Corporate Compliance, Internal Investigations and Business Crime
In early February 2021, the Argentine Senate approved a bill aiming to modify the Antitrust Law No. 27,442. Among other changes, the bill suppresses the leniency program, the cease of conduct agreements, and modifies the procedure for the appointment of the National Competition Authority’s (the “NCA”) members.
If the bill is approved this will be a major setback as the leniency program was proved to be the best tool to detect, pursue and sanction cartels around the world.
The Antitrust Law provides for a public contest before a jury, the pre-selection in the form of shortlists by the jury and the subsequent appointment by the Executive Power with the agreement of the Senate. Likewise, according to the law, the NCA would be created under the Executive Power.
Pursuant to the Antitrust Bill, the NCA would be under the Secretariat of Domestic Trade (the “SDT”) and the appointment of its members would be done by the Executive Power at the proposal of the Ministry of Productive Development. The Antitrust Bill also indicates that the selection will be made within the framework of a public, open and transparent procedure.
The Antitrust Bill is yet to be discussed by the Chamber of Deputies. The date for the debate is uncertain. The City of Buenos Aires Bar Association, the Antitrust Section of which is chaired by our partner Gabriel H. Lozano, made a public statement with several criticisms to the proposed amendments.
This reform process follows a number of decisions reducing the National Competition Authority’s legitimacy. In October 2020, the Ministry of Productive Development published Resolution No. 527/2020 by means of which the public contest that had been carried out to appoint the members of such Authority was declared absolutely null and void, on the grounds that irregularities had taken place during the process.
Section 18 of the Antitrust Law currently in force determined the creation of the NCA as an autonomous body within the National Executive Branch. Within the NCA shall act the National Competition Tribunal (the “Competition Tribunal”), the Secretariat of Anti-competitive practices and the Secretariat of Economic Concentrations.
On April, 2019, the Secretariat of Domestic Trade issued Resolution No. 146/2019 calling for a public contest to select the members of the NCA. After the evaluation process of candidates, the corresponding shortlists were approved and all the required steps were completed, the SDT sent to the National Executive Branch the details of the candidates. Former President Macri sent a list of elected candidates to the Senate, but the current Government withdrew the appointments. Currently, the National Antitrust Commission acts with members appointed by President Alberto Fernández as a “technical advisory body”, and the SDT as the interim enforcement authority of the Antitrust Law, until the appointment of the members of the National Competition Authority.