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: Powers or Functions
The National Commission for the Defense of Competition will have the powers to: a) Carry out studies relative to competition, structure and size of markets; b) Require from National, Provincial or Municipal authorities the information deemed necessary; c) Summon the presumed liable subjects and witnesses, take testimonies and perform confrontations; d) Perform the necessary expert inspectsion to analyze books, documents, trade papers, and other elements relevant to the survey, control inventories, verify sources and costs of raw materials and other goods; e) Request opinions and reports from persons or private entities about the investigated behaviors, existing practices in these matters, and other issues of interest related to the investigation; f) Hold hearings with the involvement of plaintiffs, complainants, presumed liable subjects, witnesses, and experts; g) Request the freezing of goods from the corresponding Judge; h) Decide, at any stage of the proceedings, as a preventive measure, that physical persons involved, be it directly or because of their involvement or cooperation in other acts committed by persons of an ideal existence, may not leave the country without the judge=s prior authorization. The decision might be appealed before the courts indicated in Article 27, giving the authorization relative to and only with a restitution effect.
The powers stated in paragraphs c), d), f), g) and h) of this article, may only be exercised when investigating events comprised in article 1. (Article 12).
The Office of the General Superintendent of the SRS has the following duties:
a) to consider and rule on appeals challenging decisions of the Sectoral Superintendents, sectoral legal provisions and procedural rules; b) to monitor and issue findings on the efficiency and effectiveness of the work of the Sectoral Superintendents, and exercise due control over persons or entities that undertake regulated activities under this law and the sectoral legal rules; c) to consider and rule on matters referred to it by the Sectoral Superintendents; it may not consider other matters on its own initiative or at the direct request of an interested party; d) to adopt the necessary administrative and disciplinary measures so the Sectoral Superintendents can carry out their duties pursuant to this law, the sectoral legal rules, and applicable general law, free from improper influence from any source. (Sectoral Regulation System Law, Article 7).
The plenary council of CADE (Administrative Council for Economic Defense) is to:
1. ensure the observance of Law 8,884/94 and its regulations, and of the By-laws of the Council;
2. decide on where there has been an infraction of the economic order, and apply the penalties provided for by law;
3. decide on the proceedings initiated by the Secretariat for Economic Law of the Ministry of Justice;
4. decide on the motions brought, sua sponte, by the Secretary of the SDE;
5. order measures aimed at bringing an end to the infraction against the economic order within the time period it determines;
6. approve the terms of the commitment to end the practice, or the commitment to perform, and to determine that the SDE should oversee compliance;
7. review, on appeal, the preventive measures adopted by the SDE or by the Counselor-Rapporteur;
8. Inform the interested parties of its decisions;
9. request information of any public or private person, organ, authority, and entity, respecting and maintaining legal secret when appropriate, as well as to determine the proceedings that may become necessary in the performance of its functions;
10. request of the organs of the federal executive, and of the authorities of the states, municipalities, federal district, and territories, the measures necessary to carry out this law;
11. oversee the administration of examinations, inspections, and studies, approving in each case procedural costs that must be paid by the company, if it should come to be penalized under the law;
12. review the acts or conduct, however manifested, subject to approval pursuant to Article 54, setting the commitment to comply when appropriate;
13. request that the judiciary enforce its decisions, in the terms of this law;
14. request services and personnel of any organ or entity of the federal government;
15. determine, in the case of the CADE counsel, the adoption of administrative and judicial measures;
16. sign contracts and agreements with national organs or entities, and submit beforehand to the Ministry of Justice those that should be entered into with foreign or international bodies;
17. respond to consultations on the subject matter of its competence;
18. instruct the public on ways in which one can commit an infraction against the economic order.
The SDE (Secretariat for Economic Law) has the competence to:
1. ensure compliance with the law, monitoring and studying market practices;
2. monitor, on an ongoing basis, the commercial activities and practices of physical or juridical persons who held a dominant position in the relevant market of goods or services to prevent infractions of the economic order, to which end it may request the necessary infractions and documents, maintaining legal secrecy, when appropriate;
3. proceed, when there are indications of an infraction of the economic order, to preliminary inquiries for bringing an administrative action;
4. decide that the indicia are not substantive, and so close the record in the preliminary inquiry;
5. request information from any persons, organs, authorities, and entities, public or private, maintaining legal secrecy when appropriate, and determine the procedures necessary for the performance of its duties;
6. bring an administrative action to investigate and punish infractions of the economic order;
7. recur sua sponte to the CADE when it decides to close a preliminary inquiry or administrative proceeding;
8. transmit to the CADE, for judgment, the proceedings that it initiates, when it understands a case has been made suggesting an infraction of the economic order;
9. enter into an agreement to cease, in the conditions it establishes, submitting it to the CADE, and overseeing its implementation;
10. suggest to the CADE conditions for entering into a commitment to comply, and oversee its implementation;
11. adopt preventive measures that lead to the cessation of the practice that constituted the infraction of the economic order, setting the deadline for its implementation and the amount of the daily fine to be imposed in case of continued non-compliance;
12. receive and investigate the cases to be judged by the CADE, including consultations, and oversee implementation of the decisions adopted by the CADE;
13. give guidance to the organs of the public administration regarding the adoption of measures necessary for carrying out the law;
14. undertake studies and research with a view to orienting the policy for prevention of infractions of the economic order;
15. instruct the public on the various ways of committing infractions against the economic order, and the ways to prevent and prosecute them;
16. examine beforehand consultations regarding acts that result in greater concentration.
The SEAE (Secretariat for Economic Monitoring) has the following competencies:
In the area of defending competition, and without prejudice to its other attributes under the Ministry of the Treasury:
1. to prepare technical opinions on transactions resulting in economic concentration and, at its discretion, in cases of abusive conduct it may issue an opinion on the matters in which it is specialized;
2. to verify the existence of indicia of the occurrence of an unjustified increase in prices, or imposition of excessive prices, and communicating its reasoned findings to the SDE/MJ, which will determine whether to initiate an administrative proceeding; and,
3. to request information of any person, organ, authority, or entity, public or private, maintaining legal secrecy when appropriate, so long as it is necessary for the performance of its duties.
The Director of Investigation and Research. The Director of Investigation and Research is an independent law enforcement official responsible for the administration and enforcement of the Act.
The Director directs the Competition Bureau, a federal agency responsible for assisting the Director with the enforcement and administration of the Act. He is appointed by, and serves at the pleasure of, Cabinet with a mandate to promote competition in Canada. In respect of criminal offenses, the Director may refer a case to the Attorney General of Canada for consideration as to what action the Attorney General may wish to take, including criminal charges in a court of criminal jurisdiction. In the case of civil reviewable matters, the Director may apply to the Competition Tribunal for remedial orders.The Director is required to commence an inquiry whenever he believes, on reasonable grounds, that an offence under Part VI or Vll of the Act has been or is about to be committed, that grounds exist for the Competition Tribunal to make an order relating to a reviewable matter under part VII of the Act, or that a person has contravened or failed to comply with an order made under the Act. The Director is also obliged to commence an inquiry when the Minister so directs, or when six Canadian residents make an application.
Under sections 125 and 126 of the Act, thc Director is authorized to make representations to, and call evidence before, federal and provincial boards, commissions or other tribunals. In addition, the Minister may direct that a representation shall be made by the Director before a federal regulatory board. In the case of provincial regulatory board, the Director may only make representations at the request or with the consent of the agency concerned.
As an advocate of competition, the Director also makes selected non-statutory representations to bodies such as government committees or task forces in cases where his particular expertise can bring a unique perspective to bear upon the issues.
The Minister of Industry. The Minister's primary responsibility, in relation to the Competition Act, is to cause the Annual Report prepared by the Director to be laid before Parliament. In addition, he has certain statutory powers to compel specific action by the Director: he may instruct the Director to undertake an inquiry, to provide an interim report with respect to an inquiry, or to make further inquiry where a matter has been discontinued. Conversely, the Minister has no power to compel the Director to discontinue an inquiry. Further, and most importantly, any decision to apply to the Tribunal or to refer a matter to the Attorney General is the Director's alone.
The Attorney General. The Attorney General of Canada is responsible for instituting and conducting criminal prosecutions under the Act. The Director may, at any stage of an inquiry, refer a matter to the Attorney General for prosecution or such other action as he may wish to take. The recommendations of the Director are historically given great weight by counsel for the Attorney General.
The Courts. As discussed above, competition law in Canada consists of both criminal offences and non-criminal reviewable matters. Criminal charges are prosecuted before the various courts of criminal jurisdiction in each province. The Federal Court of Canada, which includes the Trial Division and the Federal Court of Appeal, also has jurisdiction with regard to indictable offences.
The Competition Tribunal. Non-criminal reviewable matters (including merger matters) are initiated by the Director by filing an application before the Competition Tribunal, a quasi-judicial tribunal which operates at arms length of the Director. Whereas the Director's role is investigatory, the Tribunal's is exclusively adjudicative. It was created in 1986 with a view to developing special expertise in competition matters. The Tribunal consists of judges of the Federal Court, Trial Division, as well as lay members.
The duties of the Superintendent of Industry and Commerce, as the head of the agency, are the following: a) Ensure that the legal provisions concerning this agency are fulfilled and the efficient performance of the technical and administrative functions are executed; b) Ensure that the provisions on promotion of competition and restrictive business practices established by Law 155 of 1959, its complementary provisions and in particular those this Decree refers to are fulfilled by all persons engaged in an economic activity regardless of their form or legal nature pursuant to Article 2, numeral 1 of this Decree; c) As a preventive measure, order that any behaviors that may be contrary to the provisions the above numeral refers to are immediately ceased; d) Decide about the termination of investigations for presumed violations of the provisions that numeral 10 of this Article refers to, when in his judgement, the presumed infringer offers sufficient guaranties that the behavior for which he is being investigated will cease or be remedied; e) Order that infringers remedy or cease any behaviors contrary to the provisions on the promotion of competition and restrictive business practices which are the subject matter of this decree; f) Make pronouncements on the merger, consolidation, integration and acquisition of control of firms; g) Impose pecuniary sanctions of up to the equivalent of two thousand (2,000) minimum legal monthly wages effective when imposing the sanction for violation of the standards on the promotion of competition and restrictive business practices which are the subject matter of this decree; h) Impose fines upon managers, directors, legal
representatives, auditors, fiscal supervisors and other natural persons authorizing, executing or tolerating infringement behaviors of the standards on the promotion of competition and restrictive business practices this decree refers to, of up to three hundred (300) times the minimum legal monthly wages effective at the time the sanction is imposed, in favor of the National Treasury; i) Establish the general policies of the agency. (Article 4 of Decree 2153/92).
The functions of the Deputy Superintendent for promotion of competition:
a) Ensure compliance with current laws and rules, and propose new provisions; b) Officially conduct on his own or at the request of a third party preliminary inquiries about infringements to the provisions on the promotion of competition and restrictive business practices as provided for in numeral 10, Article 4 of this Decree; c) Decide whether the claims the above numeral refers to are or not in order; d) Undertake the preliminary inquiries and conduct investigations aimed at establishing the infringement of the provisions on promotion of competition and restrictive business practices this decree refers to; e) Keep a record of all investigations conducted and penalties imposed, as well as of any commitments made in furtherance of proceedings regarding the provisions on the promotion of competition and restrictive business practices; f) Decide remedies of appeal and petitions for direct annulment against any writs that may be issued. (Article 11, Decree No. 2153/92).
Duties of the Promotion of Competition Division. The Promotion of Competition Division shall: 1. Support the Delegate Superintendent for the Promotion of Competition int he processing of preliminary inquiries and obtention of evidence in cases concerning infringement of provisions on the promotion of competition and restrictive business practices; 2. Look after the claims filed by the public and in case during the process possible violations to the provisions on restrictive business practices of competition are detected, propose that the Delegate Superintendent for the promotion of competition file the corresponding proceedings when the behavior or practice is evident enough to deserve such proceedings; 3. Look after inquiries regarding its area of interest; 4. Process petitions concerning consolidation, integration or merger and acquisition of the control of firms, within the terms established by the law; 5. Prepare draft resolutions by which sanctions are imposed for violation of standards on restrictive business practices of free competition; 6. Substantiate all investigations conducted to determine whether the applicable standards have or not been met; 7. Obtain and keep relevant information concerning the different domestic and international markets, classified according to technical coding systems; 8. Conduct the necessary economic and technical studies to fulfill the duties of the Delegates for the Promotion of Competition; 9. Carry out all other functions that may be assigned to it inherent in the nature of this dependency. (Article 12, Decree 2153/92).
The law sets forth three fields of action for the Commission for Promotion of Competition: 1. economic deregulation; 2. recommendations for setting prices; 3. promotion of competition.
The Commission is responsible by Law for verifying that procedures and regulatory requirements governing trade are at all times consistent with the provisions of the Law, that they are essential and necessary to achieving its objectives, and that they are based on considerations of public health and safety, the environment or quality standards, as determined by ex post review, so as to ensure that the principle of due dispatch is respected, and that competition requirements and procedures do not become barriers to trade. (Article 3).
The Commission has full authority to verify compliance by state agencies and organs with the obligation to make a cost-benefit study of the regulations governing economic activities that affect trade, and procedures for guaranteeing free access of goods and services to the market. This is for the purpose of eliminating any unnecessary red tape in accordance with the study, or simplifying those procedures that must be maintained. It should be noted that the Commission is responsible for determining the criteria to be used as the basis for such cost-benefit analysis. (Article 4 and 24(a) of the Law).
The Commission may also recommend to the President the modification, simplification, or elimination of any requirement to register pharmaceutical, medical, food, agrochemical, and veterinary products, laboratories and establishments where these products can be produced or marketed, or replacement of the requirements with others that more effectively promote free competition and protect human, animal, and vegetable health, the environment, safety, and quality standards. (Article 4).
When the Commission considers it advisable, it can waive the requirement for total or partial participation by professionals or technicians in procedures for access to the national market of goods produced domestically or abroad, and other trade regulations. (Article 7).
The Government may regulate the prices of goods and services, but only under exceptional circumstances, and only on a temporary basis. The Commission advises the President on the desirability of setting prices under abnormal market conditions or conditions of monopoly or oligopoly affecting of goods and services. (Article 5 of the Law and Article 17 of the Regulations).
The decision of the Commission shall be limited exclusively to determining the presence of circumstances that justify the establishment or the elimination of the regulatory measure in question, (Article 17 of the Regulations).
Promotion of Competition
The Commission has the general duty to review, either at its own initiative or on the basis of a formal complaint, and where necessary penalize all practices that obstruct free competition or unnecessarily disrupt the market flow.
(Article 18 of the Law).
On its own initiative or at the request of the interested party, it monitors and controls participation in markets in which there are few suppliers. (Article 11).
The following authority is given:
a) to investigate the existence of monopolies, cartels, practices or collusion prohibited by law and apply penalties when appropriate. In carrying out this function the law gives the Commission authority to require private parties and other public and private economic agents to provide the pertinent information or documents;
b) to punish actions in restraint of supply of products when they have effects that disrupt free competition in the market;
c) to establish machinery for coordination to punish and prevent monopolies, cartels, concentrations, and illegal practices;
d) to issue opinions on questions of competition and free enterprise, with regard to laws, regulations, agreements, notices, and other administrative acts; such opinions have no legal authority.
A general duty is established for economic agents to give the Commission, as an affidavit, the reports and documents it requires to ensure the fulfillment of its tasks. Likewise, it is the Government's duty to give all information that the Commission requires to ensure the fulfillment of its tasks. (Article 64 of the Law and Article 33 of the Regulations).
According to Articles 17 and 24 of the Law, cases of unfair competition are solved by courts following summary procedures.
National Economic Prosecutor. Among its essential and continuing functions are the following:
a) To undertake investigations of anti-competitive and other prohibited forms of business practice, either on its own initiative or on the basis of complaints brought by the authorities or the public; b) To inform and advise the Resolutory and Preventive Commissions in the cases before them, and to ensure that their decisions are carried out; c) To coordinate the work of the Central and Regional Resolutory and Preventive Commissions, and the twelve Regional Prosecutor's offices and to represent the public economic interest before the Supreme Court and other Ordinary Courts of Justice; d) To defend or oppose decisions of the Resolutory Commission before the Supreme Court.
In the performance of his duties, the National Prosecutor has the following powers:
1. To order the investigations which he may deem appropriate so as to prosecute the infringements to the Decree Law No. 211, being able to rely on the General Board of Investigations to fulfill the commission; 2. To require from the Commissions the exercise of any of his powers; 3. To request from the Regional Preventive Commissions the adoption of preventive measures owing to investigations that the Prosecutor's office is carrying out; 4. To request the collaboration from any officer or State company; 5. To require from any of these officers or State companies to put at his disposal the antecedents he deems necessary for the investigations, accusations or charges he is carrying out, or in which he shall intervene; 6. To demand, by means of the corresponding officer, the examination of all the documentation and countable elements and others he deems necessary; 7. To request private individuals the informations and antecedents he deems necessary due to the investigations he carries out; 8. To practice the penal action, by him or by a representative when the Resolutory Commission so orders him. (Article 24).
Resolutory Commission. Resolutory Commission may address, at its own initiative or at the request of the Prosecutor's office, any situation that is deemed inimical to free competition, and may conduct such investigations and decide and impose such penalties as the Law provides. It is the only body within the system that is empowered to impose civil and administrative penalties. Moreover, the Resolutory Commission is the only body empowered to order criminal proceedings pursuant to Articles 31 ff. The Commission has direct supervisory authority over all its component bodies, except for the National Economic Prosecutor, and is in turn responsible to the Supreme Court with respect to its decisions, which in criminal cases can be appealed to that Court.
In carrying out its duties, the Resolutory Commission has the amplest powers to investigate, being able to request any individual antecedents, either directly or through the Economic National Prosecutor. For these purposes, the Resolutory Commission has the faculty to require the help of the public force, which will be granted by an order of the Commission.
The Resolutory Commission may also recommend that government agencies amend legal provisions or regulations that it deems a hindrance to free competition, and adopt its own specific guidelines to be followed in acts or contracts that could affect free competition. (Article 17).
Regional Preventive Commissions and Central Preventive Commission. The Preventive Commissions are not empowered to impose punishment or remedies in the case of anti-competitive behavior. Their function is to issue reports and to advise on measures to be taken by the parties involved, including the State authorities, to deal with anti-competitive situations.
To carry out their prevention function, the Commissions have the following powers, among others: 1. to issue opinions on existing or proposed contracts that could hamper free competition; 2. to work within their jurisdiction for maintenance of free competition and prevention of abuses of the dominant market position, proposing measures to correct practices or abuses of which they become aware; 3. to request the respective prosecutor's office to investigate such practices or abuses; 4. at the request of the prosecutor's office, to adopt preventive measures for the purpose of suspending the detrimental effect on competition caused by given acts or contracts.
The powers to administer justice are assigned to the different courts of Guatemala by national legislation.
(1) The functions of the Commission shall be: (a) to carry out, on its own initiative or at the request of any person such investigations in relation to the conduct of business in Jamaica as will enable it to determine whether, any enterprise is engaging in business practices in contravention of this Act and the extent of such practices; (b) to carry out such other investigations as may be requested by the Minister or as it may consider necessary or desirable in connection with matters falling within the provisions of this Act; (c) to advise the Minister on such matters relating to the operation of this Act, as it thinks fit or as may be requested by the Minister; (d) to investigate on its own initiative or at the request of any person adversely affected and take such action as it considers necessary with respect to the abuse of a dominant position by any en-terprise; and (e) to carry out such other duties as may be prescribed by or pursuant to the Act.
(2) It shall be the duty of the Commission: (a) to make available (i) to persons engaged in business, general information with respect to their rights and obligations under this Act; (ii) for the guidance of consumers, general information with respect to the rights and obligations of persons under this Act affecting the interests of consumers; (b) to undertake studies and publish reports and information regarding matters affecting the in-terests of consumers; (c) to co-operate with and assist any association or body of persons in developing and promoting the observance of standards of conduct for the pur-pose of ensuring compliance with the provisions of this Act. (Section 5).
The Commission shall obtain such information as it considers necessary to assist it in its investigation and, -where it considers appropriate, shall examine and obtain verification of documents submitted to it. (Section 6).
(1) For the purposes of carrying out its functions under this Act, the Commission is hereby empowered to: (a) summon and examine witnesses; (b) call for and examine documents; (c) administer oaths;
(d) require that any document submitted to the Com-mission be verified by affidavit; (e) adjourn any investigation from time to time;
(2) The Commission may hear orally any person who in its opinion, will be affected by an investigation under this Act, and shall so hear the person if the person has made a written request for a hearing, showing that he is an interested party likely to be affected by the result of the investigation or that there are particular reasons why he should be heard orally;
(3) The Commission may require a person engaged in business or a trade or such other person as the Commis-sion considers appropriate to state such facts concerning goods manufactured, produced or supplied by him or services supplied by him as the Commission may think necessary to determine whether the conduct of the business in relation to the goods or services constitutes an uncom-petitive practice;
(4) If the information specified in subsection (3) is not furnished to the satisfaction of the Commission, it may make a finding on the basis of the information available before it. (Section 7).
(1) Where the Commission finds that an enterprise has abused or is abusing a dominant position and that such abuse has had or is having the effect of lessening competition substantially in a market, the Commission shall: (a) notify the enterprise of its finding; and (b) direct the enterprise to take such steps as are necessary and reasonable to overcome the effects of abuse in the market concerned.
(2) In determining, for the purposes of subsection (1) whether a practice has had, is having or is likely to have effect of lessening competition substantially in a market, the Commission shall consider whether the practice is a result of superior competitive performance.
(3) For the purposes of this section, an act is not an uncompetitive practice if it is engaged in pursuant only to the exercise of any right or enjoyment of an interest derived under any Act pertaining to intellectual or indus-trial property. (Section 21).
(2) Where on investigation the Commission finds that an enterprise is engaging in tied selling, the Commission shall prohibit that enterprise from so doing.
(3) Where on investigation the Commission finds that exclusive dealing or market restriction, because it is engaged in by a major supplier of goods in a market or because it is widespread in a market, is likely to: (a) impede entry into or expansion of an enterprise in the market; (b) impede introduction of goods into or expansion of sales of goods in the market; or (c) have any other exclusionary effect in the
market, with the result that competition is or is likely to be lessened substantially, the Commission may prohibit that supplier from continuing to engage in market restriction or exclusive dealing and to take such other action as, in the Commission's opinion, is necessary to restore or stimulate competition in relation to the goods.
(4) The Commission shall not take action under this section where, in its opinion exclusive dealing or market restriction is or will be engaged in only for a reasonable period of time to facilitate entry of a new supplier of goods into a market or of new goods into a market and this section shall not apply in respect of exclusive dealing or market restriction between or among interconnected companies.
The mandate of the Commission shall be as follows: I. to investigate the existence of monopolies, cartels, anticompetitive practices and concentrations prohibited by this Act -- in pursuit of which it shall be empowerd to request relevant information or documents from private parties and other economic agents; II. to establish the necessary coordination to combat and prevent monopolies, cartels, concentrations and unlawful business practices; III. to issue rulings on cases within its jurisdiction, assess penalties for violations of this Act, and report unlawful conduct affecting competition to the Public Prosecutor's Office; IV. to offer opinions on the restructuring of programs and policies of the federal government that are detrimental to competition; V. to offer opinions, when requested to do so by the Federal Executive, on the suitability of draft legislation and regulations in matters concerning competition; VI. where it deems appropriate, to offer opinions on the effect of laws, regulations, agreements, directives and administrative acts on competition (such opinions are not legally binding, however, nor is the Commission required to issue an opinion); VII. to prepare, and ensure compliance with, manuals for the internal organization and procedures of the Commission; VIII. to participate along with other competent agencies in the signing of international treaties, agreements and conventions regulating policies on competition, to which Mexico has acceded or intends to accede; IX. to carry out such other duties as are assigned to it under the laws and regulations of Mexico. (Article 24).
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 Industry, 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.
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.
The Supervisory Agency for Private Investment in Telecommunications (Organismo Supervisor de Inversión Privada en Telecomunicaciones - OSIPTEL), established by the Telecommunications Law (Supreme Decree 013-95-TCC, Codified Single Text of the Telecommunications Law), is charged with regulating the behavior of operating enterprises and the relations of these enterprises among themselves, guaranteeing the quality and efficiency of the services provided to users, and regulating the equilibrium of rate tariffs. Its functions include maintaining and promoting effective and fair competition among providers of carrier, final, broadcasting and value added services.
The DOJ is an Executive Branch Department; it enforces the antitrust laws (Sherman and Clayton Acts, but not the FTC Act) through criminal prosecutions and civil law suits in the federal courts. The DOJ has sole authority to prosecute federal criminal violations.
The FTC is an independent regulatory agency; it enforces the antitrust laws (Clayton Act, FTC Act provisions on "unfair methods of competition", but not the Sherman Act) principally through administrative proceedings. The FTC also enforces provisions in the FTC Act that protect consumers against unfair or deceptive acts or practices. In addition to its adjudicative authority, the FTC has the power to promulgate industry or trade regulation rules primarily for consumer protection matters; in some cases, violation of such rules may result in civil monetary penalties. The FTC's ultimate recourse for enforcement of its orders is through the federal courts.
Both agencies have the power to compel testimony and the production of evidence for use in antitrust investigations, subject to strict rules for the protection of confidentiality.
The Superintendency shall be responsible for monitoring and controlling the practices that impede or restrict free competition. Among others, it shall have the following powers and duties: 1. To resolve matters assigned to it by this Law; 2. To conduct the investigations necessary to verify the existence of anticompetitive practices, and prepare case files concerning such practices; 3. To determine the existence or nonexistence of prohibited practices of conduct, act to proscribe them, and impose the penalties provided in this Law; 4. To adopt the necessary preventive measures, at its own initiative or at the request of a concerned party, to avoid the detrimental effects of the prohibited practices; 5. To authorize those practices or conduct in those exceptional cases to which Article 18 refers to, and always within the limits which are in effect; 6. To propose to the Executive Branch the regulations necessary for the application of the law; 7. To issue its internal regulations and the rules necessary for its operation; 8. To issue an opinion on matters within its competence when so requested by the judicial or administrative authorities; 9. To create and maintain the Register of the Office of the Superintendent; and 10. Any other powers and duties indicated by the laws and regulations. (Article 29).