Competition Advocacy Policies to Enforce the Antitrust Law

1. Introduction

In recent years the National Commission for the Defense of Competition (the “Antitrust Commission”) has been engaged in competition advocacy. Every year the Antitrust Commission executes many measures which are addressed to spread over the community the provisions set forth in the Antitrust Law and the concept of free competition.

The Antitrust Commission has a wide range of alternatives in order to implement competition advocacy policies. One of the most important policies is the issuance of a periodical publication called Competition Report (“Memorias”). This document is addressed to the general public and provides a brief overlook of the Antitrust Commission’s day-to-day activities. Furthermore, the Competition Report is a very valuable document for those professionals who specialize in competition matters.

2. Background

Section 24 of the Antitrust Law empowers the Antitrust Commission to implement competition advocacy policies through the following acts:

1. performance of market analysis and investigations;
2. encouragement of studies and investigations on competition matters;
3. issuance of opinions regarding competition matters and free concurrence with respect to laws, regulations, communications and administrative acts;
4. issuance of general or sector recommendations regarding the different types of competition in the markets;
5. acting with the relevant entities in the negotiation of treaties or international agreements in connection with the regulation policies of free competition.

The Competition Report mentioned above is a way to publicly convey or transmit what the Antitrust Commission is doing.

On the one hand, it provides a descriptive and statistical analysis of the merger control cases which were subject to the mandatory notification before the Antitrust Commission. The report also provides charts that inform about which markets of the local economy (telecommunications, pay TV, oil & gas, etc.) were involved in the most relevant mergers and acquisitions throughout a certain year. The outcome of the competition analysis made by the Antitrust Commission (approval, rejection or setting of conditions) is also informed.

The latest Competition Report issued by the Antitrust Commission covered the period 2007/2009. Pursuant to such report in 2007, 2008 and 2009, the Antitrust Commission analyzed 35, 47 and 46 merger cases respectively. During such period the Antitrust Commission only rejected 2 mergers and conditioned only 4.

On the other hand, the Competition Report informs about anticompetitive conducts, market investigations and preventive measures. The Antitrust Commission’s workload regarding such measures is high because they could be initiated ex officio or upon a third party request. This part of the Report shows the Antitrust Commission’s prosecuting attitude and addresses any possible restriction to competition based on an exclusory practice and/or collusive conducts among competitors.

During 2007, 2008 and 2009 the Antitrust Commission analyzed 48, 16 and 18 anticompetitive conduct cases, respectively. A high percentage of such cases consisted in allegations of abuse of dominant position and exclusory practices. Furthermore, the Antitrust Commission was involved in 4 market investigations and issued 4 preventive measures.

The Competition Report also informs about the institutional and co-operational agreements executed by the Antitrust Commission. During 2007/2009 the Antitrust Commission participated in competition committees, seminars and forums within the World Trade Organization and the Organization for Economic Cooperation and Development (OECD). It was also involved in cooperation agreements with the Mercosur, Brazil and Canada.

Another competition advocacy policy is the issuance by the Antitrust Commission of pro-competitive recommendations within certain markets. Such recommendations are very useful for those regulatory agencies which have competition concerns within a market that is under their regulation scope.

A very valuable pro-competitive recommendation issued by the Antitrust Commission during 2010 was regarding the national telecommunications plan called “Argentina Connected” (the “Plan”). The main goal of such Plan was to set up fiber optic services throughout all Argentinean provinces. The recommendation stated that the Plan was highly pro competitive for the telecommunications industry in Argentina. It argued that the development of a neutral transportation network will allow for the regional proliferation of new players and indirectly stimulate private investments in those markets.

3. Conclusion

The role of the Antitrust Commission in the implementation of competition advocacy policies is important for the evolution of the antitrust practice in Argentina. The institutional and co-operational agreements that the Antitrust Commission is executing with other competition agencies on a regional and international level are extremely useful in order to improve our antitrust regulation and thus market competition conditions.

The Competition Report evidences the important efforts that the Antitrust Commission is making so as to implement the competition advocacy policies set forth in Section 24 of the Antitrust Law.

Source
Commission’s Competition Report for 2007/2009 and competition information available at http://www.cndc.gov.ar