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
X. Administrative Procedures
The investigation will be initiated by the National Commission for the Defense of Competition on a sua sponte basis or by a complaint filed before it. (Article 17).
If the investigation were initiated on a sua sponte basis, a relationship of the events that originated it will be established. If it were initiated by a complaint, the complaint must contain the requirements demanded by the Procedural Code in Criminal Matters. (Artículo 18).
1. The common procedures established in the Constitution, the Criminal Code, and the Investment Law.
2. To consider and process complaints filed by users, regulated companies and entities, and competent state organs concerning activities within the jurisdiction of the SRS. (Sectoral Regulation Law, Article 10).
The prevention, investigation, and prosecution of practices that hinder competition, based on Law 8,884/94, are administrative acts.
The proceedings are initiated by the Secretariat for Economic Law, sua sponte, upon complaint lodged by a third person alleging injury or, in the case of acts subject to control, by the interested parties. The SDE/MJ is responsible for the investigative stage of the administrative proceedings, which include a technical opinion of the SEAE/MJ, and forwards the record to the CADE for final decision.
The decisions of the CADE, while not subject to review in the Executive branch, may be reviewed by the Judiciary.
The administrative proceedings for investigating and prosecuting infractions of the economic order provided for in Law 8,884/94 are as follows:
The SDE will undertake the preliminary inquiry sua sponte, or upon written and justified representation of any interested person; none of the information so collected will be disseminated when the indicia of an infraction of the economic order are not sufficient to initiate an administrative proceeding immediately.
In the preliminary inquiry, the Secretary of the SDE may adopt any of the measures indicated in Law 8,884/94, including requesting clarification of the information provided from persons subject to investigation.
Once the preliminary inquiry is concluded, the Secretary of the SDE has 60 days to decide whether to initiate an administrative proceeding or whether to close the case; in the latter case, it shall recur, sua sponte, to the CADE.
Where the petition is brought by the Committee of the National Congress, or by any of its chambers, there is no need for a preliminary inquiry, and the administrative proceeding is initiated forthwith.
An administrative proceeding will be initiated within a period no longer than eight days, counted from the time the fact was reported, from the representation, or from the closing of the preliminary inquiry, by reasoned order of the Secretary of the SDE, which will specify the facts to be investigated.
The party represented will be notified to present its defense within 15 (fifteen) days.
The initial notification will include the entirety of the order to initiate an administrative proceeding and the representation, as appropriate.
The initial notification will be by mail, with acknowledgement of receipt in one's own name, or, if notification by mail is not successful, by edict published in the Official Gazette (Diário Oficial da União) and in a large circulation newspaper in the state in which the person in question resides or is based; the deadlines will be counted from the time the acknowledgement of receipt is attached, or from its publication, as the case may be.
Notice of the other procedural acts will be by publication in the Official Gazette, and should include the name of the person represented and of his or her attorney.
The person represented may participate in the administrative proceeding through its owner and its directors or managers, or through legally qualified attorneys, who are ensured full access to the proceedings in the SDE or the CADE.
A represented person who, once notified, does not present any defense in the legal time period, shall be considered in default, and shall be deemed to have confessed as to the facts, and all the time periods shall be considered to run, independent of notification. Whatever the phase of the proceeding, the defaulter may participate, without the right to repetition of any act already performed.
Once the term for presenting the defense has lapsed, the SDE shall determine the procedures to follow and the production of evidence of interest to the Secretariat, as it has the authority to request of the representative of any natural or juridical person, organ, or public entity, information, clarifications, or documents to be presented within fifteen days, maintaining legal secrecy as appropriate.
The proceedings and evidence determined by the Secretary of the SDE, including examination of witnesses, will be concluded within forty-five days, which can be extended for a like period in case of justified need.
The federal authorities, directors of federal autonomous entities, foundations, public companies, and mixed corporations, lest a determination of liability be rendered against them, shall provide all the assistance and cooperation requested of them by the CADE or the SDE, including preparing technical opinions on the matters of their competence.
The person represented shall present the evidence of its interest within the maximum term of forty-five days counted from presentation of the defense, and may submit new documents at any time prior to the conclusion of the investigative stage of the proceedings.
The person represented may request the Secretary of the SDE to designate a day, time, and place for hearing witnesses, if there are no more than three.
The Secretariat for Monitoring the Economy, of the Ministry of the Treasury, will be informed sua sponte of the initiation of the administrative proceeding so that, if it so wishes, it may issue an opinion on the matter of its specialization, which shall be presented prior to the conclusion of the investigative phase of the proceeding.
Once the investigative stage of the proceeding is concluded, the person represented will be notified to present final arguments, within five days, after which the Secretary for Economic Law, in a detailed report, will decide either to forward the record to the CADE for judgment, or to close the case, recurring ex-officio to the CADE in the latter case.
The preliminary inquiry and the administrative proceeding should be conducted and concluded in the shortest possible time that is compatible with clarifying the facts; the Secretary of the SDE and the members of the CADE, as well as the staff and officers of these organs shall so proceed, lest they be found liable for not doing so.
On the Preventive Measure and the Order to Cease: At any stage of the administrative proceeding, the Secretary of the SDE or the Counselor-Rapporteur of the CADE, at his own initiative or prompted by the Prosecutor-General of the CADE, may adopt a preventive measure when there is an indication or a well-founded concern fear that the person represented is causing or may cause harm to the market, directly or indirectly, that is irreparable, difficult to repair, or that would render the final outcome of the proceeding ineffective.
In the case of a preventive measure, the Secretary of the SDE or the Counselor-Rapporteur of the CADE will order the immediate cessation of the practice, and will order, when materially possible, reversion to the situation ex ante, setting a daily fine in the case of non-compliance, in the terms of Law 8,884/94. There may be a voluntary appeal of this decision, within a period of five days, to the plenary of the CADE, without suspending its effect.
On the Commitment to Cease: At any phase of the administrative proceeding the CADE or the SDE, ad referendum of the CADE, may enter into a commitment to cease the practice under investigation, which shall not be construed as a confession as to the facts, nor acknowledgement that the activity under investigation is wrongful.
The proceeding will be suspended so long as the commitment to cease is fulfilled, and will be closed at the conclusion of the term set, if all the conditions established are met.
The commitment to cease constitutes prima facie evidence; it is executed immediately in the case of non-compliance or if obstacles are placed in the way of its oversight, as prescribed in Law 8,884/94.
Judgment of Cases before the CADE
Once a case is received, the Chairman of the CADE will distribute it, by lot, to the Counselor-Rapporteur, who will submit it to the CADE counsel, who in turn is to submit a statement within 20 days.
The Counselor-Rapporteur may decide to undertake complementary proceedings or request new information, pursuant to Article 35, as well as authorize the party to produce new evidence when he finds the information in the record insufficient to form his views.
Upon the Chairman's invitation, by indication of the Rapporteur, any person may submit additional information to the CADE regarding the matters in the case file before it.
In the act of judgment in plenary, the date of which shall be conveyed to the parties with at least five days anticipation, the CADE counsel and the represented person or his attorney shall have, respectively, the right to speak for 15 minutes each.
The decision of the CADE, which shall set forth its reasoning, whatever the decision, shall contain the following elements when including a finding of infraction of the economic order:
1. specification of the facts that constituted the infraction found and an indication of the measures to be adopted by the persons responsible for making it stop;
2. a time period within with the measures referred to in the previous section should be initiated and concluded;
3. stipulated fine;
4. daily fine in the case of an ongoing infraction.
The decision of the CADE shall be published within five days in the Official Gazette.
If the decision is not carried out, in full or in part, the Chairman of the CADE will be informed of said non-compliance, and order the CADE counsel to prepare its judicial execution.
The decisions of the CADE shall be made by absolute majority, with the presence of at least five members.
The decisions of the CADE shall not be appealable in the Executive branch; the decisions shall be executed, and shall immediately be communicated to the Office of the Attorney General for whatever other measures may be within its powers.
The Regulation and By-laws of CADE shall set forth complementary provisions on the administrative proceeding.
As discussed above, the Director is responsible for enforcing the Act. Matters which the Director pursues proceed through one or more distinct stages. Normally the Director begins witha preliminary examination of a matter to determine whether it raises a question under any of the provisions of the Act. At this stage, the matter may not be pursued if in the Director=s opinion further examination is not justified. If a possible issue under the Act is identified, the Director may proceed with an information contact or further examination of the matter.
If upon examination, the Director believes on reasonable grounds that there has been a contravention of the criminal or non-criminal reviewable matters provisions of the Act or of an outstanding order, the Director is required to commence an inquiry into all such matters as aare considered necessary to determine the facts. The Director is also required to commence an inquiry when directed to do so by the minister or when six Canadian residents make an application under section 9.
Once an inquiry has been commenced, the Director can apply for authorisation from a court to search for and examine records, to conduct oral examinations and to exercise the other investigative powers provided by the Act. The Director may also enter into discussions with the Attorney General of Canada on appropriate consideration that might be extended to companies or individuals who voluntarily provide information or evidence with respect to a criminal matter at an early stage. Such consideration of favourable treatment, particularly any possibility of immunity from prosecution, can only be granted by the Attorney General and in accordance with the general policy of the Attorney General in respect of federal offences. However, the recommendations of the Director, as the official responsible for the overall enforcement of the Act, have historically received careful and serious consideration.
At any stage of an inquiry relating to the criminal provisions of the Act, the Director may refer a matter to the Attorney General for consideration for prosecution or such other action as the Attorney General may wish to take. When a matter is referred to the Attorney General, the Director normally includes a recommendation as to an appropriate disposition of the matter. The Attorney General nevertheless retains complete discretion as to the action to be taken. In the case of reviewable matters, the Director through legal counsel brings forward application s to the competition Tribunal for remedial orders.
To determine whether there is an infringement of the standards on promotion of competition and restrictive business practices that this Decree refers to, the Superintendency of Industry and Commerce shall initiate official proceedings on its own or at the request of a third party and shall conduct a preliminary inquiry whose result will determine the need to conduct an investigation.
When the initiation of an investigation is ordered, the investigated party shall receive personal notice thereof in order for him to request or provide the evidence he plans to make use of. During the investigation, the requested evidence as well as the evidence the competent official deems necessary shall be obtained.
Once the investigation is substantiated, a report on whether there has been a violation shall be submitted to the Superintendent. Such a report shall also be provided to the investigated party.
During the course of the investigation, the Superintendent may order that the investigation be closed when in his judgement the presumed infringer offers sufficient guarantee that he will cease or remedy the conduct for which he is being investigated.
In the matters not provided for in this Article, the Administrative Code shall be applied. (Article 52, Decree No. 2153/92).
The Law establishes that the Commission for Promotion of Competition has primary jurisdiction, which must be exhausted before legal proceedings are instituted, except in the case of acts of unfair competition. (Article 18).
Suits to prosecute infractions must commence within six months of the date when the offense occurs or becomes known to the injured party. However, in the case of continuous acts, the period begins after the last act ends. (Article 27).
Based on Article 30, 34, 35, 38 y 39 of the Regulations, the procedure is as follows:
When a complaint is received or on its own initiative, the Technical Support Unit makes a preliminary investigation of the facts in order to determine if there is reasonable evidence to show that a party has engaged in a practice prohibited by Law, such as to justify the initiation of administrative proceedings. After its investigation, the Unit presents a report to the Commission with its recommendation. This report must include an analysis of such aspects as the legal standing of the complainant, observance of the minimum requirements established in the General Law of Public Administration, and the items of evidence submitted. (Article 34 of the Regulations).
If the Commission determines from its initial analysis that none of the indicated situations exists, or there is insufficient evidence of them, it shall reject the complaint and close the case. If it finds to the contrary, the Commission shall order an administrative trial based on the result of the investigation, to be carried out by the Technical Support Unit. (Article 35 of the Regulations).
The applicable procedure is the normal administrative procedure established in Book Two of the General Law on Public Administration, which is based on principles of due process, informal pleading, disclosure, impartiality, and publicity. Procedures ordinarily consist of an oral private hearing before the executive organ, which admits and receives evidence and testimony from all parties to the matter. (Article 25 of the Law).
After the hearing, the Commission should issue a final ruling within 15 days, counted from the date of the hearing, unless the executive organ wishes to introduce new facts, add evidence, or when it has been impossible in the first hearing to prepare the case for the final decision. In such cases, the Unit shall seek the guidance of the Commission, which must render its decision within 48 hours. If it approves an extension, it will schedule a second hearing within no more than 15 days. There shall not be more than two hearings.
The administrative proceeding should be concluded, with the Commission's ruling, within two months after its start, or after the presentation of the complaint or petition of the party. The complainant shall assist the administration in the procedure and not be a party in his own right. (Article 38 of the Regulations).
Parties may request reconsideration of the final ruling of the Commission, in accordance with Article 21 of the Regulatory Law on Administrative Legal Proceedings.
Decisions of the Commission shall be carried out upon notification, unless their effect is suspended on the grounds that serious or irreparable injury is likely to be cuased, by virtue of the terms and conditions of Article 148 of the General Law on Public Administration.
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 usual court criminal procedures.
Since there are no specific laws pertaining to competition, there are no specific administrative 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).
A. Administrative Proceedings
1. Process of reviewing combinations
In all cases where the Commission reviews a combination, the following procedure shall be followed:
a. The concerned economic agent shall submit the corresponding notification in writing, together with a copy of the legal transaction in question, indicating the names or trade names of the parties involved, their financial statements for the last fiscal year, their share of the respective market, and any other data necessary to identify the transaction;
b. The Commission may request additional data or documents, within the twenty (20) calendar days following receipt of the notification;
c. As of the date of receipt of the notification, or the date on which the additional data or documents are received, as applicable, the Commission shall have up to sixty (60) calendar days to render a decision. If this period expires without the rendering of said decision, the combination shall be considered approved;
d. The Commission's decision must be duly justified and well-founded in the law;
e. The Commission's favorable decision concerning the combination shall not imply a pronouncement on the commission of other monopolistic practices prohibited by law;
f. The Commission may reject a request for review, when it is clearly pointless or when an opinion has already been expressed concerning the same review. (Article 118).
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).