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
VI. Prohibited Conduct
The following acts or behaviors shall be punished with the penalties indicated in article 42, provided they fit into article 1. a) Setting, determining or making prices in a market change, directly or indirectly, via concerted actions; b) Limiting or controlling through concerted actions, the technical development or the investments for the production of goods or services, as well as their production, distribution or marketing; c) Establishing, through concerted actions, the marketing sales conditions, minimum quantities, discounts and other aspects related to selling and marketing; d) Subordinating the signing of contracts to the acceptance of supplementary aspects or operations, which because of their nature and according to standard commercial practices are not related to the object of these contracts; e) Concluding agreements or undertaking concerted actions, distributing or accepting among competitors, zones, markets, client bases or sources of supplies; f) Preventing or hurdling the access to markets of one (1) or more competitors through agreements or concerted actions; g) Refusing to fulfill specific orders, for the purchase or sale of goods and services, made under the standard conditions in effect in the market in question, as part of a concerted action and with no reasons grounded in commercial practices; h) Imposing, through concerted action, products in any stage of elaboration, or production, or the means devoted to extract, produce, or transport such products; i) Destroy, as a part of a concerted action, products in any stage of elaboration, or production, or the means devoted to extract, produce, or transport such products; j) Abandoning harvests, crops, plantations or cattle or agricultural products, or discontinuing or preventing the operation of industrial plants or the production of mining fields, as part of a concerted action; k) Communicating to competing enterprises, as part of the concerted action, prices or other marketing, or purchase of sale conditions under which these enterprises will have to operate. (Article 41).
1. Cartels. Companies and entities that carry out activities in sectors regulated by the present law are prohibited from engaging in joint agreements, contracts, decisions, or practices whose intent or effect is to prevent, restrict, or distort free competition by: a) joint price-setting, directly or indirectly; b) the setting of quotas or dividing control of production, markets, supply sources, or investments; or c) the carrying out of other similar anti-competitive practices. (Sectoral Regulation System Law, Article 16).
2. Abusive practices. Companies or entities subject to regulation under this law are enjoined from abusive practices that have the intent or effect harming competitors, clients, and users, resulting in non-competitive situations in one or more markets. Such abusive practices may include: a) the direct or indirect fixing of sale or purchase prices or other unfair trading practices; b) restraint on production, sources of supply, markets, or technical development, to the detriment of consumers; c) the application of discriminatory conditions for similar operations, which put clients and users at a disadvantage; d) making contracts contingent upon the party's acceptance of additional obligations that by their nature, or in accordance with commercial practice, are not relevant to the purpose of the contracts; e) requiring that someone soliciting a regulated service become a partner or shareholder. (Sectoral Regulation System Law, Article 17).
All forms of conduct the objective or potential effect of which, even if not attained, is to: 1) limit, falsify, or prejudice free competition or free enterprise; 2) dominate the relevant market of goods and services; 3) arbitrarily increase profits; 4) abusively exercise dominant position.
The "rule of reason" is always applied to determine what circumstances make out a prohibited form of conduct. There are no per se offenses.
All forms of conduct, to be considered illegal, should have, or have the potential to bring about, the anti-competitive effects described above, independent of fault.
For example, the legislation lists some forms of conduct which, if harmful to competition, entailing market domination, arbitrary increase in profits, or abusive exercise of dominant position, will be prosecuted.
These include collusive practices, setting up barriers to the entry of competitors, setting prices and sales conditions, discrimination among purchasers and suppliers, discriminatory, predatory, or conditional agreements, and unjustified price increases or imposition of excessive prices, such as:
1. setting or adopting prices and conditions on the sale of goods or delivery of services, in agreement with one's competition, in any form;
2. obtaining or influencing the adoption of uniform or coordinated commercial conduct among competitors;
3. dividing up the markets for finished or semi-finished goods or services, or the supply of raw materials or intermediate goods;
4. limiting or impeding the access of new firms to the market;
5. creating difficulties to the chartering, operation, or development of a competing company or supplier, purchaser or financier of goods or services;
6. impeding the access of competitors to sources of inputs, raw materials, equipment, or technology, as well as distribution channels;
7. demanding or granting exclusivity for disseminating advertising in the mass media;
8. pre-arranging prices or shifting advantages in public or administrative contests;
9. using deceitful means to cause the prices of third parties to fluctuate;
10. regulating markets of goods and services, entering into agreements to limit or control technological research and development, the production of goods, or the delivery of services, or to hinder investment in the production of goods or services, or in their distribution;
11. imposing on distributors, retailers, and representatives in the trade in goods and services prices for resale, discounts, payment conditions, minimum or maximum amounts, profit margin, or any other marketing conditions relating to transactions with third persons;
12. discrimination among purchasers and suppliers of goods or services by differential price setting, or operating conditions of sales or the delivery of services;
13. refusing to sell goods or deliver services under payment conditions that are normal in terms of commercial uses and customs;
14. hindering or interrupting the continuity or development of commercial relations for an indeterminate term because of the other party's refusal to accept unjustifiable or anti-competitive commercial clauses and conditions;
15. destroying, rendering unserviceable, or withholding from the market raw materials, intermediate or finished goods, as well as destroying, rendering unserviceable, or hindering the operation of equipment for producing, distributing, or transporting such materials and goods;
16. withholding from the market or impeding the exploitation of industrial or intellectual property rights, or rights to technology;
17. abandoning, causing the abandonment of, or destroying crops or plantations without showing just cause;
18. selling merchandise below cost without justification;
19. importing any goods below cost in the exporting country which is not a signatory to the GATT antidumping and subsidies codes;
20. interrupting or significantly reducing production, without showing just cause;
21. ceasing the activities of the firm partially or completely without showing just cause;
22. withholding production or consumption goods, except to guarantee coverage of production costs;
23. conditioning sales of one good on the purchase of another, or on the use of a service, or conditioning the delivery of a service on the use of another or on the purchase of a good;
24. imposing excessive prices, or increasing the price of a good or service without just cause.
In determining whether excessive prices are being charged or prices unjustifiably raised, the following pertinent economic circumstances and market factors will be considered, inter alia: (a) the price of the product or service, or the elevation thereof, is not justified by the behavior of the cost of the respective inputs or by the introduction of improvements in quality; (b) the price of the product previously produced, in the case of a successor resulting from changes that are not substantial; (c) the prices of similar products and services or the trend therein, in comparable competitive markets;
(d) the presence of any arrangement or agreement that results in an increase in the price of the good or service, or the costs thereof.
(1) Criminal offences include:
(i) Conspiracies, combinations, agreements or arrangements to lessen competition unduly in relation to the supply, manufacture or production of a product (Section 45);
(ii) Bid-rigging: bid-rigging is an agreement between parties whereby one or more bidders will refrain from submitting bids in response to a call for tenders, or bids are submitted which have been arranged between the parties (Section 47);
(iii) Knowingly engaging in a practice of discriminating against competitors of a purchaser of an article by granting a discount or other advantage to a purchaser that is not available to competitors purchasing articles of like quality and quantity (Section 50(1)(b));
(iv) Engaging in a policy of selling products in any area of Canada at prices lower than those exacted elsewhere in Canada, where the effect or design is to lessen competition substantially or eliminate a competitor (Section 50(1)(b);
(v) Engaging in a policy of selling products at unreasonably low prices where the effect or design is to lessen competition substantially or eliminate a competitor (s. 50(1)(c));
(vi) Granting to a purchaser an allowance for advertising or display purposes that is not offered on proportionate terms to competing purchasers (Section 51);
(vii) Attempting to influence upward or to discourage the reduction of the price at which another person supplies or advertises a product, or refusing to supply or otherwise discriminating against anyone because of that person's low pricing policy (Section 6l(1));
(viii) Attempting to induce a supplier to refuse to supply a product to a particular person because of that person's low pricing policy (Section 61(6)).
Other provisions relate to the implementation of foreign directives, agreements relating to participation in professional sport, agreements among banks, and misleading advertising or deceptive marketing practices.
(2) Civil reviewable matters include:
(i) Mergers: the Act applies to every merger in Canada, irrespective of whether ownership or control lies with Canadians or foreigners. A merger which is believed to prevent or lessen competition substantially may be taken to the Competition Tribunal for review and the application of remedies (Section 92).
(ii) Abuse of dominant position: This involves a situation where one or more persons substantially or completely control a class or species of business, and have engaged in or are engaging in a practice of anticompetitive acts which have the effect of preventing or lessening competition substantially. The Act provides a non-exhaustive list of types of conduct deemed to constitute anti-competitive acts (Section 78 and Section 79).
(iii) Refusal to deal: a situation where a person is substantially affected in his or her business or is precluded from carrying on business by the refusal, the person is willing and able to meet the usual trade terms of the supplier, the product is in ample supply, and the inabllity to obtain adequate supply is due to insufficient competition among suppliers in the market (Section 75);
(iv) Exclusive dealing: a situation where a purchaser is required to deal only or primarily in particular products or refrain from dealing in specific products as a condition of obtaining supply, the practice is engaged in by a major supplier or is widespread, and competition is or is likely to be lessened substantially (Section 77);
(v) Tied selling: a situation where a supplier as a condition of supplying a product requires a purchaser to purchase a second product or to refrain from using a particular brand of product in conjunction with the first product, the practice is engaged in by a major supplier or is widespread, and competition is or is likely to be lessened substantially (Section 77);
(vi) Market restriction: a situation where a supplier, as a condition of sale imposes restrictions as to the market in which his or her customer may deal, the practice is engaged in by a major supplier or widespread, and competition is or is likely to be lessened substantially (Section 77);
(vii) Delivered pricing: a situation where a supplier engages in a practice of refusing delivery of an article at any place where deliveries are made to other customers, the supplier is a major one or the practice is widespread, and the practice has the effect of denying a customer or potential customer an advantage that would otherwise be available in the market (Section 80 and Section 81);
(viii) Specialization agreements: the Tribunal may register an agreement on the application of any party where it finds that the implementation of an agreement is likely to bring about gains in efficiency and the Director has been given a reasonable opportunity to be heard; a registration in this manner exempts an agreement from the conspiracy and exclusive dealing provisions of the Act (Sections 85 through 90).
Other non-criminal reviewable matters relate to consignment selling, the implementation of foreign laws or directives and refusals to supply by foreign suppliers.
Agreements: Any contract, covenant, or practice undertaken consciously or unconsciously in a parallel manner by two or more businesses. The following agreements, among others, are considered contrary to free competition: 1. Those whose purpose or effect is to directly or indirectly fix prices; 2. Those whose purpose or efect is to determine discriminatory sale or marketing conditions for third parties; 3. Those whose purpose or effect is to divide the markets between producers or between dealers; 4. Those whose purpose or effect is to assign production or supply quotas; 5. Those whose purpose is to assign, divide or restrict the sources of supply of productive inputs; 6. Those whose purpose or effect is to limit technical developments; 7. Those whose purpose or effect is to condition the supply of a product to the acceptance of additional obligations which, because of their nature, were not contemplated in the purpose of the business, without prejudice to other provisions; 8. Those whose purpose or effect is to refrain from producing goods or services or affect their production levels; 9. Those whose purpose is bid or contest rigging or collusion or those whose effect is to divide contract awards, distribute tenders or fix the terms of proposals.
(Art. 47, Decree 2153/32).
Act: Any act by those who carry on economic activity. The following acts are considered contrary to free competition: 1. Infringe advertising standards as contemplated in the consumer protection statute; 2. Influence a firm to increase the prices of its products or services or give up its intention to lower prices; 3. Refrain from selling or rendering services to a firm or discriminate against the same when such an act may be understood as a retaliation to its price policy. (Article 48, Decree 2153/92).
Dominant Position: The ability to determine market conditions, directly or indirectly. (Article 45, numeral 5, Decree 2153/92).
The following conducts constitute abuse of a Dominant Position
Cuando exista Posición Dominante: 1. Lowering of prices under the cost when the purpose is to drive one or several competitors out of the market, prevent them from entering the market or prevent their expension; 2. The use of discriminatory conditions for equivalent operations placing a consumer or supplier in a disadvantageous situation before another consumer or supplier with analogous conditions; 3. Those whose purpose or effect is to condition the supply of a product to the acceptance of additional obligations, which because of their nature were not contemplated in the purpose of the business, without prejudice to other provisions; 4. Sale to a buyer under conditions different from those offered to another buyer when the intent is to reduce or eliminate competition in the market; 5. Sell or provide services in an area of the Colombian territory at a price different from the one offered in another area of the Colombian territory, when the intent or effect of the practice is to reduce or eliminate competition in that area and the price does not correspond to the transaction=s cost structure. (Article 50, Decree No. 2153/92).
The law prohibits four types of conduct: total monopolistic practices, partial monopolistic practices, concentrations and unfair trade practices.
The law defines total monopolistic practices as acts, contracts, agreements, understandings, or cooperation among competing economic agents for any of the following purposes: a) Fixing, raising, setting, or manipulating the buying or selling price at which goods are sold or bought in the market, or exchanging information for the same purpose or effect; b) establishing the obligation to produce, process, distribute, or sell a set or limited quantity of goods or provide a restricted or limited frequency, volume, or number of services; c) dividing, distributing, designating, or imposing portions or segments of a present or potential market for goods or services in terms of clients, suppliers, and time or space determined or to be determined; d) establishing, agreeing upon, or coordinating offers or abstention from bidding in public auctions, competitions, or sales. (Article 11).
Acts of this kind are prohibited by law and any person committing such acts shall be punished accordingly. (Article 11).
Partial monopolistic practices shall be considered those involving acts, contracts, agreements, understandings, or cooperation whose effect is or could be improper displacement of other economic agents from the market, substantial impediment to their market access, or the establishment of exclusive advantage for one or several persons in the following cases:
a) fixing, imposing, or establishing exclusive distribution of goods or services in terms of the subject, the geographical area, or specific time frames, including the division, distribution, or assignment of clients or suppliers, among economic agents who are not competitors against each other;
b) the setting of prices to other terms a distributer or provider must comply with when selling or distributing goods or providing services;
c) the sale or contingent agreement to sell, buy, acquire, or provide goods or services available, which are normally offered to third parties;
d) the sale or contingent agreement to not use, acquire, sell, or provide goods and services available, which are normally offered to third parties;
e) collusion among the various economic agents or the invitation to them to exercise pressure on some client or supplier to discourage him from a given act, or applying sanctions, or obliging him to act in a given manner;
f) the production or marketing of goods and services at prices below their normal value;
g) in general, any deliberate at that results in the withdrawal of competitors from the market or bars their access thereto. (Article 12).
For such practices to be deemed in violation of the Law, it must be proved that the economic agent committing them has substantial power over the relevant market, and that the practice in question relates to goods or services offered in or pertaining to that market (Article 13 of the Law).
In determining whether an economic agent has substantial power over the relevant market, the following factors must be considered:
a) Relative market share, and the ability to fix prices unilaterally, or to restrict supply in the relevant market to a substantial degree, such as to render it impossible for other economic agents, now or in the future, to counterbalance that power;
b) The existence of barriers to market entry, and circumstances that may be expected to alter those barriers or to affect supply by other competitors;
c) The existence of competitors, and their relative market power;
d) The ability of the economic agent in question, and of his competitors, to gain access to sources of relevant inputs;
e) Recent market behavior of the economic agent in question.
To the effects provided in the foregoing article, it will be considered among others, as facts, acts or conventions tending to impede the free competition, the following: a) Those reffered to production, such as the quotas distribution, reductions or stagnation of them; b) Those referred to transport; c) Those referred to commerce or distribution, whether wholesaler or retailer, such as quotas distribution or the assignment of market zones or exclusive distribution, by a sole person or entity, of a same article of several producers; d) Those referred to determination of prices of goods and services, as resolutions or imposing the same to others; e) Those referred to right to work or liberty of workers to be organized, joined or negotiated collectively, as the resolutions or acts of employers, labor unions or other groups or associations tending to limit or hamper the free course of collective bargaining within each enterprise or those hampering or hindering the legitimate entry to any activity or work, and f) Generally, any other measure tending to eliminate, restrict or hamper the free competition. (Article 2).
Abuse of a monopolistic market position is a restraint on competition. Monopolistic market position is taken to mean not only that of a monopoly, but that of any dominant position exercised by one or more firms, whether they are monopolies or not. (Article 6).
1. The spreading of false rumors or the use of any subterfuge to change natural prices that would result from the free trade in merchandise, stock, public or private rents, or any other things that are the subject of contracts;
2. Agreement among two or more business executives, producers, or vendors, in whatever form, to the effect that one or more of them stop producing certain articles, or to negotiate for the purpose of altering the prices thereof;
3. Hoarding of basic necessities for speculative purposes;
4. Using false weights and measures under any pretext in order to alter prices;
5. Forcing a consumer to buy unwanted merchandise in order to purchase an article of basic necessity (tying), using bait and switch, or selling phony merchandise. (Constitution, Criminal Code, and Law No. 13).
The following are considered to constitute monopoly acts contrary to the public economic and social interest:
1. The hoarding or withdrawal from market of basic necessities with a view to causing their prices to rise on the domestic market;
2. Any action or undertaking that prevents, or attempts to prevent, free competition in the production or trading of goods;
3. Agreements or pacts entered into without prior governmental approval, with a view to establishing or maintaining a privileged relationship or profiting therefrom;
4. The sale of goods of any kind at a price below their cost, in order to prevent free competition in the domestic market;
5. The export of basic necessities without obtaining such permission as may be required from the competent authority, if such export could lead to shortages or scarcity.
(Article 341 of the Criminal Code)
The initiation of false rumors, the spreading of false news or the use of any other such device to evade or distort the natural economic laws of supply and demand, or to disrupt normal market conditions, in such a way as to cause an unjustified increase or decrease in the value of the national currency, or in the level of current market prices, public or private revenues, stock market values, wages and salaries or any other item that is subject to contract. (Article 342 of the Criminal Code).
The following actions, among others, are considered to represent unfair competition:
1. Misleading or confusing the general public or any given person, by means of:
a) Inducing the employees of a client to mislead him with respect to the services or products supplied;
b) The making of false claims concerning the origin or quality of products or services, or the false attribution of honors, awards or distinctions for such products or services;
c) The use of customary markings or packaging to identify a false good as a genuine one, and the use of any falsification, adulteration or imitation for such purposes.
d) The spreading of false news that might mislead a buyer as to the reasons for offering special purchase conditions, such as announcing special sale prices as a result of liquidation or bankruptcy when such a situation does not in fact exist. If goods have been obtained through bankruptcy or liquidation proceedings, no announcement may be made of this fact in re-selling them.
Liquidation sales may only be announced when the firm in question is being wound up, the establishment or outlet is being closed, or the company is withdrawing from some branch of its business activity.
2. Any action that directly prejudices the interests of another business, whether or not it violates any contractual obligations towards that business, by:
a) Improper use or imitation of company names, trade marks, signs, logos, samples, patents or other items belonging to another company or to its establishments,
b) Spreading news that might discredit the products or services of another company,
c) Inducing the employees of another business to act against the interests of that business,
d) Obstructing customer access to the premises of another business,
e) Making direct, public comparisons of quality and prices between the company's own goods and services and those of other businesses, in which those businesses are mentioned by name or by another manner that clearly identifies them.
3. Causing direct prejudice to another business in violation of contractual obligations, as follows:
a) Using the name or services of someone who has committed himself to refrain from a given activity or business for a certain time, if the contract was duly registered in the Companies Registry for the place or region in which it is to have effect;
b) Hiring the services of a person who has been directly induced thereby to break a contract of employment with another employer,
4. Committing any other similar act intended either directly or indirectly to divert customers away from another business.
(Article 363 of the Commercial Code).
(1) For the purposes of this Act a provision of an agreement is an exclusionary prevision if:
(a) the agreement is entered into or arrived at between void persons of whom any two or more are in competition with each other; and
(b) the effect of the provision is to prevent, restrict or limit the supply of goods or services to, or the acquisition of goods or services from, any particular person or class or persons either generally or in particular circumstances or in particular conditions, by all or any the parties to the agreement or, if a party is a company, by an interconnected company.
(2) For the purposes of subsection (1), a person is in competition with another person if that person or any inter-connected company is, or is likely to be or, but for the rele-vant provision, would be or would be likely to be, in competition with the other person or with an interconnected company, in relation to the supply or acquisition of all or any of the goods or services to which that relevant provision relates.
(3) No person shall give effect to an exclusionary provision of an agreement. (Section 18).
(1) It is unlawful for any two or more enterprises, being suppliers of goods, to enter into or carry out any agreement by virtue of which they undertake:
(a) to withhold supplies of goods from dealers (whether parties to the agreement or not) who resell or have resold goods in breach of any condition as to the price at which those goods may be resold:
(b) to refuse to supply goods to such dealers except on terms and conditions which are less favourable than those applicable in the case of other dealers carrying on business in similar circumstances;
(c) to supply goods only to persons who undertake or have undertaken to do any of the acts described in paragraph (a) or (b).
(2) It is unlawful for any two or more enterprises referred to in subsection (1) to enter into or carry out any agreement authorizing:
(a) the recovery of penalties (however described) by or on behalf of the parties to the agreement from dealers who resell or have resold goods in breach of any such condition as described in subsection (1) (a); or
(b) the conduct or any proceedings in connection therewith. (Section 22).
(1) It is unlawful for any two or more enterprises, being dealers in any goods, to enter into or carry out any agreement by which they undertake:
(a) to withhold orders for supplies of goods from suppliers (whether parties to the agreement or not); (i) who supply or have supplied goods without imposing such condition as is described in section 72(1)(a); or (ii) who refrain or have refrained from taking steps to ensure compliance with such con-ditions in respect of goods supplied by them; or
(b) to discriminate in their handling of goods against goods supplied by those suppliers.
(2) It is unlawful for any two or more enterprises referred to in subsection (1) to enter into or carry out an agreement authorizing:
(a) the recovery of penalties (however described) by or on behalf of the parties to the agreement from the suppliers referred to in subsection (1); or
(b) the conduct of any proceedings in connection therewith. (Section 23).
Sections 22 and 23 apply in relation to an association whose members consist of or include:
(a) enterprises which are suppliers or dealers in any goods; or
(b) representatives of such enterprises, as they apply to an enterprise. (Section 24).
(1) Any term or condition of an agreement for the sale of goods by a supplier to a dealer is void to the extent that it purports to establish or provide for the establishment of minimum prices to be charged on the resale of the goods in Jamaica. (Section 25).
(1) Section 25 applies to patented goods (including goods made by a patented process) as it applies to other goods. (Section 26).
(1) It is unlawful for a supplier to withhold supplies of any goods from a dealer seeking to obtain them for resale on the ground that the dealer:
(a) has sold goods obtained either directly or indirectly from that supplier at a price below the resale price or has supplied such goods either directly or indirectly to a third party who had done so; or
(b) is likely, if the goods are supplied by him to sell them at a price below that price, or supply them either directly or indirectly to a third party who would be likely to do so;
(2) In this section "the resale price", in relation to a sale of any description, means:
(a) any price notified to the dealer or otherwise published by or on behalf of a supplier of the goods in question (whether lawfully or not) as the price or minimum price which is to be charged on or is recommended as appropriate for a sale of that description; or
(b) any price proscribed or purporting to be proscribed for that purpose by an agreement between the dealer and any supplier;
(3) Where under this section it would be unlawful for a supplier to withhold supplies of goods, it is also unlawful for him -to cause or procure any other supplier to do so. (Section 27)
(4) Subsection (3) does not apply where the proof that supplies were withheld consists only of evidence of requirements imposed by the supplier in respect of the time at which or the form in which payment was to be made for goods supplied or to be supplied. (Section 28).
(1) A person who is engaged in the business of producing or supplying goods shall not, directly or indirectly
(a) by agreement, threat, promise or any like means, attempt to influence upward or discourage the re-duction of, the price at which any other person supplies or offers to supply or advertises goods;
(b) refuse to supply goods to or otherwise discrimi-nates against any other person engaged in business;
(c) refuse to supply goods to or otherwise discrimi-nates against any other person engaged in business because of the low pricing policy of that other person.
(2) Subsection (1) does not apply where the person attempting to influence the conduct of another person and that other person
(a) are interconnected companies; or
(b) principal and agent.
(3) For the purposes of this section, a suggestion by a producer or supplier of goods of a resale price or minimum resale price in respect thereof, however arrived at, is proof of an attempt to influence the person to whom the suggestion is made, unless it is proved that the person making the suggestion, in so doing, also made it clear to the person to whom it was made that he was under no obliga-tion to accept it and would in no way suffer in his business relations with the person making the suggestion or with any other person if he failed to accept the suggestion.
(4) For the purposes of this section, the publication by a supplier of goods other than a retailer, of an advertise-ment that mentions a resale price for the goods is an at-tempt to influence upward the selling price of any person into whose hands the goods come for resale unless the price is so expressed as to make it clear to any person who be-comes aware of the advertisement that the goods may be sold at a lower price. (Section 34).
(1) Subject to subsection (2), it is unlawful for two or more persons to enter into an agreement whereby
(a) one or more of them agree or undertake not to submit a bid in response to a call or request for bids or tenders; or
(b) as bidders or tenders they submit in response to a call or request, bids or tenders that are arrived at by agreement between or among themselves.
(2) This section shall not apply in respect of an agree-ment that is entered into or a submission that is arrived at only by companies each of which is, in respect of every one of the others, an affiliate. (Section 36).
Misleading Advertising and Deceptive Marketing Practices
(1) A person shall not in pursuance of trade and for the purpose of promoting, directly or indirectly, the supply or use of goods or services or for the purpose of promoting, directly or indirectly, any business interest, by any means:
(a) make a representation to the public that is false or misleading in a material respect;
(b) make a representation to the public in the form of a statement, warranty or guarantee of perfor-mance, efficacy or length of life of goods that is not based on an adequate and proper test thereof, the proof of which lies on the person making the representation;
(c) make a representation to the public in the form of a statement, warranty or guarantee that services are of a particular kind, standard, quality, or quantity, or that they are supplied by any particular person or by any person of a particular trade, qualification or skill;
(d) make a representation to the public in a form that purports to be -
(i) a warranty or guarantee of any goods; or (ii) a promise to replace, maintain or repeat an article or any part thereof or to repeat or continue service until it has achieved a specified result-, if the form of purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that it will be carried out; (e) make a materially misleading representation to the public concerning the price at which any goods or services or like goods or services have been, are or will be ordinarily supplied. (Section 37).
Representation as to reasonable test and publication of testimonials:
A person shall not, for the purpose of Promoting, directly or indirectly, the supply or use of any goods, or for the purpose of promoting, directly or indirectly any business interest: (a) make a representation to the public that a test as to the performance, efficacy or length of life of the goods has been made by any person; or (b) publish a testimonial with respect to the goods, unless he can establish that (i) the representation or testimonial was previously made or published by the person by whom the test was made or the testimonial was given, as the case may be; or (ii) before the representation or testimonial was made or published, it was approved and permission to make or publish it was given in writing by the person who made the test or gave the testimonial, as the case may be, and it accords with the representation or testimonial previously made, published or approved. (Section 38)
A person shall not supply any article at a price that exceeds the lowest of two or more prices clearly expressed by him or on his behalf, in respect of the article in the quantity in which it is so supplied at the time at which it is so supplied: (a) on the article, its wrapper or container; (b) on anything attached to, inserted in or accompanying the article, its wrapper or container or any-thing on which the article is mounted for display or sale; or (c) on a display or advertisement at the price at which the article is purchased. (Section 39).
Sale at a bargain price:
(1) For the purposes of this section, "bargain price" means: (a) a price that is represented in an advertisement to be a bargain price by reference to an ordinary price or otherwise; or (b) a price so represented in an advertisement, that a person who reads, hears or sees the advertisement would reasonably understand to be a bargain price by reason of the prices at which the goods advertised or like articles are ordinarily sold.
(2) A person shall not advertise at a bargain price goods which he: (a) does not intend to supply; or (b) does not have reasonable grounds for believing he can supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which he carries on business, the nature and size of his enterprise and the nature of the advertisement.
(3) Subsection (2) does not apply where the person who is advertising proves that: (a) he took reasonable steps to obtain in adequate time a quantity of the article that would have been reasonable having regard to the nature of the advertisement, but was unable to obtain such a quantity by reason of events beyond his control that he could not have reasonably anticipated; (b) he obtained a quantity of the article that was reasonable having regard to the nature of the advertisement, but was unable to meet the demand therefor because that demand surpassed his reasonable expectations; or (c) after he became unable to supply the article in accordance with the advertisement, he undertook to supply the same article or equivalent article of equal or better quality at the bargain price and within a reasonable time to all persons who requested the article and who were not supplied therewith during the time when the bargain price applied and that he fulfilled the undertaking. (Section 40).
Sale above advertise price:
(1) A person who advertises goods for sale or rent in a market shall not, during the period and in the market to which the advertisement relates, supply goods at a price that is higher than that advertised.
(2) This section shall not apply in respect of: (a) an advertisement that appears in a catalogue or other publication in which it is prominently stated that the prices contained therein are subject to error if the person establishes that the price advertised is in error; (b) an advertisement that is immediately followed by another advertisement correcting the price mentioned in the first advertisement.
(3) For the purposes of this section, the market to which an advertisement relates shall be deemed to be the market to which it could reasonably be expected to reach, unless the advertisement defines market specifically by reference to a geographical area, store, sale by catalogue or otherwise. (Section 41).
Per se anticompetitive practices are contracts, agreements, arrangements, or combinations involving economic agents who compete among themselves, the purpose or effect of which is to: I. fix, raise, agree upon or manipulate the sale or purchase price of goods and services in the market place, or to exchange information for the purpose of having this effect; II. create a commitment to produce, process, distribute or sell only a limited quantity of goods, or to restrict the number, volume or frequency of services offered; III. divide, distribute, allocate or apportion segments of an actual or potential market for goods or services by means of customers, suppliers, or times for sales; or IV. establish, fix or coordinate bids, including agreement to abstain from participation in tender competitions or bidding in public auctions.
The acts referred to in this Article shall be legally void and the economic agents engaging in such activities shall be subject to the penalties established in this Act, in addition to any applicable criminal liability. (Article 9).
1. Absolute monopolistic practices: are any combinations, arrangements, agreements or contracts between competing or potentially competing economic agents, the purposes or effects of which are any of the following:
a. To fix, manipulate, agree upon or set the sales or purchase price of goods or services, or to exchange information for said purpose or outcome; b. To agree not to produce, process, distribute or market other than a small quantity of goods, or to provide a limited number, volume or frequency of services; c. To divide, distribute, assign or allocate portions or segments of an existing or potential market for goods or services, through patronage, suppliers, defined or definable time or spaces; or, d. To establish, agree upon or coordinate bids or nonparticipation in bidding, requests for proposals, competitions or public auctions. (Article 11)
In addition to their adverse economic effects, absolute monopolistic practices are inherently illicit. (Article 10)
2. Relative monopolistic practices: are unilateral actions, combinations, arrangements, agreements or contracts, the purpose or effect of which is to unduly supplant other agents in the respective market, to prevent them from gaining access or to establish exclusive privileges for one or more persons in the following instances:
a. Among noncompeting economic agents, the fixing, definition or establishment of the exclusive distribution of goods or services, by virtue of subject, geographic location or for given periods of time, including the division, distribution or assignment of customers or suppliers, as well as imposition of the obligation not to produce or distribute goods or services for a defined or definable period of time;
b. Setting the price or other conditions that a distributor or supplier must observe in reselling goods or providing services;
c. A sale or transaction conditional upon the purchase, acquisition, sale or provision of another good or service, usually different or distinguishable, or on bases of reciprocity;
d. A sale or transaction subject to the condition of not using or acquiring, selling or providing, goods or services produced, processed, distributed or marketed by a third party;
e. A unilateral action consisting of refusing to sell or provide, to specific persons, goods or services which are available and normally offered to third parties, except when the customer or prospective customer is in default of contractual obligations to the economic agent or it is known that said customer or prospective customer frequently returns or damages goods;
f. The agreement among various economic agents or an appeal to the latter to exert pressure on any customer or supplier for the purpose of deterring him from taking a given step, taking reprisals or forcing him to act in a certain way;
g. Any predatory action taken unilaterally or jointly by an economic agent in order to cause damages or squeeze a competitor out of a market, or to prevent a potential competitor from entering said market, when said action cannot reasonably be expected to generate or increase earnings, but rather to encourage the competitor or potential competitor to stop competing or to withdraw from the market, leaving the agent with substantial power or in a monopolistic position vis-ŕ-vis the respective market;
h. In general, any action that unduly harms or impedes the process of free economic competition and free competition in the production, processing, distribution, supply or marketing of goods or services. (Article 14).
Relative monopolistic practices can adversely affect the interests of consumers and are therefore prohibited. (Article 13).
3. Economic combination: is a merger, takeover or any act whereby corporations, partnerships, shares, partners' shares, trust funds, establishments or assets in general are combined, by suppliers, customers or other economic agents who compete with one another.
Economic combinations are prohibited which have or may have the effect of diminishing, restricting, harming or unreasonably impeding free economic competition and free competition with respect to equivalent, similar or substantially related goods or services. (Article 19).
Acts or conduct of agents not specifically protected by Law, that willfully impede or obstruct the entry or exit of firms, goods or services into any or all areas of the market are prohibited. (Article 6).
Prohibited are all actions designed to restrict free competition, induced third parties to refuse to supply goods or services; obstruct access to goods or services; or refuse to sell raw materials or factors inputs or offer services to others. (Article 7).
All conduct intended to manipulate factors of production, distribution, technological innovation, or investments in such a way as to be detrimental to free competition is prohibited. (Article 8).
Agreements or conventions entered into directly or through unions, associations, federations, cooperatives, and other groups subject to this Law which restrict or impede competition between their members are prohibited.
Agreements or decisions taken in merchant or civil associations which are contrary to the ends previously mentioned are also prohibited. (Article 9).