Competent Court to review antitrust matters: a pending issue

On April 16, 2010, the Argentine Supreme Court of Justice (the “Supreme Court”) decided that the Court of Appeals on Economic Criminal Matters (the “Criminal Court”) was the competent court within the area of the City of Buenos Aires to review an appeal against a resolution issued by the National Commission for the Defense of Competition (the “Antitrust Commission”) pursuant to the Antitrust Law No. 25,156 (the “Antitrust Law”). This case is relevant as, until now, there were two different court of appeals that reviewed antitrust matters in the City of Buenos Aires.

Under the former antirust law, the Criminal Court was competent to review antitrust matters. This changed with the enactment of the Antitrust Law, which set out that the National Court of Appeals on Commercial Matters (the “Commercial Court”) was the competent court of appeals. 

However, by means of Decree 1019/99, the Executive Power decided to take away the competence of the Commercial Court to review antitrust matters, before passing the Antitrust Law. Then, the Executive Power issued Regulatory Decree 89/01 (“Decree 89”) and established that, within the City of Buenos Aires, the Court of Appeals on Federal Civil and Commercial Matters (the “Federal Court”) was competent to review antitrust matters.

The discussion regarding the competent court is focused on: (i) the nature of antitrust matters (clearly criminal in its origin but decriminalized with the enactment of the Antitrust Law); (ii) the fact that the Criminal Court gained a lot of experience on antitrust matters since it was the competent court under the former law; (iii) the validity of granting competition by means of a regulatory decree of the Executive Power; and (iv) the fact that the Criminal Court and the Federal Court declared themselves competent to review antitrust matters. 

In this case, the Federal Court granted a motion filed by Telecom Italia SpA and Telecom Italia International N.V. (the “Parties”) to remove the Criminal Court from the analysis of an appeal against a resolution issued by the Antitrust Commission. The Parties requested that the appeal filed against resolution No. 64/09 issued by the Antitrust Commission be decided by the Federal Court. The Federal Court requested the Criminal Court to restrain itself from hearing the case; however, the Criminal Court rejected the request and maintained its competence to resolve the appeal.

Since both Courts declared themselves competent to resolve the appeal -and even in all the cases derived from the application of the Antitrust Law- the Supreme Court had to resolve this conflict of jurisdiction (Section 24, subsection 7, Decree-Law 1285/58). 

The General Attorney stated that the competent Court should be the Criminal Court and grounded this statement considering that said Court acquired a lot of experience on antitrust issues since it was the competent Court under the previous antitrust regime. Additionally, it stated that this solution was also coherent with Section 56 of the Antitrust Law that establishes that the Criminal Code and the Criminal Procedural Code shall be applied in those cases that are not ruled by the Antitrust Law. As regards the provisions of Decree 89, which sets out the competence of the Federal Court, the General Attorney stated that the establishment of Courts’ jurisdiction was a reserved matter of the Congress, pursuant to the provisions of the Argentine Constitution. 

Although the Supreme Court reached the same conclusion as the General Attorney, it used different arguments. The Supreme Court did not adopt a final position regarding which is the competent Court within the City of Buenos Aires to review appeals against resolutions of the Antitrust Commission, since it considered that the case had specific circumstances. 

The Supreme Court resolved this case applying the principle of perpetuatio jurisdictionis. It argued that, since the Parties did not appeal a decision issued by the Criminal Court that resolved another appeal filed against a different resolution issued by the Antitrust Commission in the same case, they agreed with the competence of the Criminal Court. 

The Supreme Court resolved that all the appeals and issues arising from this case had to be resolved by the Criminal Court, which had already intervened and issued a decision in this case. 

One of the members of the Supreme Court, Mr. Enrique Petracchi, issued a dissident vote. He claimed that the competent Court to decide on antitrust issues was the Federal Court because that was established in Decree 89. He stated that the jurisdiction of the Federal Court to decide on antitrust issues had been unequivocally granted by Decree 89 and that it should prevail, unless it is expressly declared unconstitutional. 

This precedent shows that, although the Supreme Court established that the Criminal Court was the competent Court to decide in this case, this decision was based on the specific circumstances of the case and does not seem to set out a precedent for all antitrust cases. Unfortunately, the Supreme Court has lost a timely opportunity to finally decide which should be the competent Court to review resolutions of the Antitrust Commission.