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
XIII. Recourse or Appeal
The victims of the acts prohibited by this law may file civil action for damages before the appropriate courts for commercial matters, as of the dates when: a) The resolution stated in article 19 is firm; b) The approval resolution stated in article 24 has been passed; c) The resolution stated in article 30 is firm.
However, after eighteen (18) months have elapsed after the beginning of the investigation, the plaintif may file a civil action for damages.
The term for the case to fall under the statute of limitation will be of two (2) years as of the date on which the civil action can be initiated, in accordance with that stated by this document. (Article 4).
The measures stated in the previous article may be jointly enforced. They might be appealed before the National Court of Appeals for Economic and Criminal Matters of the Capital Federal or before the corresponding Federal Courts in the rest of the country. The appeal will be filed and grounded in writing within the five (5) days after the measure was notified and it will be admitted relative to and with both effects, with the exception of the decision indicated in paragraph a) of the previous article, in which case, it will only be admitted with a mere restitutionary effect.
Proceedings will be submitted to the Court within the following two (2) days. Since it is a measure included in paragraph b) of the previous article, the Court shall have to render an opinion within an unextendable term of twenty (20) days.
The measure of paragraph d) of article 26 cannot be appealed. The appeal will proceed against the legal resolution deciding the dissolution and liquidation of the company. (Article 27).
Non compliance of rules stated in paragraphs a) and b) of article 26, will entitle the Secretary of State for Commerce and International Economic Negotiations, after notifying the presumed liable person within the following three (3) days and with the verdict of the National Commission for the Defense of Competition, to impose a daily fine of up to fifteen million pesos ($15,000,000) not withstanding the criminal penalty that might be appropriate. The fine might be reduced or left with no effect, if the presumed liable subject, totally or partially justifies his or her behavior and accepts the measure. Against the resolution enforcing the penalty, an appeal can be filed in accordance with that stated in article 27, with a mere restitutionary effect. (Article 28).
Appeals regarding unconstitutionality, redress, and nullity.
The decisions of the CADE are not subject to review in the Executive branch; their judicial execution follows immediately upon a decision. The Attorney General's Office should be informed of this decision so as to adopt the appropriate measures within its powers.
Nonetheless, the Judiciary, through the federal courts, may review the decisions of the CADE.
Remedies and appeals in such cases are to the Superior Tribunals.
In the case of civil reviewable matters which are adjudicated before the Tribunal, Section 13 of the Competition Tribunal Act establishes the circumstances where decisions rendered by the Competition Tribunal may be appealed to the Federal Court. This section states that:
(1) Subject to subsection (2), an appeal lies to the Federal Court of Appeal from any decision or order, whether final, interlocutory or interim, of the Tribunal as if it were a judgment of the Federal Court-Trial Division;
(2) An appeal on a question of fact lies under subsection (1) only with the leave of the Federal Court of Appeal.
The regime setting out circumstances where a decision rendered in the context of a criminal matter may be appealed derives from Canadian criminal law principles. The Canadian Criminal Code gives the right to appeal a conviction for an indictable offense, provided certain conditions are met. The appeal must be taken to the Court of Appeal in the Province in which the conviction was registered. Under specific circumstances, the decision rendered by this Court of Appeal may be further appealed to the Supreme Court of Canada.
Appeals through the government
1) General Principle: There shall be no appeal against acts of a general nature or procedural, preparatory, or executive acts except as provided in law. (Article 49 of the Administrative Law Code) As a general rule, the following appeals may be considered regarding final administrative decisions:
1. That of reconsideration, so that the same official who made the decision clarifies, modifies, or revokes it; 2. appeal to the immediate administrative superior for the same purpose. No appeal shall obtain in the case of decisions of ministers, heads of administrative departments, superintendents, and legal representatives of decentralized agencies or autonomous administrative units; 3. That of reconsideration in the event the appeal is rejected. Reconsideration is optional and may be sought directly from the superior of the official who made the decision, in a writ accompanying the notification of denial of the appeal. This recourse must be sought within five (5) days following notification of the decision. (Article 50 of the Administrative Law Code).
2) Appeals against actions of the Superintendent of Industry and Commerce: Duties of the Superintendent of Industry and Trade: ...1. To rule on appeals and requests for revocation against actions that he has taken. There shall be no appeal concerning actions of the Deputy Superintendent because the Superintendent of Industry and Commerce does not have that authority and it is incumbent on him together with the directors of the Superintendency, who are named directly by the President. (Article 4, Decree 2153 of 1992).
Pursuant to the General Law on Public Administration (specifically, Articles 342 and 355), which complements the Law for Promotion of Competition, appeals in ordinary administrative proceedings can only be lodged against the act that started them, the denial of a hearing or right to submit evidence, or the final decision.
As established in the General Law, the ordinary recourse shall be to seek to have the administrative decision revoked or set aside, or appealed, and only exceptionally to have it reconsidered.
In practice, where the Commission is the body that orders the opening of proceedings, the remedy of revocation can only be issued against the decision ordering the opening of proceedings. Under this procedure, decisions of the regulatory agency denying a hearing or the right to submit evidence are subject to both forms of remedy, i.e. revocation before the regulatory agency and appeal before the Commission, which is hierarchically senior to the regulatory agency.
Recourse of reconsideration or to reversal may be sought against final decisions of the Commission, pursuant to Article 31 of the Administrative Disputes Regulations. Accordingly, both the final decision of the administrative proceeding and decisions of the Commission rejecting the opening of proceedings may be appealed, since in both cases administrative remedies would have been exhausted. (Article 61 of the Law).
The General Law provides for the remedy of reconsideration against definitive final decisions involving any of the situations covered by Article 353 of this Law.
In the abbreviated administrative procedure, appeal may be brought before the Third Section of the Superior Administrative Tribunal, against decisions of the Second Section of the Administrative Tribunal, which is the competent body to hear complaints against any decision of the Commission. (Article 62 of the Law).
Concerning decisions of the Preventive Commissions.
None of the recourse normally contemplated in Chilean law is generally available in the case of decisions of these Commissions. However, Article 9 establishes a special appeal, called a protest, which has the following characteristics: 1. It must be presented to the respective Regional or Central Preventive Committee; 2. The appeal does not suspend the effect of the decisions that are protested; 3. The Regional or Central Preventive Committee shall issue a report with the background and reasons adduced to justify the legality of the decision that gave rise to the appeal; 4. The Resolutory Commission shall be notified of the appeal.
Once the background is received, the Commission can: a) Rule on the protest within 15 days, counting from the day the background was received. If it does not make a decision within that period, the protest will be considered accepted; or it must take up the matter, regardless of what the parties request, and may conduct a hearing of those involved and suspend in any case the effect of the protested resolution. (Article 9).
Concerning resolutions of the Resolutory Commission.
There can be no appeal whatsoever of the resolutions of the Resolutory Commission, except the protest established in Decree Law 211 itself. This appeal may only be lodged in those cases in which the contested resolution orders the modification or dissolution of corporations, exclusion from holding professional or labor offices, or the application of fines. Resolutions that are not sanctions are not subject to any protest, unless the complainant is the National Economic Prosecutor. The appeal must be filed not later than 10 working days after the decision with the Resolutory Commission or through the respective Preventive Commission. The Commission shall rule based on its own judgment and notify the Supreme Court. (Article 19).
For criminal offenses, there is the recourse of the criminal justice system for appeal, review, and suspension of sentence prior to execution. (Criminal Code).
In decisions concerning actions prohibited in Law No. 13, adopted by the Price Control Office, there is the recourse of appeal to the Department of Industry and Commerce. (Law No. 13).
The judicial system provides for the remedies of appeal, review and annulment; in addition, persons may seek protection of their constitutional rights before the Constitutional Court of Guatemala.
(1) Any person who is aggrieved by a finding of the Commission may within fifteen days after the date of that finding appeal to a Judge in Chambers.
(2) The Judge in Chambers may: (a) confirm, modify or reserve the findings of the Com-mission or any part thereof; or (b) direct the Commission to reconsider, either generally or in respect of any specified matters, the whole or any specified part of the matter to which the appeal relates.
(3) In giving any direction under this section, the Judge shall: (a) advise the Commission of his reasons for doing so; and (b) give to the Commission such directions as he thinks just concerning the reconsideration or otherwise the whole or any part of the matter that is referred back for reconsideration.
(4) In reconsideration of the matter, the Commission shall have regard to the Judge's reasons for giving a direc-tion under subsection (1) and the Judge's directions under subsection (3). (Section 49).
Where an appeal is brought against any findings of the Commission any directions or order of the Commission based on such findings shall remain in force pending the determination of the appeal, unless the Judge otherwise orders. (Section 50).
Determinations of the Commission under this Act may be appealed to the Commission itself, provided such appeal is received within 30 working days following notification of the determination.
An appeal shall be disposed of by the revocation, modification or affirmation of the determination from which relief is sought. The decision of the Commission shall state the basis for the decision on the challenged action, the legal grounds for the decision, and the specific rulings of the Commission. The regulations issued pursuant to this Act will set the conditions and other requirements for appeal procedures and rules of evidence.
Appeals must be submitted in writing to the Chairman of the Commission, indicating the name and address of the appellant and the determination being appealed, and accompanied by such evidence as appelant considers necessary, together with proof of the legal authority of appellant.
Enforcement of the original determination shall be suspended pending the outcome of an appeal. Where suspension of a penalty imposed under Article 35 (I & II) may result in damage to third parties, an appeal shall be heard only if appellant gives sufficient guarantee of indemnification in the event the original determination is upheld.
The Commission shall give notice of its decision within 60 days of the date of appeal. Failure to do so shall be deemed an affirmation of the original determination. (Article 39).
A. Administrative Proceedings
1. Motions for appeal and the exhaustion of governmental remedies. The only remedy against a final decision is that of an appeal, which must be filed and defended before the full Commission, within ten (10) working days of notification thereof.
A copy of the appeal shall be given to the parties concerned within five (5) working days, to enable them to put forward any arguments they may consider appropriate.
The full Commission shall have fifteen (15) working days to rule on the motion for appeal, at which point the governmental remedies shall have been exhausted, clearing the way for recourse under administrative law.
The appeal shall be granted in the suspension of execution of judgment. (Article 138).
B. Judicial Proceedings
The only remedy against the final decision is that of an appeal, which must be filed and defended before the Superior Court of Appeals, within ten (10) working days of notification thereof.
A copy of the appeal shall be given to the parties concerned within five (5) working days, to enable them to put forward any arguments they may consider appropriate.
The Superior Court of Appeals shall have fifteen (15) working days to rule on the motion for appeal.
The appeal shall be granted in the suspension of execution of judgment. (Article 169)
An appeal for the annulment of first appeal decisions pronounced by the Superior Court of Appeals shall be heard in the following cases:
1. When decisions are rendered which impose civil sentences or order the dissolution of a combination;
2. When the decision in question was rendered in a class action;
3. When decisions are rendered which impose penalties of five hundred thousand balboas (B/.500,000.00) or more;
4. When decisions are rendered by the Superior Court of Appeals in proceedings involving economic combinations.
Other decisions of the Superior Court of Appeals may not be appealed.
The Superior Court of Appeals, having sole jurisdiction, shall be competent to try cases involving economic combinations. (Article 233).
The following appeals may be lodged against the decisions of the Commission on Free Competition, as recognized in the Law on General Standards for Administrative Cases: a) reconsideration by the Commission on Free Competition; and b) appeal to the Commission to refer the matter to the antitrust chamber.
In matters within the sphere of competence of any of the functional agencies of INDECOPI (The Commission on Free Competition), there can be no recourse to the courts until the administrative procedures are exhausted. For purposes of this Decree Law, administrative procedures will be considered to be exhausted only upon the corresponding decision of the Court for Defense of Competition and Intellectual Property. (Article 16 of the Law on Organization and Functions of INDECOPI).
Decisions of the Court for Defense of Competition and Intellectual Property can be challenged in the courts, in the first instance, in the civil chamber of the Supreme Court. Decisions by that chamber may be appealed, in the second instance, to the Constitutional and Social Law Chamber of the Supreme Court. (Article 17 of the Law on Organization and Functions of INDECOPI).
All DOJ and some FTC enforcement actions are brought in the federal district courts and are subject to normal appellate review in the federal circuit courts of appeals.
FTC administrative decisions are appealable directly to the federal courts of appeals.
Private suits are also brought in the courts and subject to appellate review.
In rare cases the Supreme Court exercises its discretionary jurisdiction to review the judgment of a federal appeals court in an antitrust case.
Decisions adopted by Superintendency exhaust the administrative route, and the only remedy that may be undertaken has to be finalized within the period of forty-five (45) calendar days. This remedy is the contentious-administrative appeal in conformity with the Law on that matter. (Article 53).
When the administrative law appeal is being undertaken to review Superintendency resolutions that determined the existence of prohibitive practices, the effects of the resolutions shall be suspended if the appellant posts a bond. The amount of the bond shall be determined in each instance in the final decision, in conformity with the second paragraph of Article 38. (Article 54).