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Cartel Template 2013 - Superintendencia de Competencia

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Información consolidada correspondiente al año 2013 con la información básica de cómo se investigan los acuerdos entre competidores y todas las actuaciones relacionadas a ello.

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Cartel Template 2013 - Superintendencia de Competencia

  1. 1. ANTI-CARTEL ENFORCEMENT TEMPLATE CARTELS WORKING GROUP Subgroup 2: Enforcement Techniques El SALVADOR Update: 13 August, 2013
  2. 2. ICN ANTI-CARTEL ENFORCEMENT TEMPLATE IMPORTANT NOTES: This template is intended to provide information for the ICN member competition agencies about each other’s legislation concerning hardcore cartels. At the same time the template supplies information for businesses participating in cartel activities about the rules applicable to them; moreover, it enables businesses which suffer from cartel activity to get information about the possibilities of lodging a complaint in one or more jurisdictions. Reading the template is not a substitute for consulting the referenced statutes and regulations. This template should be a starting point only. 1. Information on the law relating to cartels A. Law(s) covering cartels: Ley de Competencia; Legislative Decree 528 of november 26 th , 2004, enforced since January 1 st , 2006. Amended by means of the Legislative Decree 436 of October 18 th , 2007. Available at: http://www.sc.gob.sv/pages.php?Id=948 in spanish B. Implementing regulation(s) (if any): Reglamento de la Ley de Competencia; Executive Decree 126 of December 5 th , 2006, enforced since December 13 th , 2006. Amended by means of the Executive Decree 63 of May 29 th , 2008. Available at: http://www.sc.gob.sv/pages.php?Id=948 in spanish C. Interpretative guideline(s) (if any): There is a guideline for detecting bid rigging, available in spanish at: http://www.sc.gob.sv/pages.php?Id=751 D. Other relevant materials (if any): www.sc.gob.sv - Spanish
  3. 3. 2. Scope and nature of prohibition on cartels A. Does your law or case law define the term “cartel”? If not, please indicate the term you use instead. El Salvador´s Competition Law does not defines the term "Cartel". However, as established in art. 25 of El Salvador´s Competition Law, it is a violation to the law, the agreements amongst competitors. (These practices include among others: price fixing, fixing or limiting quantity output, bid rigging and market division.) B. Does your legislation or case law distinguish between very serious cartel behaviour (“hardcore cartels” – e.g.: price fixing, market sharing, bid rigging or production or sales quotas 1 ) and other types of “cartels”? No, it does not. C. Scope of the prohibition of hardcore cartels: In Salvadorean Law nor other salvadorean regulation, there are no exceptions, exclusions and defenses for particular industries or sectors. D. Is participation in a hardcore cartel illegal per se? Agreements amongst competitiors are considered illegal per se E. Is participation in a hardcore cartel a civil or administrative or criminal offence, or a combination of these? Participation in a cartel is only an administrative infraction 3. Investigating institution(s) A. Name of the agency, which investigates cartels: Superintendencia de Competencia B. Contact details of the agency: Edificio Madre Selva, Primer Nivel Calzada El Almendro y 1era Avenida el Espino Antiguo Cuscatlán, La Libertad, El Salvador, C.A. Tel. (503) 2523 6600, Fax. (503) 2523 6625 Website: www.sc.gob.sv 1 In some jurisdictions these types of cartels – and possibly some others – are regarded as particularly serious violations. These types of cartels are generally referred to as “hardcore cartels”. Hereinafter this terminology is used.
  4. 4. C. Information point for potential complainants: Superintendencia de Competencia Francisco Díaz Rodríguez, Superintendent Tel. (503) 2523 6600, Fax. (503) 2523 6625 email: fdiaz@sc.gob.sv Regina Vargas, Head of Advocacy Tel. (503) 2523 6600, Fax. (503) 2523 6625 email: rvargas@sc.gob.sv D. Contact point where complaints can be lodged: See points 3.B and 3.C E. Are there other authorities which may assist the investigating agency? If yes, please name the authorities and the type of assistance they provide. Under the Superintendent attributions, he/she can inform and request the intervention of the Attorney General of the Republic and the judiciary, as the case may be, when the circumstances make it necessary. Also, it may request authorities in El Salvador or abroad to provide information necessary to investigate a case 4. Decision-making institution(s)2 [to be filled in only if this is different from the investigating agency] A. Name of the agency making decisions in cartel cases: Superintendencia de Competencia (Board of Directors) B. Contact details of the agency: Edificio Madre Selva, Primer Nivel Calzada el Almendro y 1era. Avenida el Espino Antiguo Cuscatlán, La Libertad, El Salvador, C.A. Tel. (503) 2523 6600, Fax. (503) 2523 6625 www.sc.gob.sv (website in spanish) C. Contact point for questions and consultations: Regina Vargas, Head of Advocacy (Competition Advocacy Intendant) rvargas@sc.gob.sv D. Describe the role of the investigating agency in the process leading to the sanctioning of the The proceeding is open by the Competition Superintendent by complaint or ex-officio. Investigative Phase: The Investigations Intendency is in charge of the preliminary investigation were they evaluate the 2 Meaning: institution taking a decision on the merits of the case (e.g. prohibition decision, imposition of fine, etc.)
  5. 5. cartel conduct. existance of an anticompetitive conduct. Once the preliminary investigation report establishes that there might be an existance of an anticompetitive conduct, the Superintendent orders the initiation of the case and starts a Formal Investigation also encharged to the investigations intendency.The parties involved have the opportunity to present their allegations and shall propose the evidence to be of use and the facts to be proven by them. The Superintendency may require information related to the case and the requested are obligated by law to present it. At the end of the Formal Investigation, the investigations intendency present a report of the case to the Board of Directos for judgement. The judgement is done by the Board of Directors and the decision taken is established in a written resolution with the pertinent justifications. The resolution will be effective from the day following itsnotification. The procedure applies to any anticompetitive conduct and therfore to cartel cases. E. What is the role of the investigating agency if cartel cases belong under criminal proceedings? The Superintendencia de Competencia handles all competition cases incluing agreements among competitors on administrative proceedings, there is no criminal prosecution. 5. Handling complaints and initiation of proceedings A. Basis for initiating investigations in cartel cases: Complaint or ex officio B. Are complaints required to be made in a specific form (e.g. by phone, in writing, on a form, etc.)? Complaints must be in written and has to contain in a clear and detailed form the facts and the legal provision that is infringed, as well as presumption and elements that can identify the assumed anticompetitive practice. In cartel cases article 25 of the competition law is the one that has to be invoked. The written complain must contaín the following: a) Name, denomination or corporate name of the complainant; b) Name of the legal representative and documents which accredit said representative´s legal capacity, domicile of service of notices or notifications and persons authorized for such effects; c) Name, denomination or corporate name, and if known, the domicile of the alleged infractor; d) Description of the facts that constitute hypothetical situation contemplated in the previous article, and legal provisions to base the petition on;
  6. 6. e) Elements which allow the definition of the relevant market and determine the dominant position of the alleged infractor in said market and, in case of knowing it, identification of the related economic agents in the relevant market; f) Elements of why the existence of some practices is considered, as contemplated in Arts. 25 of the Law; g) Relate the documents accompanying the complaint and the elements of conviction offered, and related precisely to the alleged facts. The complainant may provide any data that may allow the identification of other economic agents that may result affected by the anticompetitive practice or economic concentration without authorization; also, the complainant may provide any element considered important or indicate the place or archive where they are, in case of not having them. The original of the complaint and the annexed documents, must be filed with as manycopies as interested parties are involved in the procedure, and an additional set of copies C. Legal requirements for lodging a complaint against a cartel: Anyone who feels that his or her economic activity is being affected by an anticompetitive practice, or anyone that knows that an anticompetitive practice is taken place, can file a complaint at the Competition Superintendency. D. Is the investigating agency obliged to take action on each complaint that it receives or does it have discretion in this respect? All the complaints filed at the Competition Superintendency are revised in a preliminary investigation where it is determined if there is circumstantial evidence that an anticompetitive practice exists or not. If the outcome of the analysis is that there are circumstanctial evidence that an anticompetitive practice exists, the complaint is admited into a sanctionatory process, if not, the case is declared improcedent. E. If the agency intends not to pursue a complaint, is it required to adopt a decision addressed to the complainant explaining its reasons? For all the decisions taken on the proceeding of a complaint are stated in an explained and justified resolution. The resolutions are made public and notified to the parties involved in the case. F. Is there a time limit counted from the date of receipt of a complaint by the competition agency for taking the decision on whether to investigate or reject it? For the preliminary investigation there is no time limit, but by law, the case has to be resolved in a period of 12 months counted from the day the complaint is filed or the ex officio case is opened.
  7. 7. 6. Leniency policy3 A. What is the official name of your leniency policy (if any)? With the amendment made to the Competition Law in 2007, there is now the possibility to not apply the aggravation of the sanction if an economic agent colaborates in the investigation of an agreement amongst competitors. The formal procedure is still in process. B. Does your jurisdiction offer full leniency as well as partial leniency (i.e. reduction in the sanction / fine), depending on the case? Because the agreement amongst competitor is considered a gross misconduct, the Competition Law states that if proven, there will be an aggravation of the fine. In case one agent colaborates with the Superintendency, that aggravation will not apply for him, but there is always a sanction. C. Who is eligible for full leniency [only for the first one to come forward or for more participants in the cartel]? - D. Is eligibility for leniency dependent on the enforcing agency having either no knowledge of the cartel or insufficient knowledge of the cartel to initiate an investigation? In this context, is the date (the moment) at which participants in the cartel come forward with information (before or after the opening of an investigation) of any relevance for the outcome of leniency applications? No, eligibility depends in the moment that the participant of the alleged cartel come forward with information, the kind of collaboration they bring and the value of the proof they present. E. Who can be a beneficiary of the leniency program (individual / businesses)? It applies to any economic agent (whether it is a individual agent or a business) F. What are the conditions of availability of full leniency: - G. What are the conditions of availability of partial leniency (such as reduction of sanction / It will depend in the quality and value of the documentation presented as proof. It has to be sufficient and the collaboration must to be given throughout the entire proceeding 3 For the purposes of this template the notion of ‘leniency’ covers both full leniency and a reduction in the sanction or fines. Moreover, for the purposes of this template terms like ‘leniency’ ‘amnesty’ and ‘immunity’ are considered as synonyms.
  8. 8. fine / imprisonment): H. Obligations for the beneficiary after the leniency application has been accepted: As mentioned above, full colaboration throughout the proceeding I. Are there formal requirements to make a leniency application? There is no formal proceedure yet. J. Are there distinct procedural steps within the leniency program? To be determined K. At which time during the application process is the applicant given certainty with respect to its eligibility for leniency, and how is this done? To be determined L. What is the legal basis for the power to agree to grant leniency? Is leniency granted on the basis of an agreement or is it laid down in a (formal) decision? Who within the agency decides about leniency applications? To be determined M. Does your legislation have a marker system? If yes, please describe it. No N. Does the system provide for any extra credit 4 for disclosing additional violations? No O. Is the agency required to keep the identity of the beneficiary confidential? If yes, please elaborate. Yes, during the proceedure. P. Is there a possibility of appealing an agency’s decision rejecting a leniency application? Q. Contact point where a leniency application can be lodged: To be determined 4 Also known as: “leniency plus”, “amnesty plus” or “immunity plus”. This category covers situations where a leniency applicant, in order to get as lenient treatment as possible in a particular case, offers to reveal information about participation in another cartel distinct from the one which is the subject of its first leniency application.
  9. 9. R. Does the policy address the possibility of leniency being revoked? If yes, describe the circumstances where revocation would occur. Can an appeal be made against a decision to revoke leniency? S. Does your policy allow for “affirmative leniency”, that is the possibility of the agency approaching potential leniency applicants? 7. Investigative powers of the enforcing institution(s)5 A. Briefly describe the investigative measures available to the enforcing agency such as requests for information, searches/raids 6 , electronic or computer searches, expert opinion, etc. and indicate whether such measures requires a court warrant. In El Salvador, investigative powers are given to the competition authority via the Competition Law (Articles 44 and 50 of the Law). The Superintendent can request relevant reports or documents, summon any person related to the case, carry out inspections, searches and raids and examine, books, registries, documentation, computers and other property, and take statement of the people found in the place were the inspection/search/raid takes place. The “Superintendencia de Competencia” is an independent administrative institution, who has total freedom to investigate any issue regarding an anticompetitive practice, but since the institution is part of the administrative power, it is important to explain that it cannot perform certain types of mandatory searches, such as raids, without the authorization of a judge, because of the special nature of the raid. B. Can private locations, such as residences, automobiles, briefcases and persons be searched, raided or inspected? Does this require authorisation by a court? To carry out an inspections is a legal power granted to the Superintendencia de Competencia and can take place at the belongings of a natural or legal person. The Superintendent may carry out the necessary investigations for the proper enforcement of the Competition Law. During inspections he may examine, order attested copies or take out extracts of the books,documents and even accounting data, and retain them for a term no longer than ten days, if necessary. Experts in the subject matter under investigation can accompany him during these inspections. Searches and raids can also be perfomed in private location but it requires an authorization by a court and a detailled 5 “Enforcing institutions” may mean either the investigating or the decision-making institution or both. 6 “Searches/raids” means all types of search, raid or inspection measures.
  10. 10. descripción of the object of the raid C. May evidence not falling under the scope of the authorisation allowing the inspection be seized / used as evidence in another case? If yes, under which circumstances (e.g. is a post-search court warrant needed)? The raid can only be authorized by a court, and the agency can seize all the evidence needed for the ongoing investigation, therefor is of great importance that the raid authorization is made so sufficient as possible so all evidence can be collected. If the agency finds other evidence for another case it can't be seized but there is the possibility that the agency may not have another opportunity to collect it. No case has yet occured regarding this and when it does, it could be discused in the constitutional courts D. Have there been significant legal challenges to your use of investigative measures authorized by the courts? If yes, please briefly describe them. There has been only one raid since the amendment of the law that gave the Superintendencia that faculty. The request for the court's authorization was made with enough justification and many supporting documents and it was granted, but in 2012 the Supreme Court ruled that it was an unlawful judicial authorization for one of the economic agents. The Superintendencia has appealed that ruling and is awaiting a decission. 8. Procedural rights of businesses / individuals A. Key rights of defence in cartel cases: El Salvador legal system apply the principle of due process. All allegations or evidence presented to the Superintendencia must be put in written. The testimonial proof can be accepted but the declaration must have been done in the presence of all the involved parties. The parties have the right of access to documentation, not clasiffied as confidential, in possession of the enforcing authority, right to a written statement of the case against the defendant, right to respond to cases in writting, right to confront companies or individuals that make allegations against defendants, right to legal representation before enforcing authorities, among others. B. Protection awarded to business secrets (competitively sensitive information): is there a difference depending on whether the information is provided under a compulsory legal order or provided under informal co-operation? There is no difference depending on the way the information was provided. It is a duty of Superintendent, Art. 13 f) of the law, to protect the confidentiality of business, commercial and official information kept in the file of the Superintendence. Only the Directors, the Superintendent, the officials and employees in charge of the investigation, research or study, will have access to the information, as well as consultants hired for that purpose, according to the law.
  11. 11. 9. Limitation periods and deadlines A. What is the limitation period (if any) from the date of the termination of the infringement by which the investigation / proceedings must begin or a decision in the merits of the case must be made? The Superintendencia has 5 years to start an investigation regarding an anticompetitive practice, but once it starts the procedure, the institution has 12 months to make a decision. B. What is the deadline, statutory or otherwise (if any) for the completion of an investigation or to make a decision in the merits? 12 months, as mentioned above. C. What are the deadlines, statutory or otherwise (if any) to challenge the commencement or completion of an investigation or a decision regarding sanctions? There is a revision remedy in order to challenge the final ruling of a case, which has to be filed in up to five days after the ruling has ben notified. This ends the administrative procedure. The Judicial Power, through the Contentious Administrative Courtroom (Sala de lo Contencioso Administrativo), may revise the decision via the contentious administrative remedy, which is a form of control of the legality of the ruling (while the case is being studied and revised here, the mentioned courtroom can suspend the effects of the ruling), which has to be filed 60 days after the ruling has been notified. 10. Types of decisions A. Please list which types of decisions on the merits of the case can be made in cartel cases under the laws listed under Section 1. Order to bring the infringement to end and the imposition of a fine. B. Please list which types of decisions on the merits of the case can be made in hardcore cartel cases under the laws listed under Section 1 (if different from those listed under 10/A).
  12. 12. C. Can interim measures 7 be ordered during the proceedings in cartel cases? (if different measures for hardcore cartels please describe both 8 .) Which institution (the investigatory / the decision-making one) is authorised to take such decisions? What are the conditions for taking such a decision? According to article 13 s) of the law, the superitendent can issue the necessary precautionaty remedies to insure the effectiveness of the fainal resolution. They can be issued at any moment during the investigation phase of the santionary procedure, and may consist on temporary suspension of activities, subdue certain products or services to particular conditions, amongst others. The precautionary remedies will be mantained as long as the causes that originated them persist. 11. Sanctions for procedural breaches (non-compliance with procedural obligations)9 A. Grounds for the imposition of procedural sanctions / fines: When an economic agent who deliberately or negligently fail to supply the information requested by the Competition Superintency, or if they collaborate, provide incomplete or inaccurate information. B. Type and nature of the sanction (civil, administrative, criminal, combined): Administrative (fine) C. On whom can procedural sanctions be imposed? The sanction can be imposed to the natural or legal person to whom the information was required D. Criteria for determining the sanction / fine: Days delayed to provide information from the time period given by the competition authority to do so. E. Are there maximum and / or minimum sanctions / fines? There is no maximun sanction. The fine will increase until the economic agent comply with the requirement of information. The maximun is only established on the daily basis (10 minimun salaries per day). 7 In some jurisdictions, in cases of urgency due to the risk of serious and irreparable damage to competition, either the investigator or the decision-making agency may order interim measures prior to taking a decision on the merits of the case [e.g.: by ordering the immediate termination of the infringement]. 8 Only for agencies which answered “yes” to question 2.C. above 9 In some jurisdictions non-compliance with procedural obligations (e.g. late provision of requested information, false or incomplete provision of information, lack of notice, lack of disclosure, obstruction of justice, destruction of evidence, challenging the validity of documents authorizing investigative measures, etc.) can be sanctioned.
  13. 13. 12. Sanctions on the merits of the case A. Type and nature of sanctions in cartel cases (civil, administrative, criminal, combined): On whom can sanctions be imposed? Administrative If there are damages made to a particular agent, there are procedures in the judiciary he can filed. The sanctions would be imposed to the corporation or to the individual guilty of performing the practice. B. Criteria for determining the sanction / fine: To impose a sanction the Competition Superintendency must weigh the severity of the infringment, the damage caused, the effects on third persons, the size of the market, the duration of the anticompetitive practice or if the economic agent involved is a repeated offender. C. Are there maximum and / or minimum sanctions / fines? The maximun fine that can be imposed up to 5000 minimum salaries. D. Guideline(s) on calculation of fines: [name and reference number, availability (homepage address) and indication of the languages in which these materials are available] E. Does a challenge to a decision imposing a sanction / fine have an automatic suspensory effect on that sanction / fine? If it is necessary to apply for suspension, what are the criteria? This can occur in the contentious administrative remedy in the Supreme Court of Justice, if the court decides to suspend the payment of the fine as a precautory measure. The suspention is not automatic and needs to be evaluated in each case by the Supreme Court. 13. Possibilities of appeal A. Does your law provide for an appeal from a decision that there has been a violation of a prohibition of cartels? If yes, what are the grounds of appeal, such as questions of law or fact or breaches of procedural requirements? There is no ad hoc form of appeal for a case like this, but the ordinaty remedies for all cases can be used: Revision remedy filed at the Board of Directors of the Institution and the Contentious Administrative Remedy filed at the Supreme Court, which is a form of control of the legality of the ruling by the Judicial Power, where there is opportunity to present arguments regarding law, facts and procedural issues. B. Before which court or Revision: Board of Directors of the Superintendencia, same
  14. 14. agency should such a challenge be made? [if the answer to question 13/A is affirmative] authority that filed the decision. Contentious Administrative: Contentious Administrative Courtroom of the Supreme Court of Justice.

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