Cartel Accusation rejected by the Antitrust Commission

On October 21, 2008, the Argentine Antitrust Commission (“Antitrust Commission”) rejected an accusation initiated by Baro Gas against Repsol YPF Gas S.A. (“YPF Gas”) alleging an infringement to the Argentine Antitrust Law (“Antitrust Law”).

After assessing the facts presented by Baro Gas, the Antitrust Commission concluded that the claim was based on an alleged cartel that intended to divide the market. The clients that would have suffered the cartel were not the final consumers but the distributors; therefore, the alleged infringement also involved vertical restrictions (refusal to deal). The Antitrust Commission rejected the accusation after a thorough analysis of all the evidence gathered in the proceedings.

On September 26, 2000 Baro Gas filed a claim before the Antitrust Commission asserting that YPF Gas refused to continue the provision of liquid gas. It explained that after the acquisition of YPF Gas by Repsol YPF, Mr. Cosentino was appointed by YPF Gas as its exclusive distributor in the City of San Nicolas. Mr. Cosentino was a competitor of Baro Gas.

The other producer of liquid gas that performed sales in the City of San Nicolás was Total Gaz Argentina S.A. (“Total”). The distributor of Total within the city of San Nicolás was Riva Gas S.R.L. (“Riva”).

Baro Gas further claimed that YPF Gas offered to sell liquid gas through Mr. Cosentino and not directly as it used to do. Baro Gas stated that it did not accept to buy from Mr. Cosentino and that YPF Gas, by exercising its dominant position, prevented Baro Gas from buying liquid gas from other companies (e.g. Total).

The Antitrust Commission assessed a potential cartel between YPF Gas and Total. The cartel would have, of necessity, implied a refusal to deal practice.

The Antitrust Commission carried out several expert appraisals including an accounting expert appraisal performed on the accounting books of Baro Gas and an accounting expert appraisal performed on the accounting books of YPF Gas.

The accounting expert appraisal on Baro Gas’ accounting books proved that Baro Gas bought liquid gas from Repsol YPF until May 2000. Further, it was evidenced that the accounting books records did not include all the information requested by applicable commercial law. Therefore, the Antitrust Commission understood that is not possible to affirm that the accounting books included all the acquisitions of liquid gas executed by Baro Gas. Finally, it was shown that Baro Gas bought on seven different occasions liquid gas from Riva Gas and from three other companies outside the City of San Nicolás.

The accounting expert appraisal on YPF Gas accounting books demonstrated that Baro Gas owed money to YPF Gas. This evidenced that YPF Gas removed Baro Gas as its distributor due to a commercial debt.

The Antitrust Commission concluded that Baro Gas had access to the liquid gas market in the City of San Nicolas. The Antitrust Commission stated that the alleged cartel was not evidenced since there were convincing elements to state that the claimant was able to buy liquid gas after it was removed by YPF Gas as its distributor.

The Antitrust Commission performed a thorough investigation on the different facts and evidence presented by the defendants. This demonstrates that the Antitrust Commission took an active role in the procedure and performed a proper analysis of the evidence. Finally, this resolution also confirmed prior case-law from the Antitrust Commission that stated that commercial disputes among private parties were not to be assessed under the antitrust regime.