On May 9th, 2018, the House of Deputies finally approved the new antitrust bill after the Senate introduced minor amendments.
The bill was approved with 163 votes for and 74 votes against it.
The main changes that the new antitrust law provides vis-a-vis the former antitrust law are:
- Creation of a new independent, decentralized and autonomous Antitrust Agency which will be known as “Agencia Nacional de Competencia” –ANC- (“National Competition Agency). The ANC will consist of a Court for the Defense of Competition (5 members), a Secretariat of Anticompetitive Conducts and a Secretariat of Economic Concentrations. Each member will be appointed and/or removed by the Congress. Currently, the Antitrust Commission depends on the Executive Branch.
- Concerted conducts among competitors (“hard core cartels”) shall be deemed as practices completely and absolutely restrictive of competition.
- Interlocking directorates, under certain circumstances, shall be deemed as anticompetitive practices.
- More powers to the ANC in order to conduct and investigate anticompetitive practices.
- Creation of a Leniency Program that complies with international standards directed to deter concerted actions.
- New provisions for the determination of fines, which now takes into account the turnover of the company involved in anticompetitive practices (i.e. up to 30% of the affected product´s turnover multiplied by the years of duration of the conduct–such amount may not exceed 30% of overall turnover-, or twice the profits obtained from such illegal practice).
- Legal actions to seek damages’ compensation for violations of the Antitrust Law shall be specifically contemplated.
- New pre-merger control. Notable increase of notification thresholds that now intend to discharge minor transactions. (Pre-merger control will become in force one year after the creation of the ANC).
- Fast track procedure for transactions that clearly do not raise antitrust concerns.
- Creation of a Court of Appeals in Antitrust Matters, as the Court authority in appeals to the ANC´s rulings.
May 5th, 2018.