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C.10-12 CS filed a lawsuit against the Administrative Contentious Tribunal
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C.10-12 CS filed a lawsuit against the Administrative Contentious Tribunal

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The Competition Superintendence (CS) filed a lawsuit before the Constitutional Tribunal of the Supreme Court of Justice (SCJ) for the violation of the constitutional right to legal security committed …

The Competition Superintendence (CS) filed a lawsuit before the Constitutional Tribunal of the Supreme Court of Justice (SCJ) for the violation of the constitutional right to legal security committed by the Administrative Contentious Tribunal (ACT). Said Tribunal declared illegal the CS´ decision not due to the competition authority´s own actions, but because the ACT deemed illegal the judicial search warrant issued by the during the administrative sanctioning procedure.

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  • 1. Press Release C. 10-12El Salvador, March 7th, 2012. CS filed a lawsuit against the Administrative Contentious TribunalThe Competition Superintendence (CS) filed a lawsuit before the Constitutional Tribunal of theSupreme Court of Justice (SCJ) for the violation of the constitutional right to legal security1committed by the Administrative Contentious Tribunal (ACT). Said Tribunal declared illegal theCS´ decision not due to the competition authority´s own actions, but because the ACT deemedillegal the judicial search warrant issued by the during the administrative sanctioningprocedure. The CS filed a lawsuit against the Administrative Contentious “The legal security right set forth in the Tribunal (ACT) who declared illegal a resolution issued by the CS on Republic´s September 4th, 2008, through which the Salvadoran competition Constitution has been authority imposed sanctions to a wheat flour manufacturer Molinos violated”, emphasized de El Salvador (MOLSA) and another economic agent, after proving the Competition the existence of an agreement between competitors prohibited by Superintendent, the Salvadoran Competition Law (CL) pursuant to Article 25 letter d). Francisco Diaz Rodriguez, after filing According to the files, MOLSA, afternoon being sanctioned and the lawsuit against the fined by the CS, sued the Board of Directors (BD) of the CS before Administrative the Administrative Contentious Tribunal of the SCJ, allegeding the Contentious Tribunal illegality of the fine and of the order to cease the anticompetitive of the SCJ. conduct.In its writ, MOLSA alleged a series of arguments that could not be examined by the ACT,amongst others, that the judicial search warrant issued by the First Civil Judge of San Salvador,authorizing the raid [set forth in Articles 13 letter r) and 44 of the CL] of said economic agent´sestablishment, should have been ordered pursuant to the Criminal Procedural Code.In accordance to the CS´ declarations, on December 1st, 2011, the ACT ruled in favor of1Article 2 of the Salvadoran Constitution states: “Every person has the right to life, physical and moral integrity,freedom, security, work, property and possession, and to be protected in their conservation and defense…”.
  • 2. MOLSA declaring illegal the resolutions through which the CS imposed the fine and dismissedthe revision recourse filed by MOLSA.What strikes as odd in the ACT´s sentence is that it declared illegal the CS´ decision notbecause of the competition authority´s own actions, but because said Tribunal deemed illegal ajudicial ruling issued during the administrative sanctioning procedure; judicial ruling which isoff limits the Tribunal´s own legal competence: the judicial search warrant authorizing the raidof MOLSA´s establishment.Pursuant to the aforementioned, even though the CS did not execute the ruling which wasdeclared illegal, the ACT has ordered the CS to replace the entire administrative sanctioningprocedure against MOLSA beginning from the last executed valid act, that is, before the raid ofMOLSA´s establishment.After reviewing the ACTS´s decision, the CS identified and determined that said ruling violatedthe right to legal security set forth in Article 2 of the Republic´s Constitution, as set forth below: 1. Arbitrariness of public power. The ACT ruled regarding a judicial decision with respect to which said Tribunal had no competence; being a judicial mandate (judicial search warrant) it is a strictly judiciary act and not and administrative one. The ACT exceeded its legal competence when pretending to analyze the legality of the contested resolutions, ruled a propos the legality of a judicial decision and not regarding an administrative one, lacking the legal competence to issue such decision and without reasoning said ruling. 2. Obligation to motivate judicial rulings. The ACT did not explain two aspects: a. The reasons why the judicial search warrant was deemed as an exceptionally administrative act, with respect to which the above cited Tribunal has competence to examine and rule, and not a purely judiciary act. b. The reasons why the ACT considered that the legal framework applicable to a resolution issued by a Civil and Commercial Judge executed during the course of an administrative sanctioning proceeding pursuant to the Competition Law, was the Criminal Procedural Code in force at that time, which lead the ACT to conclude that said Judge´s decision did not comply with the requirements set forth in the Competition Law and its regulations.BackgroundApril 1st, 2008 The CS initiated a sanctioning procedure against MOLSA and HARISA.September 4th, 2008 The BD of the CS determined that MOLSA and HARISA had allocated the wheat flour market.October 14th, 2008 The BD of the CS dismissed the revision recourse field by MOLSA.October 28th, 2008 MOLSA sued the BD of the CS before the Administrative Contentious Tribunal (ACT).December 1st, 2011 The ACT notified the sentence in favor of MOLSA.January 19th, 2012 The ACT notified said sentence to the CS.March 7th, 2012 CS filed a lawsuit against the ACT before the Constitutional Tribunal of the SCJ.