Federal Court of Appeals: lack of jurisdiction to review antitrust law issues

On December 21, 2006, Tribunal II of the Federal Court of Appeals on Civil and Commercial Matters (the “Tribunal”) stated that it has no jurisdiction to review antitrust law issues. Such decision follows the ones issued by the Argentine Supreme Court of Justice (the “Supreme Court”) which stated that the National Court of Appeals on Criminal Economic Matters is the appellate court which must review antitrust law decisions issued by the National Commission for the Defense of Competition (the “Commission”) and the Secretary of Domestic Trade (the “Secretary”).

In re: “Luncheon Tickets S.A. s/ Apel. Resol. Comisión Nacional de Def. de la Competencia”, the Tribunal stated that it was not the competent authority to review antitrust law issues when deciding the appeal filed by the Argentine Chamber of Distributors and Wholesale Supermarkets (Cámara Argentina de Distribuidores y Autoservicios Mayoristas, the “Chamber”) against a resolution issued by the Secretary and the Commission that rejected a claim filed by the Chamber against Luncheon Tickets S.A. (“Luncheon”) for anticompetitive practices.

Antitrust Law No 25,156 (the “Antitrust Law”) provided that the National Court of Appeals on Commercial Matters was the competent Court with jurisdiction on antitrust issues within the City of Buenos Aires. However, on September 16, 1999 by means of Decree No 1019/1999, the Executive switched the jurisdiction provided by the Antitrust Law to the “corresponding” Federal Courts. On January 25, 2001, the Executive issued Decree No 89/2001 ruling the Antitrust Law. This Decree also assigned jurisdiction to the Federal Court of Appeals on Civil and Commercial Matters.

Among the legal grounds of its decision, the Tribunal stated that pursuant to the Whereas of Decree No 1019/1999, the Antitrust Law regulates certain matters considered of public interest, such as markets, general economic interest and the welfare of consumers. The Tribunal understood that maintaining jurisdiction of Criminal Courts, as established in the former antitrust law, was consistent with the nature of antitrust rules. Consequently, the Tribunal followed the same line of reasoning of the Supreme Court in re: “Repsol Y.P.F. GLP Envasado en la Ciudad de San Nicolás s/ recurso de queja”, on March 21, 2006.

Additionally, the Tribunal stated that, in relation to the jurisdiction attributed to the Federal Court of Appeals on Civil and Commercial Matters, Decree No 89/2001 was unconstitutional. It expressed that the Executive exceeded its constitutional powers since it can not, through a regulatory decree, exercise jurisdictional powers specifically granted to the Argentine Congress.

Although the decision causes uncertainty, it is the first step on the path to resolve jurisdiction conflicts in favor of the Court of Appeals on Criminal Economic Matters as the competent court of appeals. Two other tribunals of the Federal Court of Appeals on Civil and Commercial Matters are still reviewing antitrust law cases. If these two tribunals do not follow the Tribunal’s path, litigation will face two different court of appeals resolving antitrust law appeals and, therefore, the Supreme Court will have to resolve the issue.

The Tribunal did not express its opinion with respect to other provisions of Decree No 89/2001, still not applied in any case, which could be judged as unconstitutional if they are submitted to court’s scrutiny in the future.

It would be advisable to review and update the Antitrust Law and its ruling regulations in order to profit from new trends in the EU and USA and include developments and legal constructions arising from local precedents both from the Commission and Argentine courts.