Can Resolutions on Advisory Opinions Be Challenged by Means of an Appeal?

Introduction

In a recent decision (“Siderar S.A.I.C. and others re Advisory Opinion request”), the Court of Appeals on Economical Criminal Matters (the “Court of Appeals”) concluded that the appeal filed against a resolution issued by the Secretary of Domestic Trade (the “Secretary”) by means of which it ordered the notification of a transaction had been erroneously granted. This sentence narrows the scope of the resolutions issued by the Secretary or the National Antitrust Commission (the “Antitrust Commission”) that may be appealed solely to those specifically listed under Section 52 of the Law No. 25,156 (the “Antitrust Law”).

Analysis

On December 28, 2012, Room B of the Court of Appeals issued a decision by means of which it rejected the appeal filed by Siderar S.A.I.C., Prosid Investments S.C.A., Ternium Investments S.Á.R.L., Confab Industrial S.A., VBC Energía SA., Caixa dos Empregados da Usiminas, Metal One Corporation, Mitsubishi Corporation Do Brasil S.A., Nippon Steel Corporation, Nippon Usiminas CO. LTD. and Votarantim Industrial S.A. (the “Appealing Parties”) against Resolution No 59/2012 issued by the Secretary (the “Resolution”).

The Appealing Parties had requested the Antitrust Commission to confirm whether the transaction involving the acquisition of Usinas Siderúrgicas de Minas Gerais (the “Proposed Transaction”), a company located in Brazil which performed exports into Argentina, should undergo the merger review process set out by the Antitrust Law. According to the Appealing Parties, the Proposed Transaction had no effects within Argentina. Nevertheless, the Secretary concluded that such was not the case and stated in the Resolution that the Proposed Transaction was subject to undergo the mandatory merger review process.

The members of the Court of Appeals did not analyze the arguments provided by the Appealing Parties questioning the conclusion reached by the Secretary in the challenged Resolution. Instead, the analysis of the Court of Appeals was focused on the ability of the parties to an Advisory Opinion to challenge the resolution to be issued under said procedure.

On the right to appeal of a resolution issued by the Secretary, the Court of Appeals stated that pursuant to Section 52 of the Antitrust Law only the following resolutions may be subject to an appeal: (a) those that order the imposition of sanctions; (b) those ordering to cease or to refrain from performing certain conducts; (c) those rejecting or conditioning a transaction subject to merger review control; and (d) those that resolve to dismiss a claim for anticompetitive behavior. Therefore, considering the provision included under Section 52 of the Antitrust Law, the members of the Court Appeals concluded that the Resolution was not among those that could be challenged by means of an appeal.

Notwithstanding the above, the members of the Court of Appeals acknowledged that Resolution No. 26/2006 of the Secretary of Technical Coordination of the Ministry of Economy (the “Resolution No. 26/2006”) which governs the procedure involving the request of an Advisory Opinion specifically states that “…The resolution to be issued as a consequence of the request of an advisory opinion may be appealed…” and that “…the Federal Civil and Commercial Court of Appeals of the City of Buenos Aires or the Federal Court corresponding to each province in Argentina shall have the authority to decide on said appeals…”.

Nevertheless, the members of the Court of Appeals understood that although Resolution No. 26/2006 may be validly applicable within the administrative office in charge of applying the Antitrust Law, said resolution is not binding to said Court of Appeals. Pursuant to the opinion of the members of the tribunal, the creation of tribunals inferior to the Supreme Court of Justice, the determination of their members and the matters of their jurisdiction is a capacity solely reserved to the Argentine Congress as per Sections 75, subsection 20 and Section 108 of the Argentine Constitution.

This case is not a matter of whether the resolution issued in connection to a request for an Advisory Opinion would give grounds to an appeal, as has been analyzed in the sentence issued by the Federal Civil and Commercial Court of Appeals on the Talanx International AG and others v. Antitrust Commission case (“the Talanx case”). Rather, it addresses whether the possibility of appealing those resolutions even exists. The decision of the Court of Appeals in this case would also entail that Resolution No. 26/2006 is, as far as it contradicts Sections 75, subsection 20 and Section 108 of the Argentine Constitution, unconstitutional.

Conclusion

This precedent creates a new scenario regarding the request of Advisory Opinions, since it entails that the resolution issued on the grounds of said request could not be challenged before a court of Law.

As such, this precedent has much deeper consequences than the Talanx case according to which the result of the request for an Advisory Opinion would give no grounds for appeal, since this case now creates a scenario in which there would be no grounds for appeal on any type of resolutions issued within the framework of Advisory Opinions, which could render the procedure toothless for the interested parties.