the Ministry of Economy, Development and Reconstruction, who will preside over it; b) A representative of the Minister of Treasury; c) Two university professors, lawyer and commercial engineer, respectively, appointed by the Rector's Council; and d) A representative from Neighboring Juntas. The corresponding authorities and organizations shall appoint a representative in-office and another alternate, who shall remain two years in their offices. (Article 10).
The Regional Preventive Commission are agencies of the Government that operate in each region of the country, composed of the following persons: a) The Ministerial Regional Secretary of Economy, who will preside over it; b) A member appointed by the Regional Intendant; c) A university professional appointed by the Regional Development Council; d) A representative of the Neighboring Junta. (Article 7).
The Common Law Courts, both civil and criminal, are part of the Judiciary and fall under the responsibility of the Supreme Court.
The Fair Trading Commission is comprised of two distinct arms: the quasi-judicial arm represented by the four (4) appointed Commissioners, and the investigative arm or Commission's staff, headed by the Executive Director, who directs three lawyers, three economists, two research officers and a cost accountant.
(1) The Commission shall appoint and employ an Executive Director who shall hold office for a period of seven years and may be re-appointed for periods not exceeding five years at a time;
(2) The Executive Director shall be in charge of the day-to-day management of the Commission; (...)
(6) The Commission may appoint and employ at such remuneration and on such terms and conditions as it thinks fit, such other officers and employees as it thinks necessary for the proper carrying out of the provisions of the Act. (Section 15).
(1) The Commission shall consist of such number of persons not being less than three nor more than five as the Minister may from time to time appoint.
(2) The Executive Director shall be a member ex-oficio of the Commission. (Paragraph 1. Schedule of the Fair Competition Act).
(1) The members referred to in paragraph 1 shall be appointed by the Minister.
(2) A member other than the Executive Director shall, subject to the provisions of this Schedule, hold office for such period not exceeding three years.
(3) The Minister shall appoint one of the members of the Commission to be chairman thereof. (Paragraph 2. Schedule of the Fair Competition Act).
The Commission shall have five members, including the Chairman. It shall sit as an executive gody and reach decisions by majority vote, with the Chairman having the tie-breaking vote.
The Commission shall have the necessary staff for efficient handling of its tasks, in accordance with its budget allocation. (Article 25).
The commissioners will be appointed to ten-year terms of office which can be renewed and may only be removed for duly justified, grievous cause. (Article 27).
The Commission, en banc, is its highest decision-making body and consists of five commissioners, the Chairman included. The presence of three members shall suffice for a session, but the Commission shall not meet without the presence of either the Chairman or the member who, under the rules, is to act in his or her stead.
Decisions of the plenary shall be unanimous or by a majority of the commissioners present, who may only abstain when they have some legal impediment. The Chairman of the Commission shall preside over plenary sessions and, in the event of a tie, shall cast the deciding vote.
(Article 14 of the Internal Rules of the Federal Free Trade Commission).
The Chairman of the Commission shall be appointed by the head of the Federal Executive and will have the following authority: I. to coordinate the work of the Commission; II. to implement, execute and monitor the internal policies established for the Commission; III. to publish an annual report on the work of the Commission, including the results of their activities in defense of open competition and free access to markets; IV. to request from Mexican and foreign authorities information required to investigate possible violations of this Act; V. to act as the legal representative of the Commission; to appoint and remove personnel; to create the necessary technical units and administrative in accordance with the Commission=s budget, and to delegate duties to these units; and VI. to carry out such other duties as are conferred under the laws and regulations of Mexico. (Article 28).
The Commission shall have an Executive Secretary appointed by the Chairman, who will be responsible for administrative and operational coordination. The Executive Secretary shall certify all its acts. (Article 29).
The Commission shall have the following bodies with which to perform its functions and rule on matters within its purview: 1. the Plenary; 2. the Chairman; 3. the Executive Secretary; 4. the General Directorates of: (a) Judicial and Administrative Law Matters; (b) Economic Studies; (c) Concentrations; (d) Investigation; (e) Administration. (Article 8 of the Internal Rules and Regulations of the Federal Competition Commission).
The Commission shall have the following functions and powers:
1. To determine its general policies and ensure that they are carried out;
2. To create, in any part of the national territory, such administrative units as are necessary for its operation, including provincial offices, and to define the functions thereof;
3. To approve the general budget presented by the director general and to submit it for the consideration of the Executive.
4. To issue internal regulations;
5. To approve the advertising and consumer education program presented by the director general;
6. To authorize the conclusion of contracts and the execution of expenditure in amounts greater than twenty-five thousand balboas (B/.25,000.00);
7. To elect annually, from among its members, a chairman and a secretary;
8. To investigate and penalize, within its sphere of competence, such acts and behaviors as are prohibited by this Law;
9. To establish coordinating mechanisms for the protection of consumers and for the prevention of unfair trade practices and practices which hinder competition, as well as administrative penalties within its sphere of competence;
10. To issue opinions concerning laws, regulations, administrative acts and bills related to the subject matter of this Law;
11. To request documents, hear testimony and obtain other evidence from institutions, whether public or private, and from natural persons, within its sphere of competence.
12. To take cognizance of matters submitted for its consideration by economic agents and consumers;
13. To conduct studies on market behavior in order to identify distortions in the market economy system that affect consumers, and to encourage the elimination of such practices, whether by publicizing them or recommending legislative or administrative measures aimed at correcting them;
14. To conduct consumer awareness campaigns, which may be coordinated with consumer associations, business organizations, civic clubs and trade unions;
15. To supervise the activities of traveling commission sales agents and to penalize them for failure to comply with the legal provisions in force, and to determine the liability of commercial establishments for the actions of said agents;
16. To coordinate with the Executive, through the Ministry of Trade and Ind
stry, actions aimed at ensuring that technical standards are applied to all products and services offered to consumers;
17. To promote compliance with the rules on guarantees and advertising;
18. To take cognizance of complaints filed by consumers, whether individually or collectively, related to guarantees on the operation, repair or replacement of a product or the refund of amounts paid by the consumer, when said product does not work properly during the guarantee period, owing to a defect in the product or a cause attributable to the manufacturer, importer or supplier, provided that the value of the product is five hundred balboas (B/.500.00) or less.
Compliance with the decisions of the Commission in the cases listed above shall be mandatory, and the Commission, subject to the regulations in force, shall guarantee the right of appeal when necessary.
In cases where the value of a product exceeds five hundred balboas (B/.500.00), the consumer may either use the conciliation process referred to in Chapter II, Title VII, or make use of the judicial proceeding prescribed in Title VIII hereof;
19. To promote, regulate and supervise organized consumer associations;
20. To denounce to the competent health authorities the sale or distribution of articles that pose a threat or danger to health;
21. To take cognizance of the administrative proceedings referred to herein;
22. To supervise the proper use of the discount codes (claves de descuento) authorized by the Office of the Controller General of the Republic, the Social Security Fund and autonomous State entities. An exception to this provision shall be made for banks, cooperatives and financial enterprises governed by Law 20 of 1986, provided that they do not provide a discount subcode service (servicio de subclave de descuento). The Commission shall have the power to order State institutions to cancel the discount codes of suppliers or others who provide a discount subcode service and who fail to comply with the requirements of this Law;
23. The discretionary functions referred to in Article 236 and any others conferred on it by Law or the regulations issued for its furtherance.
In indigenous communities and reserved areas, the Commission shall take special steps to facilitate effective fulfillment of the supplier's obligations toward consumers.
The Competition Commission is composed of six members, including its President, who are appointed by the Chairman of the Board of Directors of INDECOPI.
The Commission has the following duties:
a) To resolve, in the first instance, proceedings initiated by the Technical Secretariat;
b) To adopt the necessary corrective measures;
c) To impose the corresponding sanctions;
d) To require individuals or firms to submit any documentation including books of account, receipts for payment, business correspondence and computerized records; and to seek information relating to the organization, business, shareholders and ownership structure of firms;
e) To summon persons material to the investigation or their representatives, employees, officers, advisors or third persons, by whatever means necessary, for questioning by designated officials;
f) To conduct inspections, with or without prior notice, on the premises of individuals and companies and to examine their books, records, documents and properties. During such inspection, it may take copies of physical and computerized files and records, and make photographs or films, as it sees fit. It may call upon police assistance in gaining entry, and may make forced entry to locked premises with a prior court warrant;
g) To authorize the Technical Secretariat to seize the documents of any person or firm under investigation, for a period of up to 2 working days, extendable by a further two days;
h) To bring criminal charges where it considers that the provisions of Legislative Decree 701 have been fraudulently violated and that the resulting injury is of serious consequence to the public interest;
i) To request police support as necessary in the performance of its duties.
The Secretariat has the following duties: a) To render opinions in cases involving violations of this law; b) To conduct inquiries and investigations on its own initiative or in response to a complaint, using the facilities and competence of the Commission on Free Competition as previously described in d), e) and f); c) In exceptional cases, and with prior consent of the Commission, it can seize for up to two working days, or up to two additional working days, the books, files, documents, correspondence, and general records of the person or firm investigated, making copies of same. In similar circumstances, it can remove them from the place where they are located for up to six working days, provided it has a court order to do so. The request to remove records must be justified and ruled upon within 24 hours by the judge of the first instance, without transfer to the other party; d) Prepare draft regulations and adopt directives; and e) Issue injunctions, ex-officio or at the initiative of parties involved with the procedure.
The Superintendency shall be administered by a Superintendent who shall be appointed by the President of the Republic. (Article 21).
The Superintendent will have an Assistant, appointed by the President of the Republic. Both will exercise their office for four (4) years, and they may be appointed to serve in future periods.
The Assistant shall assume Superintendent responsibilities during any absences. (Article 22).
Competition and Intellectual Property Protectional Tribunal (Competition Protection Division):
1. Hear appeals against decisions of the Free Competition Commission;
2. Rule on appeals regarding the adoption of corrective measures and the imposition of sanctions;
3. Recommend to the Chairman of INDECOPI such action as necessary before the competent authorities toward adoption of the legal or regulatory measures needed to ensure free competition;
4. Request police assistance to enforce its decisions.
Sectoral Bodies for Regulation of Competition.
There is only one state agency with sole powers to regulate free competition in public telecommunications services.