The Executive Branch Pushes for Reforms to the Antitrust Law

On August 5, 2014, the National Executive Power (the “PEN”) sent to the Argentine Congress Bill No. 1250 (whose main objective is to amend Law No. 25,156), among other bills (also see “The Executive Branch Pushes for Reforms to the Supply Law” and “Consumer Relations: The Executive Branch Introduced a Bill on Conflict Resolution” in this edition of Marval News).  It must be highlighted that amendments made in issues related to antitrust are referred almost exclusively to conducts. In general aspects, mergers will not be affected, excluding the case of the jurisdiction where the parties will have to file their appeals.
We will hereby analyze the amendments that the Bill proposes to the antitrust system that is currently applicable.

1. Analysis of the proposed amendments
The disappearance of an independent Tribunal
From an antitrust point of view, the most significant amendment is the disappearance of the Antitrust National Tribunal (the “Tribunal”) as an independent authority, which was created by means of Law No. 25,156 but has never been constituted.
In practice, the Tribunal’s place was occupied by the Antitrust Commission of old Law No. 22,262 (the “CNDC”). As time went on, the work of the CNDC became complicated by virtue of the nullities admitted by both the federal civil and commercial courts and the economic criminal courts, due to the lack of constitution of the Tribunal.
Replacing the Tribunal, the Bill designates the Trade Secretariat (“the Secretariat”), which will assume the role of the Tribunal. The CNDC will continue existing as an agency under the scope of the Secretariat. 
Pursuant to the Bill, the powers that the Tribunal had, in accordance to Law No. 22,156, will be divided between the Secretariat and the CNDC, and most will remain under the orbit of the Secretariat. Among the most important are:  to impose penalties, to carry out investigations, to file motions before the courts, to require preliminary measures to the competent judge, to carry out raids with prior judicial injunctions.
In contrast, the CNDC will have limited powers: to investigate markets, carry out expert reports, issue opinions and recommendations, and to carry out all kinds of tasks ordered by the Secretariat.
If the Secretariat replaces the Tribunal, it will be responsible for analyzing economic concentrations, meaning that the CNDC would cease to perform this task. But as the Bill establishes that the Secretariat has the power to delegate the performance of certain tasks to the CNDC, it is probable that the Secretariat will delegate the analysis of economic concentrations in the CNDC. Nevertheless the Bill generates confusion in this matter.
The creation of a new jurisdiction
Another important amendment is the creation, in the judicial scope, of the Federal and National Justice in Consumer Relations. Said jurisdiction will solve all cases related to consumer protection, antitrust and fair trade.
This jurisdiction will include eight district courts and a Court of Appeals. The Court of Appeals will be composed of two chambers with three judges each.
In Antitrust issues, the Court of Appeals will act solely as a reviewing body of the administrative penalties imposed in accordance to Law No. 25,156.
Pay and appeal
The Bill also amends the regime of the appeals, modifying their effects, subjects and terms.
The most important change – in practice – is the one that amends the effect with which appeals will be granted. So far, Section 52 of Law No. 25,156 establishes that, in the case of a fine, the appeal will be granted with a stay of execution.
By amending Section 52 of Law No. 25,156, the Bill establishes that, in the case of a fine, the appellant will have to deposit the amount before appealing, under warning of dismissal of the appeal, unless the prior payment of the fine causes an irreparable harm to the appellant. But the Bill does not establish a clear criteria regarding this situation.
As such, the appeal will lose its stay effect, as happens with other sanctions imposed by the law.
Regarding terms, the bill shortens the term to appeal and file the arguments supporting the appeal from 15 to 10 working days.
The applicable rules
Finally, the Bill proposes the application of Administrative Procedural Law No. 19,549 (the “APL”)  to replace the application of criminal rules (Criminal Code and Criminal Procedure Code), for those cases not foreseen by law.
Although it modifies Section 56, the Bill does not abrogate Section 57 of Law No. 25,156, which expressly prohibits the application of the APL. Therefore, there is an important contradiction between these Sections of the Bill. The APL will only be applicable in those proceedings before the CNDC and the Secretariat. However, in the case of appeals, pursuant to Section 106 of Decree No. 1759/1972, the National Civil and Commercial Procedure should be applied.

2. Conclusions
The Bill solves the problematic issue related to the creation of the Tribunal, since its function will remain under the scope of the Secretariat. Therefore, this body loses its independent feature, as was conceived by Law No. 25,156. The bill legitimizes the format of antitrust authority applied by Law No. 25,156 since 1999.
The Bill does not clarify what will be the functioning rules for the CNDC. Currently the CNDC analyzes the cases under trial, but the Bill establishes that the Secretariat will –in the future- enact the functioning rules.
The requirement to pay the fine as a necessary condition for the appeal (unless this would cause an irreparable harm to the appellant) could be considered a violation of constitutional rights, due to the maximum amount of the fines established in the Law No. 25,156.
Finally, it is important to mention that the amendment of the applicable rules to the procedure will be a challenge, since the CNDC has been applying criminal procedural rules for 15 years.